The United States Supreme Court recently heard oral arguments in the case of Mitchell v. Wisconsin. As this blog discussed previously, this the third case in a series of cases dealing with whether the police can take a DUI/OVI suspect’s blood without a search warrant. The questions and statements from the bench during the oral argument may telegraph how each justice views the issue. However, in our experience, it is difficult to predict the outcome of a case based on the oral arguments.
The Trilogy of Cases Involving Warrantless Blood Draws
In Missouri v. McNeely, the Court concluded the dissipation of alcohol in blood does not necessarily create an exigent circumstance, meaning a warrant is generally required to obtain a blood sample from a DUI/OVI suspect. They followed that decision with Birchfield v. North Dakota, concluding a warrantless breath test can be administered as a ‘search incident to arrest’, but a blood test still generally requires a warrant.
That brings us to the third piece of the puzzle, Mitchell v. Wisconsin. In that case, the defendant passed out before the police were able to administer a breath test. Relying on Wisconsin’s Implied Consent statute, the police took the defendant to the hospital and had his blood drawn without a warrant. Mitchell was convicted of the DUI charge; and appealed his conviction on the ground the blood draw was an unconstitutional violation of his 4th Amendment right against unreasonable searches and seizures.
A majority of the Wisconsin Supreme Court ultimately upheld the legality of the blood draw but couldn’t agree as to why it should be allowed. The case was appealed to the United States Supreme Court, and oral arguments were held last week. An audio recording of the oral argument can be heard at Oyez.org.
The Defense’s Oral Argument
Mitchell’s attorney argued that the state should not be able to get around the general warrant requirement found in the 4th Amendment simply because they passed a law saying all drivers consent to a search. He argued that this could lead to the state passing additional laws stating that drivers consent to the police searching their phones during a traffic stop.
Chief Justice Roberts was not persuaded by this line of argument. He disagreed that allowing this type of law to stand would lead to abuse by the states down the road. In fact, none of the other justices appeared to be particularly swayed by this slippery slope argument. Justice Alito seemed to disagree that this was even about consent and seemed to believe that these types of laws just impose an additional condition on driving, which he described as a “very dangerous activity.”
Justice Breyer brought up the fact that, in many cases, an unconscious driver will be taken to the hospital and have blood drawn as part of routine medical care. He questioned why the police would need a warrant when the suspect’s blood was going to be drawn anyway. However, when the attorney representing the State of Wisconsin followed up on this point, Justice Breyer clarified his position, saying that the police may not need a warrant to get the blood sample, but they should have to get one in order to use it as evidence.
The Prosecution’s Oral Argument
The State argued that the court should look at this in one of two ways. First, the suspect had previously consented to this type of search by virtue of the state’s implied consent law. Alternatively, this is simply a condition on obtaining a driver’s license and is therefore a reasonable exercise of the State’s power.
Justice Ginsberg disagreed with both of these ideas, saying that if the state wants to get a blood sample from a DUI/OVI suspect, they need to get a warrant. Several of the other Justices raised concerns that the delay caused by the warrant application process may interfere with medical treatment. Justice Ginsberg countered this by pressing the State’s attorney to explain the process of obtaining a warrant, indicating that it often takes less than 15 minutes.
Justice Kagen echoed Justice Ginseberg’s ideas and questioned whether an unconscious driver actually ever consented to this type of search. She indicated that there was nothing to indicate that Mr. Mitchell actually understood what he was consenting to at the time he received his license. She suggested that having drivers sign a form stating they understood what they were agreeing to when they got their driver’s license would alleviate this confusion.
Finally, the newest member of the court, Justice Kavanaugh, asked why they couldn’t just carve out an entirely new exception to the general warrant requirement found in the 4th Amendment for this type of situation.
What This Means for Ohio
From their comment during oral arguments, it seems likely that Justices Roberts, Alito and Kavanaugh will vote to uphold this type of warrantless search, while Justices Ginsberg, Kagen and Sotomayor will find a warrantless blood test is unconstitutional. Justice Breyer seemed to go back and forth throughout his questioning while Justice Gorsuch and the typically silent Justice Thomas gave little to no indication as to which way they were leaning. This case could very easily come out either way.
The decision in this case could have a profound impact on Ohio DUI/OVI law. Ohio has a statute very similar to the Wisconsin law at issue in the Mitchell case. Ohio’s Implied Consent law states “any person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented” to a chemical test of their blood, breath, or urine. If the court rules in favor of Mitchell, this portion of Ohio’s law will become unconstitutional. If the Court rules in favor of Wisconsin, however, warrantless blood draws of unconscious DUI/OVI suspects will continue.