Mitchell v. Wisconsin

Decision Date27 June 2019
Docket NumberNo. 18-6210,18-6210
Citation204 L.Ed.2d 1040,139 S.Ct. 2525
Parties Gerald P. MITCHELL, Petitioner v. WISCONSIN
CourtU.S. Supreme Court

Andrew R. Hinkel, Madison, WI, for Petitioner.

Hannah S. Jurss, Assistant Attorneys General, Madison, WI, for Respondent.

Ginger D. Anders, Celia R. Choy, Munger, Tolles & Olson LLP, Washington, DC, Dane P. Shikman, Munger, Tolles & Olson LLP, San Francisco, CA, Andrew R. Hinkel, Assistant State Public, Defender, Office of the State Public Defender, Madison, WI, for Petitioner.

Joshua L. Kaul, Attorney General of Wisconsin, Anthony D. Russomanno, Hannah S. Jurss, Michael C. Sanders, Assistant Attorneys General, Wisconsin Department of Justice, Madison, WI, for Respondent.

Justice ALITO announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH join.

In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases. First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment's general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.

Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers' many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.


In Birchfield v. North Dakota , 579 U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), we recounted the country's efforts over the years to address the terrible problem of drunk driving. Today, "all States have laws that prohibit motorists from driving with a [BAC] that exceeds a specified level." Id. , at ––––, 136 S.Ct., at 2166. And to help enforce BAC limits, every State has passed what are popularly called implied-consent laws. Ibid. As "a condition of the privilege of" using the public roads, these laws require that drivers submit to BAC testing "when there is sufficient reason to believe they are violating the State's drunk-driving laws." Id. , at ––––, ––––, 136 S.Ct., at 2166, 2169).

Wisconsin's implied-consent law is much like those of the other 49 States and the District of Columbia. It deems drivers to have consented to breath or blood tests if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses.1 See Wis. Stat. §§ 343.305(2), (3). Officers seeking to conduct a BAC test must read aloud a statement declaring their intent to administer the test and advising drivers of their options and the implications of their choice. § 343.305(4). If a driver's BAC level proves too high, his license will be suspended; but if he refuses testing, his license will be revoked and his refusal may be used against him in court. See ibid . No test will be administered if a driver refuses—or, as the State would put it, "withdraws" his statutorily presumed consent. But "[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have" withdrawn it. § 343.305(3)(b). See also §§ 343.305(3)(ar) 1–2. More than half the States have provisions like this one regarding unconscious drivers.


The sequence of events that gave rise to this case began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that petitioner Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell wandering near a lake. Stumbling and slurring his words, Mitchell could hardly stand without the support of two officers. Jaeger judged a field sobriety test hopeless, if not dangerous, and gave Mitchell a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Jaeger arrested Mitchell for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment.

On the way, Mitchell's condition continued to deteriorate—so much so that by the time the squad car had reached the station, he was too lethargic even for a breath test. Jaeger therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness on the ride over and had to be wheeled in. Even so, Jaeger read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%.

Mitchell was charged with violating two related drunk-driving provisions. See §§ 346.63(1)(a), (b). He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against "unreasonable searches" because it was conducted without a warrant. Wisconsin chose to rest its response on the notion that its implied-consent law (together with Mitchell's free choice to drive on its highways) rendered the blood test a consensual one, thus curing any Fourth Amendment problem. In the end, the trial court denied Mitchell's motion to suppress, and a jury found him guilty of the charged offenses. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State's implied-consent law was sufficient to show that Mitchell's test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. See 2018 WI 84, ¶15, 383 Wis.2d 192, 202–203, 914 N.W.2d 151, 155–156 (2018). The Wisconsin Supreme Court affirmed Mitchell's convictions, and we granted certiorari, 586 U.S. ––––, 139 S.Ct. 915, 202 L.Ed.2d 642 (2019), to decide "[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement," Pet. for Cert. ii.


In considering Wisconsin's implied-consent law, we do not write on a blank slate. "Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply." Birchfield , 579 U.S., at ––––, 136 S.Ct., at 2185. But our decisions have not rested on the idea that these laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize. Instead, we have based our decisions on the precedent regarding the specific constitutional claims in each case, while keeping in mind the wider regulatory scheme developed over the years to combat drunk driving. That scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws.

Over the last 50 years, we have approved many of the defining elements of this scheme. We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against self-incrimination. See Schmerber v. California , 384 U.S. 757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nor does using their refusal against them in court. See South Dakota v. Neville , 459 U.S. 553, 563, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). And punishing that refusal with automatic license revocation does not violate drivers' due process rights if they have been arrested upon probable cause, Mackey v. Montrym , 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) ; on the contrary, this kind of summary penalty is "unquestionably legitimate." Neville , supra , at 560, 103 S.Ct. 916.

These cases generally concerned the Fifth and Fourteenth Amendments, but motorists charged with drunk driving have also invoked the Fourth Amendment's ban on "unreasonable searches" since BAC tests are "searches." See Birchfield , 579 U.S., at ––––, 136 S.Ct., at 2173. Though our precedent normally requires a warrant for a lawful search, there are well-defined exceptions to this rule. In Birchfield , we applied precedent on the "search-incident-to-arrest" exception to BAC testing of conscious drunk-driving suspects. We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ––––, 136 S.Ct., at 2184–85.

We have also reviewed BAC tests under the "exigent circumstances" exception—which, as noted, allows warrantless searches "to prevent the imminent destruction of evidence." Missouri v. McNeely , 569 U.S. 141, 149, 133 S.Ct. 1552, 185 L.Ed.2d...

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