Bloomberg Law
April 23, 2019, 6:33 PMUpdated: April 23, 2019, 9:35 PM

Justices Split on Warrantless Blood Draws from Unconscious Drivers (1)

Jordan S. Rubin
Jordan S. Rubin

U.S. Supreme Court justices were divided April 23 in a case asking whether warrantless blood alcohol draws of unconscious drivers authorized by state law are constitutional.

The rare afternoon argument—heard after the morning proceeding in the closely-watched Census case—focused on a Wisconsin state law that imputes consent for blood-alcohol tests to anyone who drives on a public road, thus allowing police to draw blood from an unconscious driver without a warrant.

More than half the states have similar laws.

Gerald Mitchell challenged the warrantless police action in his case, saying his test results from a blood draw showing he was intoxicated should have been tossed out.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan appeared most inclined to agree with Mitchell.

“It’s a fiction, isn’t it?” Ginsburg asked Wisconsin assistant attorney general Hannah S. Jurss. “It’s not consent, no matter how much you call it implied or presumed,” the justice said.

Ginsburg drew laughs when she asked Jurss about a hypothetical driver who “had a card on his windshield that says: If I’m unconscious, I do not consent to a blood draw.”

But it’s less clear if any of the justices besides those three will cast their votes for Mitchell, which would put him short of the five needed to overturn the Wisconsin state ruling against him.

The state top court found last year that, “through drinking to the point of unconsciousness,” Mitchell forfeited his opportunity to withdraw the consent that drivers automatically give under the state law. Consent is an exception to the Fourth Amendment’s warrant requirement.

Responding to a call that Mitchell was driving drunk in 2013, an officer had found him walking near a beach, “wet, shirtless and covered in sand,” off-balance and slurring his speech. Police found his vehicle nearby, which he said he had parked “because he felt he was too drunk to drive,” the state court opinion against him recounted.

Mitchell later passed out, leading police to get his blood drawn at the hospital without a warrant.

Ignorance of Law, Practical Concerns

Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. were most firmly on the state’s side during the argument.

“Ignorance of the law is no excuse,” Roberts pointed out to Mitchell’s lawyer, assistant state public defender Andrew R. Hinkel. “And if the law says if you’re going to operate a motor vehicle on our highways, you—you impliedly consent to this. And so people are supposed to know the law, so they know if they drive, that their—will be deemed to have consented,” Roberts said.

But this situation is “not quite ignorance of the law,” Sotomayor said later in the argument. “This is something substantially different because you’re talking about not ignorance of the law but knowledge that your body can be invaded by the police to secure evidence to prove you drove intoxicated.”

Roberts drew laughs when, right after Sotomayor offered Hinkel a series of points in his favor, the chief justice said, “Well, you’ve come up—you’ve come up with some good arguments there.”

Justices Stephen G. Breyer and Brett M. Kavanaugh, for their part, both raised practical concerns.

The newest justice asked Jurss what such concerns there were with getting a warrant for the blood.

Having to make that determination at the scene of an accident is “potentially taking away time and resources from making sure that person gets medical care,” Jurss argued.

‘Tough Luck’

Kagan raised Fourth Amendment concerns.

“How is it consent?” she asked Jurss. “It wouldn’t seem as though this is consent in the normal way, where it’s like I understand the choice I’m making, I agree to that choice,” the justice said.

Jurss said “the unconscious driver’s lack of having that opportunity is his fault, not the government’s.”

But Kagan pointed out that “the Fourth Amendment often applies against people who violate the law. And we don’t usually say: Tough luck. It’s your fault. You’re a criminal.”

A decision in the case is expected by late June.

The case is Mitchell v. Wisconsin, U.S., 18-6210, argued 4/23/19.

(Adds transcript, more detail from argument throughout. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at