The United States Supreme Court granted certiorari a few weeks ago to consider whether a state statute authorizing the withdrawal of blood from an unconscious driver suspected of impaired driving provides an exception to the Fourth Amendment warrant requirement. The case, Mitchell v. Wisconsin, arose in Wisconsin, but the issue may sound familiar to practitioners in North Carolina. Our state supreme court held in State v. Romano, 369 N.C. 678 (2017) (discussed here) that the warrantless withdrawal of blood from an unconscious DWI suspect pursuant to state statute when there was no exigency violated the Fourth Amendment. The Supreme Court of Wisconsin reached a different conclusion in Mitchell. The case provides the United States Supreme Court with an opportunity to tie up the ends it left loose in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016) by clarifying how implied consent laws authorizing blood draws without a suspect’s consent do or do not comport with the Fourth Amendment.
Facts in Mitchell. Law enforcement officers began looking for Gerald Mitchell one May afternoon in 2013 after receiving a call that he was driving while impaired. An officer found Mitchell walking near a beach a short time later. Mitchell was “wet, shirtless and covered in sand.” State v. Mitchell, 914 N.W.2d 151, 154 (Wis. 2018). In addition, his speech was slurred and he “had difficulty maintaining his balance.” Id. Mitchell admitted to drinking before he drove. In fact, he said that he parked near the beach because he was “too drunk to drive.” Id. Mitchell blew into a portable breath test, which registered a .24. The officer arrested Mitchell for impaired driving and began to drive him to the police station. Mitchell’s condition worsened during the drive. After it became clear Mitchell would not be able to perform a breath test, the officer decided to take 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 an alcohol concentration of 0.22.
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 no single opinion commanded a majority. The justices disagreed about how the principles announced in Birchfield applied to blood draws carried out pursuant to implied consent statutes that carried only civil penalties.
What did Birchfield say again? In Birchfield, the United States Supreme Court considered the constitutionality of implied consent testing schemes that imposed criminal penalties for a suspect’s refusal to submit to testing. The Court determined that breath tests were a permissible search incident to arrest. Officers do not need a warrant to carry out such a search and defendants have no right to refuse. Thus, a defendant may be criminally punished for refusing a breath test.
Birchfield determined, however, that blood tests are different. They are far more intrusive than breath tests and thus are not permissible as searches incident to arrest. As for the statutory schemes that imply a defendant’s consent, the court explained that the consequences to which motorists may be deemed to have consented by driving on public roads must be reasonable. And deeming a driver to have consented to a blood test under threat of criminal prosecution is not a reasonable requirement.
Birchfield did not squarely address the issue of whether warrantless blood testing could be justified based on a driver’s legally implied consent to testing under a statutory scheme that imposed only civil penalties. On the one hand, it cautioned that nothing it said should be construed to cast doubt on implied consent laws that imposed civil rather than criminal penalties for refusing to be tested. On the other hand, the court’s analysis of whether chemical testing is a permissible search incident to arrest and its remand for a determination regarding the voluntariness of one defendant’s consent suggest that consent is to be determined based on the totality of all the circumstances rather than by a legal construct that implies a driver’s consent to such testing.
Back to Mitchell. The three opinions from the Wisconsin Supreme Court in Mitchell were founded on the justices’ differing interpretations of Birchfield.
The three justices who wrote the lead opinion stated that “[b]y driving in Wisconsin, Mitchell consented to have samples of his breath, blood or urine taken by a law enforcement officer who had probable cause to believe he was intoxicated, unless he withdrew that consent.” 914 N.W.2d at 162. Mitchell’s consent was voluntary, they reasoned, because it was statutorily provided for in a heavily regulated sphere, because Mitchell drove after having consumed enough alcohol to support probable cause to arrest him for impaired driving, and because Mitchell forfeited the opportunity to withdraw his consent by drinking so much alcohol that he lost consciousness.
Two concurring justices rejected the idea that the State could enact a statute legislating a suspect’s consent to warrantless testing. These justices nevertheless joined the lead opinion’s mandate affirming Mitchell’s conviction. They reasoned that the availability of a less-intrusive breath test was central to Birchfield’s holding: When the less intrusive test is not available, the calculus about whether a blood test is reasonable changes. The concurring justices thus concluded that a warrantless blood draw may be performed when a person is arrested for impaired driving, is unconscious, and there is a risk of losing evidence due to the body’s metabolism of alcohol.
The dissenting justices stated that implied consent was not actual consent and that the lead opinion had attempted to create a statutory per se exception to the Fourth Amendment’s warrant requirement. Birchfield’s holding that a blood test could not be administered as a search incident to arrest was inconsistent, said the dissenters, with the lead opinion’s view that implied consent statutes could permit blood tests as a search incident to the arrest of an unconscious person for impaired driving.
Impact in NC. As I previously mentioned, the North Carolina Supreme Court determined in State v. Romano, 369 N.C. 678 (2017), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding G.S. 20-16.2(b), which authorizes a law enforcement officer who has reasonable grounds to believe that an unconscious person has committed an implied-consent offense to direct the taking of a blood sample from the person. Because the circumstances in Mitchell are on all fours with those in Romano, the United States Supreme Court’s decision in Mitchell likely will either affirm Romano’s reasoning or invite reconsideration of its holding and the law enforcement practices it affected.
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