Preview: Third Episode In Trilogy Addressing Blood Tests And Search Warrants

Just as Hollywood has produced some good movies in trilogies, the United States Supreme Court has produced some good case law in trilogies. The Court addressed the right to confront crime lab analysts with the trinity of Bullcoming, Melendez-Diaz and Williams. On the issue of the need for a warrant to draw blood from a DUI suspect, two-thirds of the triad have been completed: McNeely and Birchfield. The triumvirate is about to be consummated with Mitchell v. Wisconsin.

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The Fourth Amendment protects people from unreasonable searches and seizures. The general rule is, for a search to be reasonable, there must be a search warrant issued by a judicial officer. There are many exceptions to that general rule. The question addressed by this tripod of cases is this: when is the government permitted to seize a DUI suspect’s bodily substances without a search warrant?

 

McNeely and Birchfield
One search warrant exception was analyzed in the first episode of this case law triumvirate: Missouri v. McNeely. McNeely dealt with the exception for searches based on ‘exigent circumstances’: when there is a compelling need for the search and not enough time to obtain a search warrant. The prosecution claimed DUI cases always involve exigent circumstances because the suspect’s blood alcohol concentration decreases with time. The Court concluded the dissipation of alcohol in the bloodstream does not necessarily create exigent circumstances, so a warrant is generally necessary to obtain a DUI suspect’s blood.

Another search warrant exception was analyzed in the second episode of this case law triumvirate: Birchfield v. North Dakota. Birchfield dealt with the exception for searches ‘incident to arrest’. The prosecution argued that blood and breath tests should be permitted without a search warrant. The Court concluded warrantless breath tests can be administered ‘incident to arrest’, but blood tests cannot be administered ‘incident to arrest’: the government must secure a search warrant.

Mitchell v. Wisconsin
The third case, Mitchell v. Wisconsin, will decide whether the ‘implied consent’ of motorists is an exception to the search warrant requirement. The theory of ‘implied consent’ is this: by driving on the roads of the state, people have implicitly consented to breath/blood/urine tests. A person can revoke consent for a blood or urine test. But what if that person is unconscious at the time the blood or urine is drawn?

The Wisconsin Supreme Court held a warrant is not required to take the blood or urine of an unconscious DUI suspect. In its conclusion, the court relied on the implied consent statute of Wisconsin. That statute specifically states a driver who is unconscious has implicitly consented to have samples of his breath/blood/urine taken. The defendant appealed to the United States Supreme Court, and the case was accepted by the Court on January 11, 2019.

This Case Will Affect Ohio DUI / OVI Law
Ohio has an implied consent law very similar to Wisconsin’s. Ohio’s statute (ORC 4511.191) says: “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 the person’s blood, urine, or breath. As an aside: I’m not sure why a dead person is included in the statute, or how the government would get an unconscious person to take a breath test. Nevertheless, as Ohio’s law implies consent for unconscious DUI/OVI suspects, the outcome of the Mitchell case will be directly relevant to Ohio.

I expect the United States Supreme Court to conclude ‘implied consent’ of an unconscious person is not an exception to the requirement for a search warrant. Thus, this trilogy of cases will be exquisite, like The Godfather and Indiana Jones. However, I have been disappointed by the third episode before, like The Hangover and Back To The Future.