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Project Drive Sober: Drawing blood from passed out drivers

Supreme Court makes ruling in Mitchell case
Posted at 11:24 AM, Aug 06, 2019
and last updated 2019-08-06 18:21:46-04

WASHINGTON, D.C. — A ruling by the United State's Supreme Court will allow law enforcement almost always to draw blood without a warrant from an unconscious person suspected of driving drunk.

The court made the 5-4 ruling in June on a case that began in Sheboygan in 2013.

Sheboygan police arrested Gerald Mitchell for a seventh offense OWI. The police report shows that the arresting officer took Mitchell to a hospital to test his blood, but Mitchell passed out on the way.

The officer "felt Mitchell was too unstable to perform a breath test", according to a police report, and he later "went completely limp." The officer read an official form required to take blood, called the "informing the accused form". Mitchell was still passed out and the police report showed he "could not respond, thus could not provide any responses to questions." The blood draw was taken without a warrant and later came back with a result of .22, nearly three times the legal limit.

Mitchell challenged the case through the court system.

"The question here concerns the interplay between the fourth amendment and our implied consent laws," Assistant Attorney General Hannah Jurss said.

Jurss argued the case to the Supreme Court for the state of Wisconsin. She said a driver in the state agrees to blood and breath tests just by getting behind the wheel.

"Our argument was that the implied consent laws create an exception under the fourth amendment to the warrant requirement," Jurss said.

The fourth amendment protects against unreasonable search and seizure. It was a big part of Mitchell's defense team's argument.

"The state advances a bold and novel proposition here, that it can excuse itself from the fourth amendment warrant requirement simply by enacting a statute saying that some of it's - that its citizens have consented to a search," Assistant State Public Defender Andrew Hinkel told the Supreme Court.

Hinkel argued that a conscious choice is the bare minimum for consent.

"The state has perfectly adequate means, other than a warrant-less blood draw, to vindicate its interest in -- in catching and punishing drunk drivers," he said.

Prosecutors argued an unconscious person is a medical emergency, medical staff will want blood for treatment, there is often a car crash involved, and the primary blood evidence is disappearing.

"All of that together led the court to say, almost always, police will have exigent circumstances," Jurss said.

The court's majority ruling centered on those exigent circumstances. It means almost always, police will have some reason to get a blood draw from an unconscious driver without a warrant.

"It's been pretty well established, I think uniformly, that driving on the roads is considered a privilege and not a right, to which certain conditions can -- can attach," Chief Justice John Roberts said.

The ruling in this case upholds Mitchell's 7th OWI and helps set a standard for cases moving forward. If someone is passed out behind the wheel, police can almost always take and test that person's blood.

"I think the court's decision is a recognition of just how important it is that law enforcement be able to have the means to effectively combat drunk driving while also then attending to all of the other needs that are then created by the actions of the intoxicated driver," Jurss said.

NBC26 will air our full report on this story tonight on NBC26 News at 10:00.