588 U.S. ___ , 139 S. Ct. 2525 (2019)

One-Sentence Takeaway

When a police officer has 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 the officer has a reasonable opportunity to administer a standard evidentiary breath test, the police officer may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.

Summary

A 2019 United States Supreme Court opinion in which the Court considered the application of the exigent circumstances exception to warrantless blood tests on unconscious persons believed to have been driving under the influence.

The defendant was arrested for drunk driving and transported to the police station.  On the way, the defendant, already too intoxicated for field sobriety tests, grew so lethargic that he was unable to perform a breath test. The officer drove the defendant to a nearby hospital for a blood test.  The defendant lost consciousness en route and remained unconscious while the sample was taken.

A plurality of the court concluded the exigent circumstances rule “almost always” permits a warrantless blood test of unconscious drivers. The plurality explained: “exigency exists when (1) [blood alcohol content] evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.”  In the plurality’s view, both factors are met when a drunk-driving suspect is unconscious.

Accordingly, the plurality concluded: “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 driver’s [blood alcohol content] without offending the Fourth Amendment.”

The Mitchell Opinion Examined In Other Cases

McGraw v. State, 289 So.3d 836, 838-839 (Fla. 2019), citations omitted:

As explained above, this Fourth Amendment issue was addressed by the United States Supreme Court in Mitchell.  As in our case, Mitchell involved a warrantless blood draw from an unconscious DUI suspect.  The Wisconsin Supreme Court upheld the blood draw, concluding that it was reasonable because both Wisconsin’s implied consent statute and the driver’s choice to drive on state highways rendered his implied consent to search constitutionally sufficient.  This is similar to the rationale that the Fourth District employed below.  The United States Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.”

The United States Supreme Court vacated the decision of the Wisconsin Supreme Court and held that a DUI suspect’s unconsciousness, combined with the necessity for a blood draw when an “evidentiary breath test” cannot be administered, creates a sufficient urgency to justify a warrantless blood draw under the exigent circumstances exception to the warrant requirement.  The plurality opinion explained:

[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious ... [such that] a warrantless blood draw is lawful.

The plurality opinion also made clear that the Supreme Court was “adopt[ing] a rule for an entire category of cases—those in which a motorist believed to have driven under the influence of alcohol is unconscious and thus cannot be given a breath test.”  (“This rule is not based on what happened in petitioner’s particular case but on the circumstances generally present in cases that fall within the scope of the rule.”). Despite its express adoption of a rule “almost always” authorizing warrantless blood draws on unconscious DUI suspects under the exigent circumstances exception to the warrant requirement, the Supreme Court did “not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties,” “Because Mitchell did not have a chance to attempt to make that showing,” *839 the Supreme Court determined that “a remand for that purpose [was] necessary.”

People v. Eubanks, 2019 IL 123525, ¶ 49-¶ 55, citations omitted:

While the present case was pending before us, the Supreme Court decided Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525.  The question in Mitchell was whether the police could conduct a warrantless blood test of an unconscious DUI suspect.  In Birchfield, the Supreme Court had held that a warrantless breath test could be administered as a search incident to an arrest of a DUI suspect but a warrantless blood test could not.  The difference is that breath tests “do not `implicat[e] significant privacy concerns,'” while blood tests are considered “`significant bodily intrusions'”

Mitchell presented the problem of a driver suspected of DUI who could not be administered a breath test because he was unconscious. Wisconsin has a statute that permits the testing of unconscious DUI suspects on the basis that they have not withdrawn statutory implied consent. The statute provides that a “`person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have’ withdrawn it.”  The Court noted that more than half the states have similar statutes.  In the state courts, Wisconsin argued that compliance with the implied-consent law rendered the blood test consensual and thus valid under the fourth amendment.  The Supreme Court granted certiorari to decide “`[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.'”

The Supreme Court declined to resolve the case on the basis that the driver had consented to the blood draw. The Court explained:

“`Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.’ Birchfield, 579 U.S., at ____ (slip op., at 36). But our decisions have not rested on the idea that these laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize.”

Instead, the Court resolved the case on the basis of exigent circumstances. The Court did so even though Wisconsin had not argued at any level that exigent circumstances were present and indeed had affirmatively conceded that it was not relying on exigent circumstances.

The Court first explained that there is a compelling need for a blood test of drunk-driving suspects when the driver’s condition renders a breath test impossible.  The Court then stated that most cases involving an unconscious driver will be controlled by Schmerber.  The Court read Schmerber as standing for the proposition that

“exigency exists when (1) [blood alcohol content (BAC)] evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.”

The Court explained that both factors will be present when the police are faced with an unconscious DUI suspect.

The Court explained how Schmerber‘s test for exigency applied to a situation involving an unconscious DUI suspect:

“In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness. 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.] 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. In such a case, as in Schmerber, an officer could `reasonably have believed that he was confronted with an emergency.’

The Court explained that an unconscious DUI suspect presents “just the kind of scenario for which the exigency rule was born.”

The Court was careful to note, however, that it was not departing from the totality-of-the-circumstances approach to determining exigent circumstances. The Court explained that, although a totality-of-the-circumstances approach must be used to determine exigency, the circumstances in drunk driving cases are often typical, and thus the Court may set forth “general rules” for the police to follow.  Accordingly, the Court stopped short of saying that exigent circumstances are always present when the police are faced with an unconscious drunk driving suspect:

“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 driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.”

Thus, Mitchell makes clear that, although the determination of exigent circumstances requires a totality-of-the-circumstances approach, courts may identify “general rules” that will apply in most cases. One of these “general rules” is that exigency will exist when BAC is dissipating and “some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.” Two such factors have been expressly identified: (1) when there has been a traffic accident causing personal injury (Schmerber) and (2) when the suspect is unconscious (Mitchell).

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