July 3, 2018 - The state Supreme Court has upheld the warrantless blood draw of a suspected drunk driver who was unconscious when the blood draw was performed.
In State v. Mitchell, 2018 WI 84 (July 3, 2018), a Wisconsin Supreme Court majority (5-2) ruled that police did not violate the Fourth Amendment rights of an unconscious driver, Gerald Mitchell, when officers directed a blood draw without a warrant.
Three justices ruled that Wisconsin drivers give implied consent to blood draws if there is probable cause to believe they are intoxicated, and drivers forfeit a right to withdraw consent if they ingest so much alcohol that they become unconscious.
“We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin’s roads and drinking to a point evidencing probable cause of intoxication,” wrote Chief Justice Patience Roggensack in a lead opinion.
“Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity … to withdraw his consent previously given.”
Two justices – Justice Daniel Kelly and Justice Rebecca Bradley – said the warrantless blood draw on Mitchell did not violate the Fourth Amendment, creating a five-justice majority, but for a different reason. Kelly said the blood draw was not illegal because Mitchell was arrested for OWI and police believed critical evidence would be lost.
Justice Ann Walsh Bradley and Justice Shirley Abrahamson dissented, concluding that implied consent is different than “actual consent” under the Fourth Amendment.
The Stop and the Blood Draw
In 2013, police received a tip that Mitchell was possibly driving drunk in his van. Less than an hour later, a Sheboygan police officer found Mitchell shirtless near a beach and covered in sand. His speech was slurred and his walking appeared unbalanced.
Mitchell admitted that he drove prior to parking the vehicle and said he parked because he felt too drunk to drive. The officer initiated a field sobriety test and administered a preliminary breath test that returned a blood alcohol concentration of 0.24.
The officer arrested Mitchell and transported him to the police station, but Mitchell’s condition deteriorated and the officer transported him to the hospital for a blood draw.
There, police informed Mitchell of his statutory opportunity to withdraw consent to a blood draw but he was unresponsive and incapacitated and did not answer.
Mitchell remained unconscious while hospital staff drew his blood at police direction, and the blood draw showed a blood alcohol concentration of 0.222.
The state charged Mitchell with operating a motor vehicle while intoxicated (OWI), seventh offense, and driving with a prohibited alcohol concentration (PAC).
Before trial, Mitchell moved to suppress the warrantless blood draw under the Fourth Amendment, which prohibits unreasonable searches and seizures.
The circuit court denied Mitchell’s motion to suppress and he was ultimately convicted. An appeals court certified the case for direct appeal to the state Supreme Court.
Consent Given, Withdrawal Forfeited
The lead opinion, by Chief Justice Patience Roggensack, noted that “context is part of the totality of circumstances that courts should review when consent to search is at issue.” Here, the context is highway regulation.
“That drunken driving has resulted in and necessarily increased state regulation of the privilege of driving on public roadways is well known,” the chief justice wrote.
“Therefore, the context of well-publicized regulations forms part of the totality of circumstances we examine to determine whether a driver who has been arrested for OWI consented to be searched.”
Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood or urine” to determine the presence of drugs or alcohol.
“Consent is complete at the moment the driver begins to operate a vehicle upon Wisconsin roadways if the driver evidences probable cause to believe that he or she is operating a vehicle while intoxicated,” Chief Justice Roggensack wrote.
The lead opinion also explained that under U.S. Supreme Court precedent, it is “constitutionally permissible to impose civil penalties as a consequence for refusing to submit to a blood draw” and there is no constitutional right to refuse one.
While drivers can withdraw consent to a blood draw – and face the civil penalties for doing so – they may forfeit the right by conduct, the lead opinion noted.
“Here, Mitchell drank sufficient alcohol to render himself unconscious. He had a BAC of 0.222. It is no wonder that he passed out,” the chief justice wrote. “Through his conduct, he forfeited all opportunity to withdraw the consent to search that he had given.”
The lead opinion also rejected Mitchell’s challenge, as “unreasonable,” to the presumption under Wis. Stat section 343.305(3)(b), which says an unconscious person not capable of withdrawing consent “is presumed not to have withdrawn consent.”
The lead opinion said the presumption is valid only if there is probable cause to believe the driver “has violated statutory proscriptions on use of intoxicants.”
Concurrence and Dissent
Justice Daniel Kelly wrote a concurrence, joined by Justice Rebecca Bradley. They said the implied consent law “cannot justify the blood draw performed on Mr. Mitchell.”
However, Justice Kelly said a warrantless blood draw is reasonable “when an individual has been arrested for OWI, the suspect is unconscious, and there is a risk of losing critical evidence through the human body’s natural metabolization of alcohol.”
The concurring opinion said the legislature, through an implied consent law, cannot waive away a person’s constitutional right against unreasonable searches. But here, the warrantless blood draw was reasonable as the only means to obtain critical evidence.
Justice Ann Walsh Bradley, in a dissent joined by Justice Shirley Abrahamson, said blood draws are “particularly intrusive” and consent must be more than implied.
“By relying on the implied consent laws, the lead opinion attempts to create a statutory per se exception to the constitutionally mandated warrant requirement,” Bradley wrote. “Consent solely by way of an implied consent statute is constitutionally untenable.”