Mitchell v. Wisconsin
Mitchell v. Wisconsin
Dissenting Opinion
We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees-by the very act of driving-to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin's law on an entirely different ground-citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed. Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.
Opinion of the Court
I
A
In Birchfield v. North Dakota , 579 U.S. ----,
Wisconsin's implied-consent law is much like those of the other 49 States and the District of Columbia. It deems drivers to have consented to breath or blood tests if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses.
B
The sequence of events that gave rise to this case began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that petitioner Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell wandering near a lake. Stumbling and slurring his words, Mitchell could hardly stand without the support of two officers. Jaeger judged a field sobriety test hopeless, if not dangerous, and gave Mitchell a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Jaeger arrested Mitchell for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment.
On the way, Mitchell's condition continued to deteriorate-so much so that by the time the squad car had reached the station, he was too lethargic even for a breath test. Jaeger therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness on the ride over and had to be wheeled in. Even so, Jaeger read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%.
Mitchell was charged with violating two related drunk-driving provisions. See §§ 346.63(1)(a), (b). He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against "unreasonable searches" because it was conducted without a warrant. Wisconsin chose to rest its response on the notion that its implied-consent law (together with Mitchell's free choice to drive on its highways) rendered the blood test a consensual one, thus curing any Fourth Amendment problem. In the end, the trial court denied Mitchell's motion to suppress, and a jury found him guilty of the charged offenses. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State's implied-consent law was sufficient to show that Mitchell's test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. See
II
In considering Wisconsin's implied-consent law, we do not write on a blank slate. "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 ----,
Over the last 50 years, we have approved many of the defining elements of this scheme. We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against self-incrimination. See Schmerber v. California ,
These cases generally concerned the Fifth and Fourteenth Amendments, but motorists charged with drunk driving have also invoked the Fourth Amendment's ban on "unreasonable searches" since BAC tests are "searches." See Birchfield , 579 U.S., at ----,
We have also reviewed BAC tests under the "exigent circumstances" exception-which, as noted, allows warrantless searches "to prevent the imminent destruction of evidence." Missouri v. McNeely ,
Like Schmerber , this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunk-driving cases. In Schmerber , a car accident heightened that urgency. And here Mitchell's medical condition did just the same.
Mitchell's stupor and eventual unconsciousness also deprived officials of a reasonable opportunity to administer a breath test. To be sure, Officer Jaeger managed to conduct "a preliminary breath test" using a portable machine when he first encountered Mitchell at the lake. App. to Pet.
*2534for Cert. 60a. But he had no reasonable opportunity to give Mitchell a breath test using "evidence-grade breath testing machinery." Birchfield , 579 U.S., at ----,
"There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest.... The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery."Id., at ----,136 S.Ct., at 2192 .
Because the "standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station" or another appropriate facility,
III
The Fourth Amendment guards the "right of the people to be secure in their persons ... against unreasonable searches" and provides that "no Warrants shall issue, but upon probable cause." A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable. See Birchfield , 579 U.S. at ----,
A
The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential. Here we add a word about each of these points.
First , highway safety is a vital public interest. For decades, we have strained our vocal chords to give adequate expression to the stakes. We have called highway safety a "compelling interest," Mackey ,
*2536Breithaupt , supra , at 439,
Second , when it comes to fighting these harms and promoting highway safety, federal and state lawmakers have long been convinced that specified BAC limits make a big difference. States resorted to these limits when earlier laws that included no "statistical definition of intoxication" proved ineffectual or hard to enforce. See Birchfield , 579 U.S., at ---- - ----,
There is good reason to think this strategy has worked. As we noted in Birchfield , these tougher measures corresponded with a dramatic drop in highway deaths and injuries: From the mid-1970's to the mid-1980's, "the number of annual fatalities averaged 25,000; by 2014 ..., the number had fallen to below 10,000."
Third , enforcing BAC limits obviously requires a test that is accurate enough to stand up in court,
Enforcement of BAC limits also requires prompt testing because it is "a biological certainty" that "[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour.... Evidence is literally disappearing by the minute." McNeely ,
It is no wonder, then, that the implied-consent laws that incentivize prompt BAC testing have been with us for 65 years and now exist in all 50 States. Birchfield , supra , at ----,
Finally, when a breath test is unavailable to promote those interests, "a blood draw becomes necessary."
*2537McNeely ,
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. It would be perverse if the more wanton behavior were rewarded-if the more harrowing threat were harder to punish.
For these reasons, there clearly is a "compelling need" for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.
B
We held that there was no time to secure a warrant before a blood test of a drunk-driving suspect in Schmerber because the officer there could "reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence."
"We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was ... appropriate ...."384 U.S., at 770-771 ,86 S.Ct. 1826 .
Thus, exigency 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, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.
1
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.
Indeed, in many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park. And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene. In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay-and imprecision-of any subsequent BAC test.
In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born-just the kind of grim dilemma it lives to dissolve.
2
Mitchell objects that a warrantless search is unnecessary in cases involving unconscious drivers because warrants these days can be obtained faster and *2539more easily. But even in our age of rapid communication,
"[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge.... And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest." McNeely ,569 U.S., at 155 ,133 S.Ct. 1552 .
In other words, with better technology, the time required has shrunk, but it has not disappeared. In the emergency scenarios created by unconscious drivers, 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.
IV
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.
* * *
The judgment of the Supreme Court of Wisconsin is vacated, and the case is remanded for further proceedings.
It is so ordered.
Justice THOMAS, concurring in the judgment.
Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving-except when they aren't. Compare ante , at 2537, with ante , at 2539. The plurality's presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it. "The better (and far simpler) way to resolve" this case is to apply "the per se rule" I proposed in Missouri v. McNeely ,
I
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Although the Fourth Amendment does not, by its text, *2540require that searches be supported by a warrant, see Groh v. Ramirez ,
In recent years, this Court has twice considered whether warrantless blood draws fall within an exception to the warrant requirement. First, in McNeely , a divided court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement.
II
The "exigent circumstances" exception applies when "the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment." King ,
As I have explained before, "the imminent destruction of evidence" is a risk in every drunk-driving arrest and thus "implicates the exigent-circumstances doctrine." McNeely ,
Instead of adopting this straightforward rule, the plurality makes a flawed distinction between ordinary drunk-driving cases in which blood alcohol concentration evidence "is dissipating" and those that also include "some other [pressing] factor." Ante , at 2533, 2537, 2539. But whether "some other factor creates pressing health, safety, or law-enforcement needs that would take priority over a warrant application" is irrelevant. Ante , at 2537. When police have probable cause to conclude that an individual was driving drunk, probative evidence is dissipating by the minute. And that evidence dissipates regardless of whether police had another reason to draw the driver's blood or whether "a warrant application would interfere with other pressing needs or duties." Ante , at 2539. The destruction of evidence alone is sufficient to justify a warrantless search based on exigent circumstances. See generally *2541McNeely ,
Presumably, the plurality draws these lines to avoid overturning McNeely . See
* * *
The Court has consistently held that police officers may perform searches without a warrant when destruction of evidence is a risk. United States v. Banks ,
Justice SOTOMAYOR, with whom Justice GINSBURG and Justice KAGAN join, dissenting.
The plurality's decision rests on the false premise that today's holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.
The State of Wisconsin conceded in the state courts that it had time to get a warrant to draw Gerald Mitchell's blood, and that should be the end of the matter. Because the plurality needlessly casts aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin does not urge, that the state courts did not consider, and that *2542contravenes this Court's precedent, I respectfully dissent.
I
In May 2013, Wisconsin police received a report that Gerald Mitchell, seemingly intoxicated, had driven away from his apartment building. A police officer later found Mitchell walking near a lake, slurring his speech and walking with difficulty. His van was parked nearby. The officer administered a preliminary breath test, which revealed a blood-alcohol concentration (BAC) of 0.24%. The officer arrested Mitchell for operating a vehicle while intoxicated.
Once at the police station, the officer placed Mitchell in a holding cell, where Mitchell began to drift into either sleep or unconsciousness. At that point, the officer decided against administering a more definitive breath test and instead took Mitchell to the hospital for a blood test. Mitchell became fully unconscious on the way. At the hospital, the officer read Mitchell a notice, required by Wisconsin's so-called "implied consent" law, which gave him the opportunity to refuse BAC testing. See
Mitchell was charged with violating two Wisconsin drunk-driving laws. See §§ 346.63(1)(a), (b). He moved to suppress the blood-test results, arguing that the warrantless blood draw was an unreasonable search under the Fourth Amendment. In response, Wisconsin conceded that exigent circumstances did not justify the warrantless blood draw. As the State's attorney told the trial court, "There is nothing to suggest that this is a blood draw on a[n] exigent circumstances situation when there has been a concern for exigency. This is not that case." App. 134. Instead, Wisconsin argued that the warrantless blood draw was lawful because of Wisconsin's implied-consent statute.
The trial court denied Mitchell's motion to suppress, and a jury convicted him of the charged offenses. On appeal, the State Court of Appeals noted that Wisconsin had "expressly disclaimed that it was relying on exigent circumstances to justify the draw,"
On certification from the state appellate court, the Supreme Court of Wisconsin upheld the search.
II
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant. Vernonia School Dist. 47J v. Acton ,
The warrant requirement is not a mere formality; it ensures that necessary judgment calls are made " 'by a neutral and detached magistrate,' " not " 'by the officer engaged in the often competitive enterprise of ferreting out crime.' " Schmerber v. California ,
The carefully circumscribed exceptions to the warrant requirement, as relevant here, include the exigent-circumstances exception, which applies when " 'the exigencies of the situation' make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable," Kentucky v. King ,
A
Blood draws are "searches" under the Fourth Amendment. The act of drawing a person's blood, whether or not he is unconscious, "involve[s] a compelled physical intrusion beneath [the] skin and into [a person's] veins," all for the purpose of extracting evidence for a criminal investigation. Missouri v. McNeely ,
For decades, this Court has stayed true to the Fourth Amendment's warrant requirement and the narrowness of its exceptions, even in the face of attempts categorically to exempt blood testing from its protections. In Schmerber , a man was hospitalized following a car accident.
*2544
More recently, in McNeely , the Court held that blood tests are not categorically exempt from the warrant requirement, explaining that exigency "must be determined case by case based on the totality of the circumstances."
In Birchfield , the Court rejected another attempt categorically to exempt blood draws from the warrant requirement. 579 U.S., at ----,
B
Those cases resolve this one. Schmerber and McNeely establish that there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case. And from Birchfield , we know that warrantless blood draws cannot be justified as searches incident to arrest. The lesson is straightforward: Unless there is too little time to do so, police officers must get a warrant before *2545ordering a blood draw. See 579 U.S., at ----,
Against this precedential backdrop, Wisconsin's primary argument has always been that Mitchell consented to the blood draw through the State's "implied-consent law." Under that statute, a motorist who drives on the State's roads is "deemed" to have consented to a blood draw, breath test, and urine test, and that supposed consent allows a warrantless blood draw from an unconscious motorist as long as the police have probable cause to believe that the motorist has violated one of the State's impaired driving statutes. See
The plurality does not rely on the consent exception here. See ante , at 2532. With that sliver of the plurality's reasoning I agree. I would go further and hold that the state statute, however phrased, cannot itself create the actual and informed consent that the Fourth Amendment requires. See Randolph ,
III
Rather than simply applying this Court's precedents to address-and reject-Wisconsin's implied-consent theory, the plurality today takes the extraordinary step of relying on an issue, exigency, that Wisconsin has affirmatively waived.
"In particular, this case is not susceptible to resolution on the ground of exigent circumstances. No testimony was received that would support the conclusion that exigent circumstances justified the warrantless blood draw. [The officer] expressed agnosticism as to how long it would have taken to obtain a warrant, and he never once testified (or even implied) that there was no time to get a warrant." App. 66.
The exigency issue is therefore waived-that is, knowingly and intentionally abandoned, *2546see Wood v. Milyard ,
Rather than hold Wisconsin to a concession from which it has never wavered, the plurality takes on the waived theory. As " 'a court of review, not of first view,' " however, this Court is not in the business of volunteering new rationales neither raised nor addressed below, and even less ones that no party has raised here. Timbs v. Indiana , 586 U.S. ----, ----,
There are good reasons for this restraint. Ensuring that an issue has been fully litigated allows the Court "the benefit of developed arguments on both sides and lower court opinions squarely addressing the question." Yee v. Escondido ,
These rules, in other words, beget more informed decisionmaking by the Court and ensure greater fairness to litigants, who cannot be expected to respond pre-emptively to arguments that live only in the minds of the Justices. Cf. Granite Rock Co. v. Teamsters ,
IV
There are good reasons why Wisconsin never asked any court to consider applying *2547any version of the exigency exception here: This Court's precedents foreclose it. According to the plurality, when the police attempt to obtain a blood sample from a person suspected of drunk driving, there will "almost always" be exigent circumstances if the person falls unconscious. Ante, at 2530. As this case demonstrates, however, the fact that a suspect fell unconscious at some point before the blood draw does not mean that there was insufficient time to get a warrant. And if the police have time to secure a warrant before the blood draw, "the Fourth Amendment mandates that they do so." McNeely ,
A
The exigent-circumstances exception to the Fourth Amendment warrant requirement applies if the State can demonstrate a "compelling need for official action and no time to secure a warrant." Michigan v. Tyler ,
Blood draws implicate a different type of exigency. The Court has "recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence." McNeely ,
In McNeely , Missouri urged the Court to adopt a categorical rule that the natural dissipation of alcohol from a person's bloodstream will always create exigent circumstances that allow police officers to order a blood draw without obtaining a warrant.
In that way, cases involving blood draws are "different in critical respects" from the typical destruction-of-evidence case that presents police officers with a " ' "now or never" ' " situation.
Moreover, although "the alcohol level in a person's blood begins to dissipate once the alcohol is fully absorbed,"
Meanwhile, as the Court has observed, significant technological advances have allowed for "more expeditious processing of warrant applications."
B
The reasons the Court gave for rejecting a categorical exigency exception in McNeely apply with full force when the suspected drunk driver is (or becomes) unconscious.
In these cases, there is still a period of delay during which a police officer might take steps to secure a warrant. Indeed, as the plurality observes, see ante, at 2537 - 2538, that delay is guaranteed because an unconscious person will need to be transported *2549to the hospital for medical attention. Such a delay occurred in Mitchell's case, even more so than it did in McNeely's. See McNeely ,
Likewise, an unconscious person's BAC dissipates just as gradually and predictably as a conscious person's does. Furthermore, because unconsciousness is more likely to occur at higher BACs, see Martin, Measuring Acute Alcohol Impairment, in Forensic Issues in Alcohol Testing 1, 8 (S. Karch ed. 2008), the BACs of suspected drunk drivers who are unconscious will presumably be higher above the legal limit-and thus remain above the legal limit for longer-than is true for suspects who are conscious and close to sobering up. And, of course, the process for getting a warrant remains the same.
All told, the mere fact that a person is unconscious does not materially change the calculation that the Court made in McNeely when it rejected a categorical exigency exception for blood draws. In many cases, even when the suspect falls unconscious, police officers will have sufficient time to secure a warrant-meaning that the Fourth Amendment requires that they do so.
C
The plurality distinguishes unconscious drunk-driving suspects from others based on the fact that their unconsciousness means that they will, invariably, need urgent medical attention due to their loss of consciousness. See ante, at 2537 - 2538. But the need for medical care is not unique to unconscious suspects. "Drunk drivers often end up in an emergency room," whether or not they are unconscious when the police encounter them. See McNeely ,
*2550Because the precedent is so squarely against it, the plurality devotes much of its opinion instead to painting a dire picture: the scene of a drunk-driving-related accident, where police officers must tend to the unconscious person, others who need medical attention, oncoming traffic, and investigatory needs. See ante, at 2538. There is no indication, however, in the record or elsewhere that the tableau of horribles the plurality depicts materializes in most cases. Such circumstances are certainly not present in this case, in which the police encountered Mitchell alone, after he had parked and left his car; indeed, Mitchell lost consciousness over an hour after he was found walking along the lake. The potential variation in circumstances is a good reason to decide each case on its own facts, as McNeely instructs and as the Court did in Schmerber . See McNeely ,
If and when a case like the one the plurality imagines does arise, however, the police officers would not be "force[d] ... to choose between" the "rival priorities" of getting a warrant and attending to "critical health and safety needs." Ante, at 2538. Of course, the police and other first responders must dutifully attend to any urgent medical needs of the driver and any others at the scene; no one suggests that the warrant process should interfere with medical care. The point is that, in many cases, the police will have enough time to address medical needs and still get a warrant before the putative evidence (i.e., any alcohol in the suspect's blood) dissipates. And if police officers "are truly confronted with a 'now or never' situation," they will be able to rely on the exigent-circumstances exception to order the blood draw immediately. McNeely ,
V
The Fourth Amendment, as interpreted by our precedents, requires police officers seeking to draw blood from a person suspected of drunk driving to get a warrant if possible. That rule should resolve this case.
The plurality misguidedly departs from this rule, setting forth its own convoluted counterpresumption instead. But the Fourth Amendment is not as pliable as the plurality suggests. The warrant requirement safeguards privacy and physical autonomy by "assuring citizens" that searches "are not the random or arbitrary *2551acts of government agents." Skinner v. Railway Labor Executives' Assn. ,
There is no doubt that drunk drivers create grave danger on our roads. It is, however, "[p]recisely because the need for action ... is manifest" in such cases that "the need for vigilance against unconstitutional excess is great."
The plurality today carries that burden for a State that never asked it to do so, not only here but also in a scattershot mass of future cases. Acting entirely on its own freewheeling instincts-with no briefing or decision below on the question-the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment. With respect, I dissent.
Wisconsin also authorizes BAC testing of drivers involved in accidents that cause significant bodily harm, with or without probable cause of drunk driving. See
Justice SOTOMAYOR's dissent argues that Wisconsin waived the argument that we now adopt, but the dissent paints a misleading picture of both the proceedings below and the ground for our decision.
First, as to the proceedings below, the dissent contends that the sole question certified to the Wisconsin Supreme Court was " 'whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin's implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.' " Post , at 2542 (quoting App. 61). That is indeed how the intermediate appellate court understood the issue in the case, but the State Supreme Court took a broader view, as was its right. It regarded the appeal as presenting two questions, one of which was "whether a warrantless blood draw from an unconscious person pursuant to
Second, after noting that the State did not attempt below to make a case-specific showing of exigent circumstances, the dissent claims that our decision is based on this very ground. But that is not at all the basis for our decision. We do not hold that the State established that the facts of this particular case involve exigent circumstances under McNeely . Rather, we adopt 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. Those are just the sorts of features of unconscious-driver cases that Wisconsin brought to our attention, see Brief for Respondent 54-55; Tr. of Oral Arg. at 32-34, 48-51, which petitioner addressed, see Reply Brief at 14-15; Tr. of Oral Arg. at 15-20, 23-24, 29-31, 63-66. So it is entirely proper for us to decide the case on this ground. See Thigpen v. Roberts ,
While our exigent-circumstances precedent requires a " 'totality of the circumstances' " analysis, "the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us." McNeely ,
See NHTSA, Alcohol and Highway Safety: A Review of the State of Knowledge 167 (DOT HS 811 374, Mar. 2011).
See National Institutes of Health, U.S. National Library of Medicine, MedlinePlus, Unconsciousness (June 3, 2019), https://medlineplus. gov/ency/article/000022.htm (all Internet materials as last visited June 25, 2019).
Limmer et al., Emergency Care 598 (13th ed. 2016).
See id., at 593-594.
See J. Kwasnoski, G. Partridge, & J. Stephen, Officer's DUI Handbook 142 (6th ed. 2013) ("[M]ost hospitals routinely withdraw blood from the driver immediately upon admittance"); see also E. Mitchell & R. Medzon, Introduction to Emergency Medicine 269 (2005) ("Serum glucose and blood alcohol concentrations are two pieces of information that are of paramount importance when an apparently intoxicated patient arrives at the [emergency room]"); Mayo Clinic, Alcohol Poisoning: Diagnosis & Treatment (2019), https://www.mayoclinic.org/ diseases-conditions/alcohol-poisoning /diagnosis-treatment/drc-20354392. In this respect, the case for allowing a blood draw is stronger here than in Schmerber v. California ,
Although the Wisconsin Supreme Court referred to the lapse in time between the arrest and the blood draw as lasting "approximately one hour," App. 11, the state appellate court explained that Mitchell was arrested around 4:26 p.m. and that the blood draw took place at 5:59 p.m., id., at 63-64.
The Wisconsin Supreme Court rephrased the certified question, but, like the Court of Appeals, it recognized the State's concession that the exigency exception did not apply and, accordingly, did not consider the issue in reaching its decision. See
The Court in Birchfield concluded as much even while acknowledging that, in some cases, the suspect would be unconscious and thus unable to perform a breath test. 579 U.S., at ----,
The plurality criticizes me for supposedly suggesting that today's decision is based on a "case-specific showing of exigent circumstances." Ante, at 2534 n. 2. But I acknowledge that the plurality does not go so far as to decide that exigent circumstances justify the search in Mitchell's case, perhaps because the facts here support no such conclusion. See infra , at 2550. Indeed, rather than confine itself to the facts and legal issues actually presented in this case, the plurality instead creates a new de facto categorical rule out of thin air. The plurality does so without any evidence that such a rule is necessary in all, or even most, cases. See infra , at 2550. That the plurality reaches out to determine the rights of all drivers, rather than just Mitchell, makes today's decision more misguided, not less.
A related but distinct point: The issue on which the plurality resolves this case is not "fairly included" in the question on which the Court granted certiorari. See this Court's Rule 14.1(a). The Court granted certiorari to answer "[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement." Pet. for Cert. ii; accord, ante, at 2532 - 2533. The answer to that question is no. Whether exigent circumstances nevertheless require that the warrantless blood draw be upheld is an independent issue. True, that issue might affect the same "category of cases," ante , at 2534, n. 2, but that would be true of all sorts of matters not fairly included in the question on which this Court granted certiorari. "Both [issues] might be subsidiary to a question embracing both-[Was suppression appropriate?]-but they exist side by side, neither encompassing the other." Yee v. Escondido ,
The plurality's new rule, in addition to requiring a defendant to prove that the officer had no time to get a warrant, also appears to require the defendant to show that his blood would not have been drawn absent law enforcement's need for a blood sample. See ante, at 2539. That is, a suspect can never prevail under the new rule if the hospital staff draws his blood for its own noninvestigatory medical reasons. But, again, the relevant question is whether the evidence is likely to dissipate before the police can obtain a warrant. This particular aspect of the plurality's approach offers no help in answering that question. The plurality separately suggests that, because an unconscious person may well undergo a blood test for medical purposes regardless, its de facto categorical exception "could lessen the intrusion" of a blood draw. See ante, at 2538, n. 8. But the fact that "people voluntarily submit to the taking of blood samples as part of a physical examination," Birchfield v. North Dakota , 579 U.S. ----, ----,
In addition to offering a justification for Wisconsin's warrantless search that the State itself has disavowed, the plurality also relieves all States of their burden to justify similar warrantless searches. Until now, the Court has said that "the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches." Welsh v. Wisconsin ,
Reference
- Full Case Name
- Gerald P. MITCHELL v. WISCONSIN
- Cited By
- 148 cases
- Status
- Published