Supreme Court Rules: Drawing Blood from Unconscious Drivers is Fair Game

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Police no longer require a warrant to test the blood alcohol level of an unconscious driver

This Thursday, Wisconsin scored a big victory when the Supreme Court upheld its law on implied consent. The law says that any person who drives on public roads consents, by virtue of his act to drive, to a blood alcohol test, even if the person is unconscious. Across the country, around 28 states have similar provisions in their implied consent laws.

In 2013, Gerald Mitchell took 40 pills and chased them down with vodka. Then he drove away to the shore of Lake Michigan taking his van. These facts show Mitchell was having a hard time; how hard? Well, that would require rummaging through his conscious and sub-conscious. Never mind, as a concerned neighbor contacted the police fearing for his life. The cops arriving on the shore found Mitchel to be aggressive and not in any state to grant explicit consent police anyway. The took him to the hospital, as keeping him in a holding cell was seemingly not working out, where the had the hospital staff take his blood alcohol level: an alcohol level of .22, far above Wisconsin’s legal limit of .08.

Mitchell was charged with drunken driving, which he contested arguing the the blood test violated his Fourth Amendment protections; protection against unreasonable searches, without a warrant. As police had no warrant, and even if they had, he was incapable of consenting to the blood draw. Wisconsin state courts ruled against Mitchell, and the Supreme Court concurred with the Wisconsin courts.

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In another high profile case, Alex Wubbles, a Utah nurse who was forcibly arrested for not allowing the police officer to draw blood from a crash victim. The incident happened in July 2017 triggering nation’s anger as the police body cam footage surfaced. While the arresting officer was fired, and the case culminated with a $500, 000 settlement for Ms. Wubbles. The recent ruling from Supreme Court makes it illegal for another nurse in the future to take that stand.

The state said the ability to test the blood alcohol of any drivers, even unconscious, was integral to road safety

“Drunk and drugged driving is an enormous public safety problem, and it is pernicious in Wisconsin,” Wisconsin Attorney General Josh Kaul said. “Yet it is everywhere; it takes a terrible national toll. The states must have tools to combat it.”

Wisconsin Attorney General has a point, but given the jurisprudence behind the law in the last decade or so there is much more to think about. Justices Samuel Alito, Clarence Thomas, Stephen Breyer and Brett Kavanaugh joined Chief Justice John Roberts made the majority vote this Thursday.

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The decision is in conflict with previous court rulings in which the court ruled a ‘blood draw’ to be a significant bodily intrusion while there are less intrusive ways of enforcing drunken driving laws against unconscious motorists — getting a warrant, for instance, for everyday DUI cases can be done rather quickly in present day and age.

In 2013, for instance, the high court ruled that police violated the Constitution when they ordered a non-consensual blood draw without a warrant in a routine DUI case. The vote then was 5-4, but two of the justices in that majority, Antonin Scalia and Anthony Kennedy, are no longer part of the bench

United States Supreme Court – Class of 2018


This Fourth Amendment’s protection case produced four opinions from the judges – two concurring and two in dissent. Surprisingly, Justice Neil Gorsuch broke from his conservative peers to write one of the dissent.

Their opinions reflect a deep divide about the protections afforded to the citizens and what constitutes ‘exigent circumstances’ exceptions. Justice Thomas, in his concurring opinion agreed that expediency in such matters is critical as blood alcohol level would dissipate with time. Justice Alito, while agreeing that speed is important in collecting blood-alcohol evidence. But stated that the requirements necessitated of police officers’ time led to to creating exigent circumstances. Therefore, allowing an exception to warrant requirements.

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“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterwards pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”

Despite technology taking over every sphere of policing and law enforcement, the notion that nurse Wubbles and her peers will now be required under force of law to grant cops access to patients without a warrant speaks to the distance our jurisprudence has with available to tech. The job of Court is to examine and update interpretations of existing laws to better safeguard our rights. The interpretation of Fourth Amendment protections we heard this Thursday has left many bewildered and others concerned.

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