A warrantless blood draw from an unconscious driver who became unconscious by the time he arrived at the hospital was reasonable under a state law that permits warrantless BAC testing of those incapable of consent by implied consent. Remanded, however, to enable him to develop whether the BAC test would have otherwise been done. Mitchell v. Wisconsin, 2019 U.S. LEXIS 4400 (U.S. June 27, 2019). The syllabus:
Petitioner Gerald Mitchell was arrested for operating a vehicle while intoxicated after a preliminary breath test registered a blood alcohol concentration (BAC) that was triple Wisconsin’s legal limit for driving. As is standard practice, the arresting office drove Mitchell to a police station for a more reliable breath test using evidence-grade equipment. By the time Mitchell reached the station, he was too lethargic for a breath test, so the officer drove him to a nearby hospital for a blood test. Mitchell was unconscious by the time he arrived at the hospital, but his blood was drawn anyway under a state law that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so. The blood analysis showed Mitchell’s BAC to be above the legal limit, and he was charged with violating two drunk-driving laws. Mitchell moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreasonable searches” because it was conducted without a warrant. The trial court denied the motion, and Mitchell was convicted. On certification from the intermediate appellate court, the Wisconsin Supreme Court affirmed the lawfulness of Mitchell’s blood test.
Held: The judgment is vacated, and the case is remanded.
2018 WI 84, 383 Wis. 2d 192, 914 N. W. 2d 151, vacated and remanded.
JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH, concluded that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant. Pp. 5–17.
(a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota, 579 U.S. ___, ___. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the “exigent circumstances” exception, which allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U.S. 141, 149. In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Id., at 156. But in Schmerber v. California, 384 U.S. 757, the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver’s stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing. Pp. 5–7.
(b) Under the exigent circumstances exception, a warrantless search is allowed when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, 569 U.S., at 149. Pp. 7–16.
(1) There is clearly a “compelling need” for a blood test of drunk driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest—a “compelling” and “paramount” interest, Mackey v. Montrym, 443 U.S. 1, 17–18. Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver’s BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield, 579 U.S., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___. And such testing must be prompt because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream,” “literally disappearing by the minute.” McNeely, 569 U.S., at 169 (ROBERTS, C. J., concurring). Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, “a blood draw becomes necessary.” Id., at 170. Pp. 9–12.
(2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency. In such a case, as in Schmerber, an officer could “reasonably have believed that he was confronted with an emergency.” 384 U.S., at 771. And in many unconscious-driver cases, the exigency will be especially acute. A driver so drunk as to lose consciousness is quite likely to crash, giving officers a slew of urgent tasks beyond that of securing medical care for the suspect—tasks that would require them to put off applying for a warrant. The time needed to secure a warrant may have shrunk over the years, but it has not disappeared; and forcing police to put off other urgent tasks for even a relatively short period of time may have terrible collateral costs. Pp. 12–16.
(c) On remand, Mitchell may attempt to show that his was an unusual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Pp. 16–17.
JUSTICE THOMAS would apply a per se rule, under which 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. Missouri v. McNeely, 569 U.S. 141, 178 (THOMAS, J., dissenting). Pp. 1–4.
ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion.