As discussed previously in this space, we have been eagerly awaiting the Supreme Court’s decision in Mitchell v. Wisconsin. The Court set out to determine whether Wisconsin’s Implied Consent statute requires police to obtain a search warrant before getting a blood sample from an unconscious DUI suspect. The state of Wisconsin argued that Mitchell, through the state’s Implied Consent statute, had already consented to the blood draw, thereby removing the requirement for a warrant. Alternatively, they argued this should simply be viewed as an exercise of the State’s power to imposes conditions on a person’s privilege to operate a vehicle on Wisconsin’s roads.
In a 5-4 plurality decision, the Supreme Court disregarded both of these arguments and held the warrantless blood draw from an unconscious DUI suspect typically falls within the ‘exigent circumstances’ exception to the Fourth Amendment’s warrant requirement, so a search warrant is typically not required.
The Court’s Plurality Decision
Justice Alito wrote the opinion for himself, Chief Justice Roberts, Justice Breyer and Justice Kavanaugh. The opinion first acknowledges that the Court held in the past the dissipation of alcohol in blood does not, in and of itself, trigger the exigent circumstances exception, so a search warrant is typically necessary for a blood test. However, the opinion then states the presence of other factors could put additional time constraints on the police. Based on this logic, Justice Alito created a new two-prong test to determine if a blood draw from a DUI suspect would fall within the exigency exception:
1) The alcohol in the suspect’s blood is dissipating; and
2) Some other factors create pressing health, safety, or law enforcement needs that take priority over a search warrant application.
The court also determined that, if a defendant shows their blood would not have been drawn but for the police collecting BAC evidence, the exigent circumstances exception would no longer apply, so a search warrant would be required. Because Mitchell was never able to make such a showing, the Court remanded the case back to Wisconsin state court to apply this new two-part test.
Justice Thomas’ Concurrence
Justice Thomas joined the Plurality but wrote his own opinion concurring with Justice Alito’s holding. He concluded that the very nature of blood alcohol dissipation creates exigent circumstances, so a search warrant should never be required to draw blood from a DUI suspect.
Justice Sotomayor wrote a dissenting opinion joined by Justice Ginsburg and Justice Kagen. The dissenting opinion has two major points of contention with the plurality’s decision. First, the dissent argues that, if there is time to get a warrant (in this case, Wisconsin conceded there was), law enforcement should be required to get one. Second, the dissent observes that Wisconsin never argued that this type of blood draw should be viewed as an exigent circumstance. Instead, Wisconsin argued the blood draw was permissible under the state’s Implied Consent statute. Justice Sotomayor opined that the Court should have decided the case based upon the arguments presented by the parties.
Finally, Justice Gorsuch wrote his own short dissenting opinion. In his dissent, Justice Gorsuch agrees with Justice Sotomayor’s opinion that this case should not have been decided using exigent circumstances since the parties didn’t raise that issue.
What This Means for Ohio
This decision could have a major impact on Ohio DUI/OVI law. The new rule created in this case means the burden will now fall on an OVI/DUI defendant who had their blood drawn while unconscious to prove the police should have gotten a warrant. This underscores the importance of seeking an Ohio DUI/OVI lawyer who is well-versed in the latest developments in OVI/DUI law and who is able to structure defenses to meet the changing legal landscape.