Mitchell v. Wisconsin (U.S. Supreme Court, June 2019)

Fourth Amendment – Under some circumstances, law enforcement’s need to take a suspect’s blood for testing can constitute an “exigent circumstance” that is exempted from the Fourth Amendment’s warrant requirement

Law enforcement arrested Gerald Mitchell after administering a breath test that indicated Mitchell was driving while intoxicated. The officers took Mitchell to a hospital, where his blood was drawn, without a warrant and while he was unconscious. Mitchell moved to suppress the results of the blood test as an “unreasonable search” under the Fourth Amendment. The Wisconsin Supreme Court affirmed his conviction, and the Supreme Court granted certiorari.

A plurality of the U.S. Supreme Court held that conducting the blood test on Mitchell while he was passed out was permissible under the “exigent circumstance” exception to the Fourth Amendment’s warrant requirement. Writing for the plurality, Justice Alito wrote that it was immaterial that most of the lower courts and the state of Wisconsin had been arguing that the search was allowed under Wisconsin’s implied consent law, under the assumption that there were no exigent circumstances, as there were sufficient facts here to create a rule “for an entire category of cases” where a motorist suspected of drunk driving is unconscious and cannot be given a breath test. Detailing the safety interests at stake in preventing DUIs and the limited time to gather evidence of intoxication, the plurality held that the exigent-circumstances exception “almost always permits a blood test…when a driver is unconscious.” The Court remanded to give Mitchell the opportunity to show that his was a rare case where a defendant can show “that his blood would not have been drawn if police had not been seeking BAC information” and where police could have reasonably sought a warrant.

Concurring in the judgment, Justice Thomas argued that there should be a per se rule under which, regardless of whether the driver is conscious, the “natural metabolization of alcohol in the blood stream” creates an inherent exigent circumstance that justifies a warrantless blood test. The plurality’s presumption, he wrote, would “rarely be rebutted” but would still impose a burden on officers.

Dissenting, Justice Sotomayor argued that the Constitution requires that officers to get a warrant for a blood draw of a DUI suspect “if possible.” She noted that Wisconsin conceded that officers had time to get a warrant for Mitchell’s blood and that no exigent circumstances were present.  She also argued that the plurality was contrary to Supreme Court precedent holding that there is no categorical exigency exception for blood draws and that exigent circumstances must be justified on a case-by-case basis.

Justice Gorsuch dissented as well, arguing that the Court had granted certiorari to review Wisconsin’s implied consent rule as applied to unconscious motorists, and he asserted that the plurality had declined to answer the question presented.

On certiorari from the Supreme Court of Wisconsin

Opinion by Alito, joined by Roberts, Breyer, and Kavanaugh

Concurring Opinion by Thomas

Dissenting Opinion by Sotomayor, joined by Ginsburg and Kagan

Dissenting Opinion by Gorsuch

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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