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Court of Appeals addresses exigency test in Mitchell v. Wisconsin on remand

State v. Gerald P. Mitchell, 2022 WI App 31; case activity (including briefs)

Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), held that when police have probable cause to believe a driver has committed a drunk driving offense and the driver is unconscious or stupefied to a point that requires hospitalization and precludes a breath test, police will be justified in getting a blood test without a warrant under the exigent circumstances exception unless the driver can show that; (1) his or her blood wouldn’t have been drawn if police weren’t seeking blood alcohol information; and (2) police didn’t reasonably conclude they had no time to seek a warrant given their other pressing needs or duties. See also State v. Richards, 2020 WI App 48, 393 Wis. 2d 772, 948 N.W.2d 359. Applying that test to Mitchell himself on remand, the court of appeals holds Mitchell hasn’t made the first showing and therefore the warrantless blood draw of him was reasonable.

Mitchell was conscious when arrested, though he was stumbling and having trouble standing to the point police decided against doing field sobriety tests. The took him to the police station for a breath test, but he was too “lethargic” even for that, so police decided to take him to the hospital for a blood draw. On the way to the hospital he lapsed into unconsciousness. At the hospital blood was drawn from Mitchell for medical and evidentiary purposes. (¶¶4, 14-15).

Mitchell argues the first prong of the Supreme Court’s test involves an assessment of whether, based on what they knew at the time they seek the evidentiary blood draw, the officers reasonably believed the driver’s blood would be drawn for medical reasons, even if they weren’t seeking BAC information. (¶11). To illustrate, in Richards the driver was found behind the wheel of a wrecked car; he was fading in and out of consciousness and was going to be flown to a hospital for urgent medical care. In contrast, Mitchell presented no immediately obvious need for hospitalization until after police had already decided to get a blood draw and were already taking him to the hospital for an evidentiary test. The desire for evidence spurred the decision to take him for a blood draw, rather than the recognition (as in Richards) that the need to get the defendant in for emergency medical care meant his blood would be drawn in any event.

The court of appeals rejects this argument, and basically says the fact there was a blood draw for medical reasons is all that matters, regardless of what the police knew at the time they decided to get an evidentiary blood draw. What the cops anticipated would happen in a particular case, the court says, “is completely irrelevant to the legality of the blood draw” if at some point there was a medical blood draw as well as an evidentiary one. (¶12).

This conclusion is inconsistent with the general rule that reasonableness under the Fourth Amendment is assessed by reference to what police knew at the time they acted, as well as with Mitchell‘s express statement that its test was justified because in the case of an unconscious driver already being taken in for emergency medical care, police can act to seek an evidentiary blood draw because they can “reasonably anticipate” that the driver’s blood will be drawn anyway for medical purposes. See Mitchell, 139 S.Ct. at 2537-38. The court’s conclusion also means that in a case (like Mitchell’s) where a conscious driver later lapses into unconsciousness while the officers apparently delayed in seeking a warrant, the police can effectively create the exigent circumstances that justify a warrantless search because the fortuitous unconsciousness will get them the cover afforded by a medical blood draw they otherwise couldn’t have reasonably anticipated at the time of arrest.

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