No Warrant Needed to Draw Blood if Suspect is Unconscious

In Mitchell v. Wisconsin, in a 5-4 decision on June 27, 2019, the US Supreme Court held that police do not need to get a search warrant before drawing blood from an unconscious DUI suspect.

The case turns on the Supreme Court’s definition of “exigent circumstances.” In a transparent attempt to reconcile the Court’s prior irreconcilable opinions and allow police to take blood without a warrant in many situations as possible, the Court finds that 1) police do not need a warrant if the suspect is unconscious, 2) Schmerber v. California stands for the proposition that police do not need a warrant if the suspect was involved in a car wreck, but 3) police still need a warrant if they want to draw blood after an ordinary, uncomplicated DUI stop.

The Court resurrects the government’s persistent argument that the dissipation of alcohol over time is an exigency that justifies a warrantless blood draw, despite having previously rejected that argument.

Although I won’t get into all the details here, this is one case where the dissenting opinions are worth reading because they point out the many inaccuracies in the majority’s opinion…

When do Exigent Circumstances Justify a Warrantless Blood Draw?

The Fourth Amendment requires that the government get a warrant from a “neutral and detached magistrate” before searching or seizing a person or their property.

Then there are the exceptions that swallowed the rule long ago as legislatures and courts have incrementally prioritized law enforcement above Fourth Amendment rights…

One of those exceptions is “exigent circumstances.” If there is an emergency that would prevent an officer from seeking a warrant, it does not make sense to require the officer to get a warrant.

For example, if someone is being attacked inside a home, an officer does not need to get a warrant before entering to prevent a murder. Or, if there is a good reason to believe that drugs or other evidence will be destroyed, the officer can enter a residence and secure it before getting a warrant.

The problem is when police and courts abuse the exigent circumstances exception, using it to abrogate the Fourth Amendment when it suits them.

In 1966, in Schmerber v. California, the US Supreme Court held that exigent circumstances justified a warrantless blood draw where a suspect had been in an accident and refused to consent. The Schmerber Court also suggested that the warrantless search was justified as a “search incident to arrest” under the circumstances.

In 1966, when a police officer did not have the benefit of modern technology, this made sense. In today’s world, warrants can be obtained by telephone and computer. Police officers carry smartphones, and most have computers installed in their vehicles. Many jurisdictions have on-call magistrates 24 hours a day.

Neither an unconscious suspect nor a car wreck will prevent an officer from getting a warrant as they work the case or having another officer get the warrant for them. A car wreck is an emergency, yes. But, in most cases, it is not an emergency that delays or prevents an officer from getting a warrant.

Prior to 2013, there were no US Supreme Court cases that said police must get a warrant before drawing a person’s blood, and therefore there was no need for exigent circumstances to justify the warrantless intrusion.

Does the Dissipation of Alcohol Over Time = Exigent Circumstances?

In McNeely v. Missouri, in 2013, the Court revisited Schmerber’s assumption that the dissipation of alcohol over time is an exigent circumstance justifying a warrantless blood draw, finding that dissipation of alcohol alone is not an exigent circumstance and that police must get a warrant before forcing a blood draw unless there is something that prevents the officer from seeking the warrant.

In 2016, the US Supreme Court decided Birchfield v. South Dakota, reaffirming the McNeely decision and expanding it to hold that:

  • It can’t be a crime when a DUI suspect refuses consent for a blood draw;
  • Police can’t threaten prosecution to get someone to consent to a blood draw; but
  • It can be a crime to refuse to give a breath sample.

The Birchfield Court drew a distinction between breath tests and blood draws, again rejecting Schmerber’s rationale that dissipation of alcohol over time constitutes exigent circumstances and Schmerber’s suggestion that a warrantless blood draw can be justified as a search incident to arrest.

The Pendulum Swings – Chipping Away at McNeely and Birchfield

In Mitchell v. Wisconsin, today’s Supreme Court would like to take us back to the days of Schmerber. They found that, when a suspect is unconscious, regardless of the circumstances, the dissipation of alcohol and difficulty in obtaining a warrant will almost always justify a warrantless blood draw.

Their holding is based on a number of inaccurate assumptions – for example, that an officer will be unable to obtain a warrant if the suspect is unconscious, or that somehow the fact that a suspect is unconscious makes the potential dissipation of alcohol more serious.

The Court goes on to add that a car wreck will also constitute exigent circumstances, and says that Schmerber stands for the proposition that a car wreck constitutes exigent circumstances, while Mitchell v. Wisconsin’s holding is that an unconscious suspect constitutes exigent circumstances:

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.”

So, the new rule set by the Mitchell Court seems to be that a warrantless blood draw does not violate the Fourth Amendment if the suspect is unconscious or was in a car wreck, but, if it was an “ordinary” DUI like that in McNeely, a warrant is required.

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