The U.S. Supreme Court case of Mitchell v. Wisconsin, No. 18-6210, was supposed to be about the validity of "implied consent" laws, resolving a lingering question from the 2016 case of Birchfield v. North Dakota. Today, the Court decided the case, but on an "exigent circumstance" theory.
The plurality opinion says that the driver passing out is generally sufficient to create the needed exigency for an exception to the Fourth Amendment warrant requirement. Justice Thomas concurs in the judgment based on his view that "the natural metabolization of alcohol in the blood stream ' "creates an exigency once police have probable cause to believe the driver is drunk," ' regardless of whether the driver is conscious." Under the "narrower grounds" rule of Marks v. United States, the plurality opinion controls.
The plurality opinion is by Justice Alito, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh. This case is somewhere between the Court's 1966 decision in Schmerber v. California (one of Justice Brennan's very few significant opinions favoring the prosecution) and its 2013 holding Missouri v. McNeely that metabolization alone is not a sufficient exigency. So you need something more, but how much more?
Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunk-driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell's medical condition did just the same.
Even so, the plurality leaves just a little bit of daylight for defendants.
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. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.
Justice Thomas thinks all the hair-splitting will be too difficult for officers and courts to apply and would just throw McNeely overboard.
Justice Sotomayor dissents on the exigency issue, joined by Justices Ginsburg and Kagan. Justice Gorsuch dissents from the Court's deciding the case on a theory different from the one on which it took the case up:
While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed. Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.
Even under the plurality's test, the defendant will have an opportunity at a suppression hearing to establish (by preponderance?) that the police acted unreasonably in drawing blood because the officer had reasonable time to obtain a warrant without BAC dissipating (too much?)
The plurality's unconscious-driver exigency test is a totality-of-the-circumstances test which seems to comport with the Fourth Amendment's "reasonableness" requirement.
Thomas' per se test is more predictable and easily administered by cops, prosecutors, defense counsel and courts. But, in some cases, it has the potential to run afoul of the Fourth Amendment's requirement of reasonableness.
Perhaps jurisdictions should enact implied consent laws that expressly state that, as a privilege of driving, you agree to a blood draw if the officer has PC, even if you are unconscious.
Enacting implied consent laws may or may not be enough as SCOTUS kicked the can down the road, IMO. This is why Gorsuch dissented.
The holding was that warrants are not required "[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."
Right. The Birchfield case, linked in the original post, was the main case on implied consent laws. They passed constitutional muster for breath tests but not blood tests to the extent that criminal penalties followed from refusing the test. The unconscious motorist in this case was a variation on the theme.
How about an express consent statute that requires a motorist, as a condition to obtaining a driver's license, to agree in writing that if he is arrested for DUI/DWI and is unconscious, the arresting officer may obtain a blood sample to determine BAC in a medically approved manner without securing a warrant?
Any constitutional objection?
A State could absolutely require express consent as a condition of obtaining a driver's license, but what is your limiting factor as it relates to reasonableness? How many constitutional rights should one give up for the privilege of driving on federal, state or local roads?
I can think of a few statutes that States would pass had the Court not ruled narrowly. For example, we would see express consent statutes permitting the installation of GPS devices on vehicles without warrants.
Once you accept an expressed consent statute in a Fourth Amendment case, that would end any discussion of whether or not a search is reasonable. In other words, you end the balancing test between privacy interests and government interests because of expressed consent.
An express consent statute would eliminate 4th Am. analysis (under an open balancing approach or a warrant-presumption-exception approach) only if it could be said that the consent was, under the totality of the circumstances, knowingly and voluntarily given.
And that determination would, to a great extent, depend on whether driving is truly a privilege or a necessity of one's ability to function in the 21st century.
Like the SCOTUS recognized with respect to cellphone use, it is very likely that, if confronted with the issue, the Court would treat vehicles as a necessity of modern life. And, thus, revisit the long-held belief that driving is a privilege.