By on June 28, 2019

The Supreme Court has ruled that police may order blood drawn from an unconscious person suspected of driving under the influence without a warrant. While that sounds like a possible violation of the U.S. Constitution’s Fourth Amendment, which protects against unreasonable searches, justices in support of the practice claimed individuals consent to blood tests just by being on the road.

Their rationale? Wisconsin and a bunch of other U.S. states have laws that already make this legal and there’s a national precedent allowing for exigent circumstances. But let’s start with America’s Dairyland for some background. 

In 2013, a Wisconsin man named Gerald Mitchell was found by police with his van parked near Lake Michigan while he took a stroll on the beach. According to an account from NPR, neighbors had contacted emergency services to warn authorities that he was drunk and suicidal. When confronted, Mitchell took a breath test and was transported to a nearby hospital for blood work.

Earlier accounts claimed police immediately believed him to be drunk due to his being shirtless, damp, and staggering. However, during their trip to the hospital, Mitchell passed out in the car. Police ordered his blood drawn anyway. According to court documents, had taken a sizable amount of pills and washed it down with vodka and Mountain Dew and was charged at the hospital for driving under the influence. He later confessed to being extremely intoxicated and suicidal.

However, he also felt that having his blood drawn without consent violated the Fourth Amendment, especially since he wasn’t in the vehicle, and started the appeals process — making it all the way to the Supreme Court of the United States (Mitchell v. Wisconsin) in April of this year.

In a 5-4 vote on Thursday, the court upheld a Wisconsin law stipulating that anybody driving on a public road has automatically consented to having their blood drawn if police suspect them of a possible DUI. The court also noted that exigent circumstances, which is the national status quo gives cops the right to make such judgements for themselves.

If you’re unfamiliar with the term “exigent circumstances,” it’s basically any and all exceptions to the general requirement of a warrant under the Fourth Amendment searches and seizures. Police can search your home, person, vehicle, pull you over, arrest you, or (apparently) take your blood without permission if they suspect some criminal wrongdoing. Critics of the practice have claimed that, since there’s no clear standard for a rule applied so broadly, it encourages an abuse of power. The problem, they say, is that officers are effectively green lit to take extreme actions against citizens and their property with no guidelines when they probably should have been forced to procure a warrant.

Associate Justice Sonia Sotomayo emphasized that in lower courts, Wisconsin officials had already admitted there had been ample time to get a warrant — but believed the step wasn’t needed because of  the state’s implied consent rules. “Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” she argued. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

Sotomayor was joined by Justices Ruth Bader Ginsburg and Elena Kagan as Neil McGill Gorsuch claimed the issue never should have reached the Supreme Court in the first place. Meanwhile, Justices Samuel Alito, Stephen Breyer, Clarence Thomas, and Brett Kavanaugh joined Chief Justice John Roberts in the majority vote to uphold Wisconsin’s law.

From NPR:

In his concurring opinion, Thomas wrote that because the evidence of alcohol in drivers’ blood will dissipate over time, states can invoke the “exigent-circumstances doctrine” on that basis alone to allow police to order a blood test without a warrant. Explaining why he took a stand apart from Alito’s plurality opinion, Thomas wrote that it “adopts a rule more likely to confuse than clarify.”

Alito’s concurring opinion agreed that speed is vital in obtaining blood-alcohol evidence. But he also said that the demands on police officers’ time contribute to creating exigent circumstances that allow an exception to warrant requirements — especially if an unconscious motorist has caused a crash. And he noted that police usually take such drivers to the emergency room — removing their chance of administering a breath test at the police station.

“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”

Discussing the emergency conditions created by unconscious drivers, Alito said that “forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies,” he wrote, in an opinion that was joined by Breyer, Kavanaugh and Roberts.


[Image: Paul Biryukov/Shutterstock]


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49 Comments on “Supreme Court Rules Police Can Draw Blood From Drivers Without Warrant...”

  • avatar

    “claimed individuals consent to blood tests just by being on the road.”


    You’re breathing our air, now come with us comrade.

    • 0 avatar

      “Comrade” would imply a left wing authoritarian state, this ruling comes to us (mostly) through the courtesy of the conservative portion of the court.

      • 0 avatar

        My advice is to free yourself from the red-blue paradigm.

        It has and always been about the capstone of the pyramid vs the base which supports it.

      • 0 avatar

        There is no “left” or “right” anymore, it’s an illusion useful for manipulating voters as elections near.

        • 0 avatar

          IMHO, the Left are those who want power and wealth spread around, diffuse and diverse in a society. The Right wants to concentrate wealth and power in the hands of a few, at the expense of the many.
          One is more egalitarian, the other is more exclusive.

          • 0 avatar

            @ttacgreg – great definition.

          • 0 avatar

            _Honest_ too unlike most .


          • 0 avatar

            This is the best nutshell I’ve ever seen.

          • 0 avatar

            Right, just ignore the history of the Soviet Union. Oh and the People’s Republic of China. Wait, DPRK. Umm.. oh yeah Khmer Rouge.

            Millions killed in every instance.

            All power and wealth concentrated in a small party cadre in every instance.

            But just trying to spread it around right?

            You didn’t build that.

            Crack is whack, stop hitting the pipe.

          • 0 avatar

            The left uses the stupid and avaricious to destroy the hardworking and virtuous who might be a threat to their thirst for power. The right worries about every individual’s rights rather than ways of fooling the majority into crushing whatever minority is at present inconvenient. The tools of the left are people who fall for statements like Nate’s when he claims to be any kind of conservative.

  • avatar

    This case is a real hot potato and really angers me, so I’m going to sit this out as opposed to going on a tirade that I might regret

    If anyone wants to talk about cars I’ll be around

    • 0 avatar

      I concede you point, but simple ideas in and of themselves are harmless. The friction becomes when the free exchange of ideas becomes debate and conjecture.

  • avatar

    Why does the police’s need to gather evidence with speed in order to convict trump people’s 4th amendment rights?

    The opinions of the justices seem to suggest that rights ought to be suspended for the convenience of the police, when that’s exactly why these rights were enacted. The safety aspect is bunk because if someone is acting dangerously the police already have the power to stop them. The ability to draw blood at random doesn’t help that.

    • 0 avatar
      Mike Beranek

      Every minute that goes by before the test is administered, the body processes out the alcohol and the BAC goes down. The BAC can be significantly lower after just a couple hours, which could give the defense an opening to argue that their client wasn’t drunk at the time of the wreck.

    • 0 avatar

      The DWI exception renders everything else moot. Not blowing = knowledge of impairment, no 5th amendment issue. Change in DMV regulations by Governor (NY), over riding the Legislative Laws ? OK ! Says the Appeals Court in NY. Whenever there is a DWI related rule or law, the DWI Exception means the more restrictive way will win. Why ? Yes, DWI is bad, but no Judge or Politico wants to be on the MADD hit list. NY is the demonstration project state for MADD. There is pre-probation, a substance abuse evaluation, community service, a Victim Impact Panel (mandatory paid !!! attendance at a MADD presentation-you even have to pay the lobbying group..I only knew ONE judge who objected to this) and the DMV drinking driver course. Pre trial license suspension is also a thing. Literally, every single idea they come up with is passed in NY-and our District Attorneys vie for enforcement awards. I do my drinking on my back deck….

  • avatar

    I am so glad that I no longer live in the US. Each day the US seems to become more and more like NAZI Germany. For those of us who are old enough to remember when the people of the US were actually free this is disheartening. I feel for all of you who must try and survive in what the US is turning into. But I am so glad I left when I did.

    • 0 avatar

      “Each day the US seems to become more and more like NAZI Germany.”

      Not quite, more like a neo-feudalist state mixed with 1984 and they will use the tech to enforce the authoritarian nature of the establishment.

      “For those of us who are old enough to remember when the people of the US were actually free this is disheartening.”

      I agree. They started dismantling it in the 90s.

      Immigration Act of 1990
      Glass Steagall Repeal

      Thanks George!
      Thanks Bill!

    • 0 avatar
      Middle-Aged (Ex-Miata) Man

      More like the Weimar Republic, actually… the many failings of which brought about Nazism.

  • avatar

    Implied Consent is complete BS. Always has been.

    So they write into law that you give up your 4th Amendment rights? I don’t think so.

    We’re maybe “lucky” it seems to have stopped with driving.

    You own property in Town Z? You have given implied consent that we can search your property at any time simply by owning property here.

    You walking down the sidewalk? Implied consent by using the sidewalks in State Y. We can search you any time we feel.

    You can’t pass any law of any sort that papers over your rights.

    Then I am continually amazed at how the Supreme Court can twist anything to fit any outcome. According to the article THE GUY WASN’T IN HIS CAR. If the police picked him up after he had exited the vehicle, never saw him driving or even in the vehicle, how does implied consent even apply?? By this logic they can draw my blood anytime they want when they think I’ve been drinking because I drove a car once, 12 years ago, and therefore when they find me sitting on a chair wasted, can draw my blood because it falls under implied consent?

    Infuriating. Especially when you consider when it comes to your rights, the courts really shouldn’t be playing games and twisting logic like this.

    • 0 avatar
      Mike Beranek

      Owning property and using the sidewalk are not regulated activities, but operating a motor vehicle is because you could kill someone with that thing. In Illinois implied consent for Breathalyzer and field sobriety tests has been on the books for decades.
      Keep in mind that it’s the insurance industry that pushes these kinds of laws through legislation. They have an interest in keeping their bookie operations profitable.

      • 0 avatar

        “Owning property and using the sidewalk are not regulated activities” are you a .gov bot or living under a rock. Owning Property: Property taxes, building permits, zoning regulations, property upkeep codes, requirement to purchase government owned utilities etc….
        Walking on the Street: J-Walking, Intoxicated while in public (even if not doing anything) etc…

        I’m always amazed how we give away our liberty for the illusion of security.

        lately, it appears most new laws are to protect .gov and not the citizens. As long as the welfare checks keep coming in for rich and poor, this will continue.

    • 0 avatar
      SCE to AUX

      Agreed, Jerome10.

      I’m surprised to see myself siding with the liberals on the Court on this one. This fellow could have had his drink after he drove and left the vehicle.

      The Supreme Court has put us on a slippery slope that only Congress and the Executive can fix. But they won’t.

      • 0 avatar

        In this particular case I don’t see how any of it applies if there was no evidence he even drove the van there.

        In a case where someone is passed out at the wheel and plows through a crowd of people, I would certainly hope that they could draw blood to see why they were passed out. Could have been a heart attack, or BAC of 3x the limit.

        You can take my opinion with a large grain of salt though since I have had my share of people trying unsuccessfully in sharing the road with sober drivers.

    • 0 avatar

      “Implied Consent is complete BS.” In this case yes. In the medical profession… NO.

      In the cited example, a fellow “being shirtless, damp, and staggering” could act like he was drunk for multiple reasons. Hypothermia and diabetes are two that immediately come to mind. The fellow becoming unconscious could also be the result of medical conditions. This fellow’s appearance in an ER with this history would result in the attending physician ordering multiple blood tests to determine the cause.
      The police would not need to act quickly to gather evidence since the ER would have already collected samples. Any lab tests could be obtained under a judge’s warrant after the fact.

      I’m amazed at this Supreme Court Decision. Gerrymandering is okay and so is infringing on one’s right to privacy.

      • 0 avatar

        “Gerrymandering is okay and so is infringing on one’s right to privacy.”

        Disengenous as this isn’t about invasion of privacy .

        Besides, gerrymandering helps the rich not the average Blue Collar Joes like me and a few others here, be honest, that’s the _only_ reason it’s allowed and rewarded .


        • 0 avatar

          Nate, gerrymandering is done by BOTH political parties depending on who is in power at the time it is done, to enhance their party’s chances to dominate in the next election to keep them in power.

    • 0 avatar

      Driving is a privilege, not a right, unlike property ownership, or the ability to buy an assault rifle. The privilege begets a license, which is a less than a right, and does NOT give the same due process needed to take away a right. I don’t agree with this concerning driving licenses, don’t argue with ME, but that’s the law.

  • avatar

    I want every assurance that people behind the wheel are fit for duty…and if there was a non-intrusive way to prevent impaired people from driving we’d signup day one. BAC will allow authorities to piece together a timeline that led up to an incident and apportion blame or restitution….a drunk driver should never have the opportunity to be protected by their own unconsciousness….

    Anyone arguing that this is unreasonable is not someone I’d want on our roads anyway…these are likely the same subset of people who reside defiantly in the fast lane and hold up traffic based solely on principle…

    • 0 avatar

      This ruling IS unreasonable because the person in question wasn’t driving or even in a vehicle when the police approached him. While you can extrapolate that he may have driven there while drunk, in many cases, the police must witness the infraction or see physical evidence to support it to make an arrest.

      This should have been a publicly drunk or disorderly conduct citation, neither of which require a blood test. One could easily argue in court that he drove thee and THEN got drunk.

      This sets a precedent that unconscious people are still giving consent since they are explicitly saying no.

      This is not only medically impossible and lacking common sense, I can see that in the future a sleazy defense lawyer will ABSOLUTELY cite this precedent to defend a client accused of sexual assault.

  • avatar

    People should not drink and drive, period. Just call Uber/Lyft.

  • avatar
    Arthur Dailey

    Elon Musk looked out his window and smiled. Just one more reason for the switch to ‘self driving’ cars.

    And @28Cars is correct, we have to stop resorting solely to the outdated left/right construct when discussing politics.

  • avatar

    So if I don’t agree to waive my constitutional rights, I’m allowed to not have a driver’s license? Where do I not sign up?

    It smells of extortion, but the Driver’s License is a “contract” like any other, so if I’ve never agreed it, never set foot in a DMV and if or when I operate a “motor vehicle” without such a contract, but just on easements, paved or otherwise, have I broken a contract, broken a law or otherwise owe somebody for fines or dues even though I’m not currently a club member, or ever have been, and do their rules and policies apply to me, a non member?

  • avatar

    I’m sure the public transit lobby loves this. They’ll surely get more business now.

    The problem we have now is some overzealous cop taking this ruling completely out of context, pulls a guy over, knocks him out with a baton then draws his blood.

    “Not sure how that knot got there. He was like that when I got here.”

  • avatar

    can they draw blood in the field? the way i understand it is that getting blood drawn is the best choice if youve have a few too many. breathalyzer is immediate and pee can have a higher BAC. plus they have to take you to a hospital, wait for a nurse, etc. that can drop tenths off a BAC reading.

  • avatar

    I suspect there is a direct connection between this SCOTUS decision and the widely reported and bodycam video of the incident involving Salt Lake police detective Jeff Payne and University of Utah hospital nurse Alex Wubbels.

    On July 26, 2017, there was a horrific head-on collision between a fleeing driver being chased by another police dept and a semi on the highway. The fleeing driver died at the scene and the truck driver was badly burned and taken, unconscious, to nurse Wubbels’ medical facility.

    Detective Payne arrived a few hours later at the hospital and, at the request of the pursuing police agency (surely to cover their asses), demanded a sample of the unconscious semi driver’s blood without a warrant from the nurse on duty, Alex Wubbels, citing ‘implied consent’.

    Unfortunately for Detective Payne, the Salt Lake PD had agreed to a policy to not do exactly this about a year prior. Payne claimed no knowledge of the policy, so Nurse Wubbels provided Detective Payne with a copy. After cooling his heels for a couple hours, and discussing it with his superior, Payne had had enough of being told “No” by nurse Wubbels, grabbed the struggling, shrieking nurse (it sure looked like resisting arrest), slapped the cuffs on her, and told her she was being arrested for failure to comply and interferring with police.

    After sitting her in a police cruiser for a while, and Payne and his boss trying unsuccessfully to change her mind, they released her. The other PD had also told Payne and his boss (before Wubbels’ manhandling) to disregard the request but Payne went ahead and roughed her up, anyway. Payne was subsequently fired and his supervisor demoted.

    The gist is that, just like police having free license to do anything they want (including blowing people away) by simply saying, “they feared for their lives”, with this latest SCOTUS ruling, all they have to say to get an unconscious person’s blood is that they “suspect them of driving under the influence” with exactly zero legitimate probable cause.

    • 0 avatar

      “Payne was subsequently fired and his supervisor demoted” Seems like justice was served in that case.

      • 0 avatar

        The police department in question fired him only after videos of the arrest hit the internet and their was an associated outcry. He also worked as an EMT. They fired him immediately. No public outcry needed.

  • avatar

    The #1 thing ignored here is : driving is _not_ a right ~ .

    If you drive you should be willing to follow the rules .

    I agree that this guy having not been in his vehicle should have not been forced to give blood but that’s an entirely different situation apart from you who know you’re going to break the law crying wolf about ‘nanny state’ , ‘librals’ (of course) and the rest of the tripe you snowflakes always spew when you’re feeling guilty .

    Try acting responsibly once in your lives .


    • 0 avatar

      @Nate – I do agree that driving is not a “right”. It is a privilege…but… Laws exist to protect rights and privileges. Laws *should* apply equally to those making them and to those enforcing them. What good is a law when those making or enforcing them chose to ignore or manipulate them?

    • 0 avatar
      Tele Vision

      As regards BAC up here in Canada, the government recently made some changes to the laws. The most alarming is that the police can show up at your house up to two hours after you’ve driven a car and test you for alcohol and drugs. No warrant or any such thing. You blow over and it’s the same as if you’d driven through a checkstop. It was passed to prevent ‘bolus drinking’ but it could easily be used anytime, anywhere, as Probable Cause has been dismissed with, as well: the police can test anyone they pull over – and now they can pull anyone over for no reason at all.

      I’d have an impaired charge at about 7:30 PM most Fridays and nearly every Saturday, were they to concentrate on my house!

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