Supreme Court Hears Oral Argument in Mitchell v. Wisconsin

Recently, the Supreme Court heard oral argument in Mitchell v. Wisconsin, which asks whether a state statute permitting a warrantless blood alcohol draw of an unconscious driver is authorized under the Fourth Amendment.

On May 30, 2013, police officers were dispatched in response to a report that an intoxicated individual was driving a gray van. The gray van was parked nearby a beach in Wisconsin. Officer Alex Jaeger found Gerald Mitchell walking near the beach. Mitchell was wet, shirtless, and covered in sand. Mitchell slurred his speech and had difficulty maintaining his balance. He told Officer Jaeger that he parked his car because he felt that he was too drunk to drive. 

Officer Jaeger did not believe it would be safe to conduct standard field sobriety tests, and instead, administered a preliminary breath test. The breath test indicated a blood alcohol concentration of 0.24 percent. Officer Jaeger then arrested Mitchell for operating a vehicle while intoxicated. On the drive to the police station, Mitchell’s condition deteriorated and Office Jaeger opted to transport Mitchell to a nearby hospital for a blood draw. Under Wisconsin law, a driver who operates a vehicle on state roads is assumed to consent to have his blood drawn for alcohol and drugs.

At the hospital emergency room, Officer Jaeger read to Mitchell a form that notified him of his statutory opportunity to withdraw his consent to a blood draw. However, Mitchell was “so incapacitated [that] he could not answer.” Officer Jaeger ordered the hospital staff to draw a sample of Mitchell’s blood, and the staff complied with this order. Mitchell was not awake during the procedure. The sample registered a blood alcohol concentration of 0.222 percent, and Mitchell was subsequently charged with driving while intoxicated.

Prior to trial, Mitchell moved to suppress the results of the warrantless blood draw, alleging the blood draw violated his rights under the Fourth Amendment and Wisconsin Constitution. The circuit court denied Mitchell’s motion to suppress, concluding that Officer Jaeger had probable cause to believe that Mitchell was driving while intoxicated, making the blood draw lawful. A jury convicted Mitchell of the charged offense.

Mitchell appealed to the Wisconsin Supreme Court his conviction on the argument that the warrantless blood draw violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Wisconsin Supreme Court found that under state law, Mitchell voluntarily consented to a blood draw by his conduct driving on Wisconsin’s roads and drinking to a point evidencing probably intoxication. The court also found that by drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under Wisconsin law, to withdraw his consent. The court then affirmed Mitchell’s conviction.

Mitchell filed a petition for a writ of certiorari with the Supreme Court. On January 11, 2019, the Supreme Court granted Mitchell’s petition. Oral argument was held on April 23, 2019.

On behalf of Mitchell, Public Defender Andrew Hinkel described the state’s argument as “bold and novel.” Hinkel argued that the state should not be able to excuse itself from the Fourth Amendment’s warrant requirement simply by enacting a statute that provides that residences of Wisconsin consent to a search. Hinkel warned that similar statutes could be enacted to authorize other types of searches.

Chief Justice John Roberts mentioned that “[i]gnorance of the law is no excuse.” He continued, “[a]nd if the law says if you’re going to operate a motor vehicle on our highways, you – you impliedly consent to this. And so people are supposed to know the law, so they know if they drive, that their – will be deemed to have consented.”

Justice Samuel Alito noted that although Mitchell portrays Wisconsin’s law as a consent law, “maybe what they’re really about is attaching a condition to the privilege of driving,” which “is a very dangerous activity.” Hinkel responded that the state has adequate means, other than a warrantless blood draw, to “vindicate its interest in – in catching and punishing drunk drivers.” Hinkel emphasized that “there is the availability of the warrant.”

Justice Stephen Breyer stated that if a suspect is unconscious, police officers are probably going to bring him to the hospital anyway. Justice Breyer further stated that once there, hospital staff are probably going to do a blood test. He posed to Hinkel why it is not reasonable to say that police can use the blood without having to get a warrant. Hinkel responded that if an officer wants access to that blood as evidence, then he should get a warrant.

Justice Sotomayor then offered numerous other arguments that Hinkel could make, and ultimately stated, “[i]ntrusive as searching someone’s home is, invading someone’s body is a different level of intrusion.” Hinkel agreed with Justice Sotomayor, and Chief Justice Roberts joked that Hinkel raised some good arguments there.

On behalf of the state of Wisconsin, Hannah Jurss, began her argument by stating that “[t]he fundamental question is reasonableness.” Jurss argued that when a driver drinks so much that he passes out, medical care will almost always involve a blood test, and police should not be required to obtain a warrant.

Justice Breyer stated that if police want to use the blood from the blood test as evidence, a warrant should be required as all the police officers need to do is make a phone call. The phone call would not interfere with medical treatment that the driver might be receiving. Justice Ruth Bader Ginsburg agreed that if officers want to seize blood or anything else, a warrant should be required.

Justice Elena Kagan also expressed that “what’s reasonable is you get a warrant – or you fall under one of the established, well-acknowledged, well-understood, historic exceptions to the warrant.” Justice Kagan asked Jurss to explain which exception applies here, or whether Jurss is saying that “we could do the reasonableness inquiry free-style.” Jurss responded that that the Court could decide this case under one of two theories “either consent or as a condition of driving, which would fall under a general reasonableness balancing test.” Jurss agreed that none of the recognized exceptions apply here.

Justice Kagan then focused on whether Mitchell ever consented to have his blood drawn. She suggested that if Mitchell had signed something at the Department of Motor Vehicles when he obtained a driver’s license, effecting his consent, the situation may be different. However, he never expressed consent to have his blood drawn here. With respect to the implied consent laws, Justice Kagan stated that these usually work “fine” because most drivers are conscious. However, she stated that an unconscious driver cannot consent to have his blood drawn.

Jurss responded that the “unconscious driver’s lack of having that opportunity is his fault, not the government’s.” Justice Kagan then stated that “the Fourth Amendment often applies against people who violate the law. And we don’t usually say: Tough luck. It’s your fault. You’re a criminal.”

Justice Sonia Sotomayor stated that this situation is “not quite ignorance of the law,” as raised by Chief Justice Roberts earlier in the argument. She stated that “[t]his is something substantially different because you’re talking about not ignorance of the law but knowledge that your body can be invaded by the police to secure evidence to prove you drove intoxicated.” Justice Sotomayor echoed Justice Kagan’s argument that there is “a presumption that you’re going to have a warrant if you think I’ve committed a crime before … you can invade my privacy. You have well-defined exceptions, exigent circumstances.” She then stated that Jurss stipulated that none of the exceptions to the warrant requirement apply here, and is basing her argument on implied consent. Justice Sotomayor then remarked “[t]hat’s really not consent in my mind.”

FEDagent will post an update when the Supreme Court issues a decision.

A transcript of the oral argument is posted here.


This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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