State v. Mitchell

• Decision Date: 15 June 2022
• Docket Number: 2019AP1942-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Gerald P. Mitchell, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Gerald P. Mitchell, Defendant-Appellant.

No. 2019AP1942-CR

Court of Appeals of Wisconsin, District II

June 15, 2022

APPEAL from a judgment and an order of the circuit court for Sheboygan County No. 2013CF365: TERENCE T. BOURKE and REBECCA L. PERSICK, Judges. Affirmed.

Before Gundrum, P.J., Neubauer and Kornblum, JJ.

GUNDRUM, P.J.

¶1 This operating-a-motor-vehicle-while-intoxicated (OWI) case has a significant history as it has already been to the United States Supreme Court and back. In Mitchell v Wisconsin, 139 S.Ct. 2525, 2539 (2019), the Court held that "[w]hen police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test," as was the case with Mitchell, they may lawfully order a blood test without a warrant. Such testing will not be determined to have "offend[ed] the Fourth Amendment," the Court continued, unless the defendant shows both (1) "that his blood would not have been drawn if police had not been seeking BAC [blood alcohol concentration] information" and (2) "that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties." Id. The Court remanded the case to afford Mitchell the opportunity to try to make these two showings.

¶2 Following an evidentiary hearing, the circuit court denied Mitchell's suppression motion on the basis that he failed to make these showings.^[1] Mitchell appeals this ruling, but we agree with the circuit court and affirm.

Background

¶3 Since our decision today relies heavily upon Mitchell, we will also borrow heavily from it for the background.

¶4 When an officer located motorist Mitchell, he was "[s]tumbling and slurring his words" and "could hardly stand without the support of two officers." Id. at 2532. With field sobriety tests deemed "hopeless, if not dangerous," the officer arrested Mitchell for OWI and drove him to a police station for a breath test. Id. At the station, Mitchell was "too lethargic even for a breath test," so the officer took him to a hospital for a blood draw. Id. Before reaching the hospital, Mitchell lost consciousness and "had to be wheeled in." Id. Despite Mitchell's lack of consciousness, the officer, pursuant to Wisconsin's Implied Consent Law, "read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing." Id. With no response from Mitchell, the officer asked hospital staff to draw his blood. "Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC ... was 0.222%." Id.

¶5 Charged with two related drunk-driving violations, Mitchell moved to suppress the results of the blood test, contending "it violated his Fourth Amendment right against 'unreasonable searches' because it was conducted without a warrant." Id. The circuit court denied his motion, and he was found guilty of both charges following a jury trial. Id. Mitchell appealed, and the Wisconsin Supreme Court accepted our certification and affirmed the convictions. Id.

¶6 On further appeal, the United States Supreme Court ultimately considered "what officers may do when a driver's unconsciousness (or stupor) eliminates any reasonable opportunity" for a "reliable, evidence-grade breath test[]" to be performed upon the driver. Id. at 2534 (citation omitted). Addressing this issue, the Court declared that, in the OWI context, "exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so . [w]ith such suspects . a warrantless blood draw is lawful." Id. at 2537 (emphasis added). The Mitchell Court further stated that

unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital not just for the blood test itself but for urgent medical care. Police can reasonably anticipate that such a driver might require monitoring, positioning, and support on the way to the hospital; that his blood may be drawn anyway, for diagnostic purposes, immediately on arrival; and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value.

Id. at 2537-38 (first emphasis in original; citation omitted). Referring to Schmerber v. California, 384 U.S. 757, 770-71 (1966)-in which the Court held that the exigent circumstances doctrine applied to a warrantless blood draw on an intoxicated driver involved in a car accident because of pressing duties related to that accident taking priority over applying for a warrant-the Mitchell Court continued, "Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception." Mitchell, 139 S.Ct. at 2538 (emphasis added).^[2]

¶7 Ultimately, the Mitchell Court adopted a "rule" for "an entire category of cases"-those in which there is probable cause to believe a driver has committed an OWI offense and the driver is either unconscious, id. at 2534 n.2, or in such a stupor that he/she cannot properly perform a breath test, id. at 2539.

When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

Id. Because the Court could not "rule out the possibility" that Mitchell's situation could be the "unusual case," it remanded the matter to afford Mitchell the opportunity to try to show "that his blood would not have been drawn if police had not been seeking BAC information" and "that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties." Id. at 2539.

¶8 Upon remand, the circuit court held an evidentiary hearing at which Mitchell attempted to show these two factors and thus show that the otherwise lawful warrantless blood draw of the unconscious Mitchell was unlawful. Following an evidentiary hearing at which the arresting officer provided testimony relevant to this issue, the circuit court determined that Mitchell failed to show that either factor existed, and it again denied his suppression motion. Mitchell appeals from that ruling.

Discussion

¶9 "The review of a circuit court's order granting or denying a suppression motion presents a question of constitutional fact. We will uphold the court's factual findings unless they are clearly erroneous, but we independently apply constitutional principles to those facts." State v. Ionescu, 2019 WI.App. 68 ¶8, 389 Wis.2d 586, 937 N.W.2d 90 (citation omitted).

¶10 The key holding of Mitchell relevant to this appeal is that

[w]hen police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment.

Id. at 2539 (emphasis added). The only circumstance in which police may not order the test without offending the Fourth Amendment-the "almost always" part of the holding-is where the motorist shows both that (1) his/her blood "would not have been drawn if police had not been seeking BAC information," and (2) "police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties." Id. (emphasis added); see State v. Richards, 2020 WI.App. 48, ¶29 n.4, 393 Wis.2d 772, 948 N.W.2d 359 ("Mitchell's holding that a defendant must 'show' [these two factors] places the burden on [the defendant] to establish those factors."). Because Mitchell failed to show that the first factor existed in this case, ^[3] the circuit court correctly determined that the warrantless blood draw was lawful.

¶11 Mitchell suggests we should look to the arresting officer's subjective intent in taking him to the hospital for a blood draw. He points to testimony of the officer that suggests that the reason the officer left the police station to take him to the hospital was to secure BAC evidence, not to ensure he received medical attention. Relatedly, citing Mitchell, 139 S.Ct. at 2537-38, he asserts: "As the [ Mitchell ] Court put it ... if police can 'reasonably anticipate that [a driver's] blood may be drawn anyway, for diagnostic purposes, immediately on arrival' they need not seek a warrant." (Last alteration in original; emphasis added.) Playing off of this, Mitchell then writes that "at the time the officer [in this case] elected to proceed with a warrantless blood draw, he could not 'reasonably anticipate' that Mitchell's blood would be 'drawn anyway' if [the...