Mitchell v. Wisconsin, No. 18-6210, 6/29/19, vacating and remanding State v. Mitchell, 2018 WI 84, Scotusblog page (including links to briefs and commentary)
This is the decision we’ve all been waiting for on whether a blood draw from an unconscious OWI suspect requires a warrant. Wouldn’t you know–the opinion is splintered. Alito, writing for 4 justices (a plurality, not a majority), concludes that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood draw with out a warrant. The plurality vacates the judgment and remands the case for a hearing so that Mitchell has a chance to show that there were no exigent circumstances in his case. Way to go, Andy Hinkel, for fending off the State’s contention that implied consent is actual consent.
Alito summarizes the plurality opinion this way:
Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed. Plurality at 1. (Emphasis supplied).
Thomas concurs “only in the judgment.” He describes the plurality rule this way: Exigent circumstances are generally present when police encounter a person suspected of drunk driving–except when they aren’t. He says this rule is too difficult to administer. Consistent with is separate opinions in Missouri v. McNeely and Birchfield v. North Dakota, he would hold that the natural metabolization of alcohol in the blood stream creates an exigency once police have probable cause to believe the driver is drunk, regardless of whether the driver is conscious. He would remand the case to SCOW for application of that rule.
Sotomayor dissents (joined by Ginsburg and Kagan). Here is the thrust of her opinion:
The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.
The State of Wisconsin conceded in the state courts that it had time to get a warrant to draw Gerald Mitchell’s blood, and that should be the end of the matter. Because the plurality needlessly casts aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin does not urge, that the state courts did not consider, and that contravenes this Court’s precedent, I respectfully dissent. Dissent at 1.
Guess what? Gorsuch also dissents because the plurality opinion didn’t decide the question presented. Here is his entire dissent:
We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees—by the very act of driving—to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed. Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.
So where does that leave Wisconsin? For now note that SCOTUS did not declare our implied consent statute unconstitutional. Also, like SCOW itself (see our post on the Mitchell cert grant and on SCOW’s decision in Mitchell) SCOTUS has fractured over this contentious issue. Five justices agree to vacate the judgment (hence you could call it a “defense win”!) but there is no clear, binding rule going forward.