Supreme Court Announces New Exigency Test for Blood Draws from Unconscious DWI Suspects

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Late last month, the Supreme Court decided Mitchell v. Wisconsin, 588 U.S. ___ (June 27, 2019), a case in which the petitioner argued that the State of Wisconsin violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant, following his arrest for impaired driving. Like many other states, including North Carolina, Wisconsin has a state statute that permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s conviction, though no single opinion from that court commanded a majority. 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.” Though no justice found such a statutory exception and the judgment below was vacated, the outcome was not a win for the petitioner. Instead, a plurality of the court announced a State-favorable exigency rule, which it instructed the lower court to apply on remand.

Facts. A law enforcement officer began looking for Gerald Mitchell after receiving a report that he was driving while impaired. The officer soon found Mitchell wandering near a lake. Mitchell was stumbling and slurring his words and had difficulty standing. Mitchell blew into a portable breath test, which registered a breath alcohol concentration of 0.24 percent. The officer arrested Mitchell for impaired driving and began to drive him to the police station, where he planned to perform a breath test on an evidential instrument. Mitchell’s condition worsened during the drive. After it became clear Mitchell would not be able to perform a breath test, the officer took him to a nearby hospital for a blood draw. Mitchell was unconscious by the time they arrived. The officer took Mitchell inside in a wheelchair, read the statutory implied consent rights to an unresponsive Mitchell, and directed hospital personnel to withdraw Mitchell’s blood. Mitchell’s blood sample was analyzed and showed a blood alcohol concentration of 0.22 percent.

Procedural history. At Mitchell’s trial for driving while impaired, he moved to suppress the results of the blood test, alleging that the warrantless blood draw violated his Fourth Amendment rights. The State argued that Mitchell consented to the blood draw by driving on Wisconsin roadways, citing provisions of the state’s implied consent laws that said as much. The trial court denied the motion to suppress. Mitchell was convicted of impaired driving and appealed. The Wisconsin Supreme Court affirmed Mitchell’s conviction by a 5-2 margin, though (as discussed here) the justices disagreed about how the principles announced in  Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), applied to blood draws carried out pursuant to implied consent statutes that carried only civil penalties.

Supreme Court opinion. Justice Alito, joined by Chief Justice Roberts, Justice Breyer and Justice Kavanaugh announced the judgment of the court and wrote the plurality opinion. The plurality noted at the outset that the Court’s opinions approving the general concept of implied consent laws did not rest on the idea that such laws create actual consent to the searches they authorize. Instead, those opinions have approved actions taken pursuant to the statutory schemes developed to combat impaired driving after determining that the actions authorized by statute comported with the Constitution.

The plurality observed that the Court had previously determined that an officer may withdraw blood from an impaired driving suspect without a warrant if the facts of a particular case establish exigent circumstances. Missouri v. McNeely, 569 U.S. 141 (2013); Schmerber v. California, 384 U. S. 757, 765 (1966). While the natural dissipation of alcohol is insufficient by itself to create per se exigency in impaired driving cases, exigent circumstances may exist when that natural metabolic process is combined with other pressing police duties (such as the need to address issues resulting from a car accident) such that the further delay necessitated by a warrant application risks the destruction of evidence.

The plurality reasoned that in impaired driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more pressing needs involving health or safety (such as the need to transport an unconscious suspect to a hospital for treatment) may leave the officer no time to obtain a warrant. Thus, the plurality determined that when an officer has probable cause to believe a person has committed an impaired driving offense and the person’s unconsciousness or stupor requires him to be taken to the hospital before a breath test may be performed, the State may “almost always” order a warrantless blood test to measure the driver’s blood alcohol concentration without offending the Fourth Amendment. The plurality did not rule out that in an “unusual case,” a defendant could show that his or her blood would not have otherwise been withdrawn had the State not sought blood alcohol concentration information and that a warrant application would not have interfered with other pressing needs or duties. The plurality remanded the case because the petitioner had no opportunity to make such a showing.

The fifth vote. Justice Thomas concurred in the judgment only, writing separately to advocate for overruling Missouri v. McNeely, 569 U.S. 141 (2013), in favor of a rule that the dissipation of alcohol creates an exigency in every impaired driving case that excuses the need for a warrant.

Controlling authority. Marks v. United States, 430 U.S. 188, 193 (1977) established that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”‘ Under this rule, it appears that the four-Justice plurality opinion is binding on lower courts. Justice Thomas’s view that an exigency exists in every case involving the dissipation of alcohol necessarily encompasses the plurality’s narrower “almost always” exigency rule.

The dissenters. Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented, reasoning that the Court already had established that there is no categorical exigency exception for blood draws in impaired driving cases, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case. The dissent noted that in light of that precedent, Wisconsin’s primary argument was always that the petitioner consented to the blood draw through the State’s implied-consent law. Certiorari review was granted on the issue of whether this law provided an exception to the warrant requirement. The dissent criticized the plurality for resting its analysis on the issue of exigency, an issue it said Wisconsin had affirmatively waived.

Justice Gorsuch dissented by separate opinion, arguing that the Court had declined to answer the question presented, instead upholding Wisconsin’s implied consent law on an entirely different ground, namely the exigent circumstances doctrine.

What does this mean for NC? G.S. 20-16.2(b) permits an officer to direct the taking of a blood sample from an unconscious defendant without first advising the defendant of his or her implied consent rights or seeking the defendant’s consent. The North Carolina Supreme Court in State v. Romano, 369 N.C. 678 (2017) (discussed here) held, however, that this statutory provision was unconstitutional as applied to the defendant in that case because it permitted a warrantless search that violated the Fourth Amendment. The Romano court concluded that the circumstances of the case did not establish exigent circumstances: multiple officers were present; the magistrate’s office was only a few miles away; search warrants for blood are fill-in-the-blank forms that are not time-consuming; and magistrates were on-duty and available. The Romano court’s exigency analysis does not comport with the test set out in Mitchell.  Because Romano was suspected of DWI, was unconscious, and was transported to the hospital where his blood was withdrawn for medical and law enforcement purposes, it appears that the withdrawal of his blood would, if evaluated under the Mitchell test, satisfy the exigency exception. Officers reluctant to rely on the statutory rule following Romano may be more optimistic in the wake of Mitchell about the chances that the results of warrantless blood draws will be admissible. That said, the most fail proof course of action remains to secure a warrant whenever possible.

What does this mean for implied consent?  None of the justices relied upon the legal fiction of implied consent. The plurality explained that its previous “decisions have not rested on the idea that [implied consent] laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize” and did not rely on the consent exception in Mitchell. Slip op. at 5. Justice Sotomayor wrote that she agreed “[w]ith that sliver of the plurality’s reasoning.” Slip op. at 7 (Sotomayor, J., dissenting). She stated that she “would go further and hold that the state statute, however phrased, cannot itself create the actual and informed consent that the Fourth Amendment requires.” Id.

The lack of support for the theory of implied consent is not a huge blow to the State in impaired driving cases given that breath tests may be performed incident to a suspect’s arrest and blood tests may almost always be performed without a warrant in cases in which an impaired driver is transported to the hospital for treatment. It may, however, prove significant in death by vehicle cases in which there is no probable cause to believe the defendant is impaired.

The plurality noted that Wisconsin, like North Carolina, authorizes blood alcohol testing of drivers involved in accidents that cause death even without probable cause of impaired driving, but did not address the lawfulness of those provisions. Slip op. at 3 n.1. Requiring implied consent testing of persons without probable cause for an impaired driving or alcohol-related offense raises constitutional concerns if such testing is viewed as lawful not because it is premised on true consent, but instead because it merely authorizes what could constitutionally be compelled. Such a search would be unreasonable, and unconstitutional, under a traditional Fourth Amendment analysis absent probable cause to believe that it would lead to evidence of a crime.

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