Warrantless Blood Tests and Unconscious Drivers – What United States v. Mitchell Does (and Doesn’t) Say

by Professor Jeffrey Jackson | September 10, 2019

On June 27, 2019, the last day of the term, the Supreme Court handed down its decision in Mitchell v. Wisconsin, __ U.S. ___, No. 18-6210 (June 27, 2019). The case, which addressed a blood draw conducted on an unconscious DUI suspect, was overshadowed by the two other cases handed down that day, one declaring partisan gerrymandering to be a nonjusticiable political question, and another continuing to block the addition of a citizenship question to the 2020 Census. Further, what coverage Mitchell received tended to be misleading, suggesting that the Court’s rule actually went further than it did. However, Mitchell, in which the Court, in a plurality opinion, determined that when a driver is unconscious, cannot be given a breath test, and is required to be taken to a hospital because of his or her condition, the exigent-circumstances doctrine generally permits a blood draw without a warrant, has the potential to be a useful case for law enforcement, prosecutors, defense attorneys and judges dealing with the very specific problem of a DUI suspect who is unconscious or otherwise unable to submit to a breath test.

The Unusual Nature of the Mitchell Plurality

At the outset, two things make Mitchell an unusual case. The first is that it is an unusual plurality opinion, with Justices Breyer, Kavanaugh and Chief Justice Roberts joining Justice Alito, and with Justice Thomas concurring. In interpreting plurality opinions, where no single rationale explaining the result enjoys the assent of five Justices, “'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'” Many times, this means that the controlling opinion is a concurring opinion that falls on narrower grounds somewhere between the plurality decision and the dissenting justices. In Mitchell, however, the concurring opinion of Justice Thomas was actually broader  than the plurality opinion, which means the plurality is the controlling opinion.

The second unusual part of Mitchell is that the Court decided in favor of the State of Wisconsin based on the exigent circumstances exception to the warrant requirement, even though Wisconsin did not argue that exception and had “expressly disclaimed that it was relying on exigent circumstances to justify the draw. In the lower courts, both the Wisconsin Court of Appeals and the Wisconsin Supreme Court recognized that the State was not arguing exigent circumstances and neither opinion addressed it. Nevertheless, both the plurality and Justice Thomas’s concurring opinion relied upon the exigent circumstances exception.

What Happened Here?

The facts of Mitchell are relatively straightforward. Police received a report that the defendant had driven away from his apartment building in an intoxicated state. The defendant was found by police walking around near his van.He was slurring his speech and had difficulty walking. A preliminary breath test revealed a blood-alcohol concentration (BAC) of 0.24%.

Police arrested the defendant and took him to the station.In a holding cell, he began to drift in and out of consciousness. Police then took him to a hospital for a blood draw. By the time he reached the hospital, the defendant was completely unconscious. Because he could not respond, police initiated a warrantless blood draw based upon Wisconsin’s implied consent law. No warrant for the blood draw was ever sought. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC at the time (approximately 90 minutes after his arrest) was 0.222%.

The Court’s Plurality Opinion

The Supreme Court’s decision in Mitchell falls within with the line of cases running from Schmerber v. California, 384 U.S. 757 (1966) through Missouri v. McNeely, 569 U.S. 141 (2013) and Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160 (2016). Mitchell essentially extends the reasoning of Schmerber regarding accident victims to cover some (but not all) unconscious drivers. Now, in both of those instances, warrantless blood draws are almost always constitutional absent exceptional circumstances.

The easiest way to understand the Court’s reasoning in this line of cases is actually to start at the end and work backwards. In Birchfield, the Court held that when a person is arrested for drunk driving, the search incident to arrest exception allows for a warrantless breath test, but not for the more invasive warrantless blood test. Thus, any warrantless blood test would have to be justified under some other exception to the warrant requirement. In McNeely, the Court rejected the idea that because blood-alcohol evidence is always dissipating due to “natural metabolic processes” a warrantless blood draw should always be allowable under the exigent circumstances exception to prevent the destruction of evidence. Instead, the Court held that each case of exigency should be judged under the totality of the circumstances, and that while “some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test,” “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Schmerber is an example of a situation where the exigent circumstances exception would apply. In Schmerber, the Court held that, under the facts, the warrantless blood draw from a motorist who had crashed his car and was being treated at the hospital at the time of arrest constituted exigent circumstances due to imminent destruction of evidence. In reaching this conclusion, the Court stated that because time had been taken to get the motorist to the hospital and to secure the scene of the accident, the time it would take police to obtain a warrant might have threatened the destruction of evidence.

In Mitchell, the Court likened the medical condition of the defendant to that in Schmerber. The plurality stated that the defendant’s stupor and eventual unconsciousness deprived the police of the opportunity to obtain a “standard evidentiary breath test”.The plurality emphasized that allowing police the ability to obtain such a test is important if the police are to enforce the law. Further, the plurality stated that not only were the same considerations that applied to the car accident victim in Schmerber present, but that:

Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care. Police can reasonably anticipate that such a driver might require monitoring, positioning, and support on the way to the hospital; that his blood may be drawn anyway, for diagnostic purposes, immediately on arrival; and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value. [Citation omitted.] All of that sets this case apart from the uncomplicated drunk-driving scenarios addressed in McNeely. Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception.

However, even after this analysis, the plurality opinion stopped short of a per se rule allowing the warrantless blood draw from an unconscious driver. Instead, the plurality announced a very specific rule to guide courts in evaluating an unconscious driver situation: “When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the BAC without offending the Fourth Amendment.” The only exception would be the “unusual case” where a defendant would be able to show: 1) that his blood would not have been drawn by the hospital if police had not been seeking BAC information; and 2) that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

So, Where are We Now?

Mitchell doesn’t hold, as some news outlets reported, that police can always take a blood test from an unconscious driver. It concerns only a very specific application of the exigent circumstances exception; where a driver is either unconscious or in a stupor such that an evidentiary breath test cannot be conducted, and the driver’s condition is such that he or she needs to be taken to a hospital. Absent both of those factors, the rule in Mitchell does not apply. Even then, Mitchell does not apply where the defendant can show that his blood would not have been drawn in any event by the hospital in time for it to be used as evidence and that it was unreasonable for the police officers to believe that a warrant application would interfere with other pressing needs or duties.

So, what does Mitchell actually do? Well, it clears up one specific issue that arises with some frequency in suspected DUI situations. It allows police to focus on the medical needs of the driver without going through the motions of getting a warrant that is almost certain to be granted in any event. At the same time, the plurality’s refusal to establish a per se rule allows for defendants to challenge situations where abuse of the rule may occur. For courts, it provides a framework for such challenges, and promotes consistency in application.

Jeffrey D. Jackson comes to Washburn Law from the Kansas Supreme Court where he was staff attorney for Death Penalty and Constitutional issues. Prior to that, he was a law clerk for the Honorable Mary Beck Briscoe in the U.S. Court of Appeals for the Tenth Circuit, law clerk to The Honorable Justice Robert E. Davis at the Kansas Supreme Court, an associate at Bennett & Dillon L.L.P., in Topeka and staff attorney for the Kansas Court of Appeals. Professor Jackson teaches in the law school's Legal Analysis, Research, and Writing Program and he is Director of the Center for Excellence in Advocacy.