Case No. 18-6210 | Wis.
Preview by Michael Fischer
In May 2013 police found Gerald Mitchell staggering around the banks of Lake Michigan just outside of Sheboygan, Wisconsin with his van parked nearby. Mitchell was reportedly belligerent and having difficulty standing upright. The officers had received a call from Mitchell’s neighbor earlier that day, who reported that Mitchell was threatening to commit suicide shortly before taking off in his van. As he would testify later, Mitchell admitted he was depressed and had consumed a half-liter of vodka and Mountain Dew along with approximately 40 pills. After coming upon Mitchell, the officers administered a roadside breath test which showed a blood alcohol concentration (“BAC”) of .24 and thereafter took him to the police department.
Since the roadside testing device used by the police was of limited accuracy and as such the results were inadmissible by state statute, the officers wanted to obtain a more reliable reading of Mitchell’s BAC. Another breath test was not possible, however, since Mitchell was so intoxicated that he was having trouble staying conscious. The officers decided to instead take Mitchell to the local hospital for a blood test, but when they arrived he was completely unresponsive. Regardless, the blood test was conducted and the results were later used against him to secure a conviction for operating while intoxicated with a prohibited blood alcohol concentration.
Mitchell appealed his conviction on the grounds that the withdraw of his blood was an unlawful search and seizure, because it was taken without a warrant or exigent circumstances. The State countered that under Wisconsin’s implied-consent statute, motorists consent to tests of this nature simply by driving on state roads and that Mitchell had not withdrawn his consent. After both the court of appeals and Wisconsin Supreme Court found for the State, Mitchell appealed to the United States Supreme Court. The issue before the Court is whether a statute authorizing state actors to draw blood from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
Mitchell argues that the Wisconsin statute did not create an exception since Fourth Amendment consent principles do not permit the state to consider a motorist to have consented to an unconscious blood withdraw solely based on their decision to drive. Brief for Petitioner at 12, Mitchell v. Wisconsin, No. 18-6210 (U.S. filed Feb. 25, 2019). This would, according to Mitchell, be contrary to the Court’s consistent rejection of a categorical exceptions to the warrant requirement in the context of drunk-driving cases. Id. Furthermore, Mitchell contends that the Fourth Amendment does not permit the state to impose a warrantless blood withdraw on an unconscious person as a condition of driving because this would constitute an unreasonable search. Id. at 36.
In response, the State counters that through the implied consent law, Mitchell provided valid consent under the Fourth Amendment since voluntary consent can be inferred from the circumstances and does not require a “knowing on-the-spot waiver.” Brief of the Respondent at 24–31, Mitchell, No. 18-6210 (U.S. filed Mar. 27, 2019). Additionally, the State argues that providing unconscious drivers the opportunity to withdraw consent is not required and that inferring consent in these narrow circumstances is reasonable since the consent “flows from the driver’s own choices.” Id. at 33–37. The State also argues that Wisconsin has a compelling interest in acquiring blood evidence from unconscious persons who drive while intoxicated and that the unconscious driver presumption is a “narrowly tailored and minimally intrusive” consent exception to the Fourth Amendment. Id. at 47–52.