- The Washington Times - Thursday, June 27, 2019

The Supreme Court ruled Thursday that drawing blood from an unconscious driver without a warrant is legal.

The 5-4 decision said in cases where there are exigent circumstances, such as a driver being so drunk that he passed out, an officer doesn’t need to obtain a warrant before asking for blood to be taken for purposes of testing for impaired driving.

“In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant,” said Justice Samuel A. Alito Jr., writing for the court’s main opinion.

His decision was joined by Chief Justice John G. Roberts Jr., Justice Brett M. Kavanaugh and Justice Stephen G. Breyer.

Justice Clarence Thomas also agreed with the court’s ruling, but in a separate opinion said a drunken driver’s blood alcohol concentration is dissipating by the minute, so police should be able to obtain evidence without a warrant even without an officer having other pressing concerns.

The case was brought by Gerald Mitchell, who was so drunk while driving that officers thought it would be dangerous to administer a field sobriety test. When they administered an initial breath test his blood alcohol content (BAC) was .24, or three times the legal limit for driving in Wisconsin.

Mitchell passed out before police could administer a more thorough blood test, and they took him to the hospital. Even though he was unconscious, the officer read him a statement giving him a chance to refuse the blood test — then asked the doctors to draw his blood.

He showed a .222 BAC 90 minutes after his arrest, and prosecutors charged him — for a seventh time — with drunken driving.

Mitchell challenged his conviction, arguing he was too incapacitated to consent to police taking the blood sample that was used to convict him. His lawyer argued police should have obtained a warrant before taking his client’s blood.

Wisconsin, like most states, has an implied consent law, meaning anyone driving on its roads agrees to have blood taken. It’s one of 29 states that also has an “unconscious clause” addressing drivers found incapacitated but suspected of driving while drunk.

Lower courts have upheld some of those laws but ruled that others violate the Fourth Amendment. Thursday’s decision validates laws like Wisconsin’s.

Justice Sonia Sotomayor disagreed with the majority’s ruling, saying that lawyers for the state of Wisconsin acknowledged law enforcement had time to obtain a warrant before taking Mitchell’s blood, but chose not to.

“When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant,” she wrote in a dissent joined by Justices Ruth Bader Ginsburg and Elena Kagan.

Justice Neil M. Gorsuch also dissented from the court’s decision, but for entirely different reasons.

He said in his separate opinion that the court shouldn’t even have decided the case because the legal question presented to the court was the legality of Wisconsin’s implied consent law rather than the legal doctrine of exigent circumstances.

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