Mitchell v. Wisconsin exempts BAC tests as exigent circumstances

The United States Supreme Court recently built upon their line of blood alcohol testing cases with their decision in Mitchell vs. Wisconsin. In recent years, the Supreme Court justices have issued decisions relating to the administration of a warrantless blood alcohol concentration (BAC) test to a motorist appearing to be intoxicated, and whether these tests rise to the level of intrusion or may be carried out by law enforcement as exemptions for warrantless search.

2013 ruling of Missouri vs. McNeely

The Supreme Court previously analyzed whether a BAC test would fall under the exigent circumstances exception to the warrant requirement in its 2013 decision of Missouri vs. McNeely.

Exigent circumstances allow law enforcement to conduct a warrantless search typically when there is a compelling need for an official action and there is no time to secure a warrant.

Examples of a compelling need are:

1. Preventing physical harm
2. Destruction of relevant evidence
3. Escape of a suspect

In McNeely, the Court focused on the fact that blood-alcohol evidence dissipates due to the nature of the metabolic process in the body. However, the fleeting evidence of blood-alcohol content did not move the Court enough to justify a warrantless BAC test under the exigent circumstances exception on its own. The case focused primarily on the “minimum degree of urgency common to all drunk-driving cases,” thus the exigency was not high enough for a warrantless search.

The Court did indicate that law enforcement may conduct a BAC test if the facts were such as to fall within the exigent-circumstances exception, thereby leaving the door for a warrantless test should the right factual scenario be presented.

2016 ruling of Birchfield vs. North Dakota

In its prior decision of Birchfield vs. North Dakota in 2016, the Supreme Court addressed the issue of whether a warrantless BAC test of a conscious drunk driver would fall under the search incident to arrest exception. The Court found that the arrest of a drunk motorist did not justify a warrantless BAC test, but law enforcement could administer a warrantless breath test due to their less intrusive nature.

2019 ruling of Mitchell vs. Wisconsin

In its more recent decision of Mitchell, the Court found itself in a position to build upon its McNeely decision presented with a factual scenario higher on the exigency spectrum as to allow for a warrantless BAC test.

The facts in Mitchell were as follows:

• Officer Alexander Jaeger received information that the petitioner Mitchell had gotten into a vehicle and drove off while appearing to be very intoxicated.
• The officer found Mitchell wandering and stumbling about around a lake. Mitchell was unable to stand up straight without the assistance of the police and had slurred speech.
• The officer conducted a field sobriety test that registered a BAC level of 0.24%, which is three times the legal limit for operating a vehicle in the state of Wisconsin.
• The officer arrested Mitchell and drove him to the police station for a more reliable blood test. While on route, the officer noticed Mitchell’s condition worsen, and he became lethargic. The officer then drove Mitchell to a hospital for a blood test. By the time Mitchell got to the hospital, he was unconscious.
• The officer read a statement that allows drivers to refuse a BAC test. Because Mitchell was unconscious, he did not respond. Hearing no answer, the officer had the hospital draw and run a BAC test that found Mitchell’s BAC to be 0.222%.
• Mitchell was charged with two drunk-driving statutes in Wisconsin.
• He moved to suppress the results of the BAC test conducted at the hospital on the grounds that it violated his Fourth Amendment rights against an unreasonable search. The trial court denied the motion to suppress, and a jury found Mitchell guilty of drunk driving.
• This ruling was appealed to the Wisconsin Supreme Court, where the Court affirmed Mitchell’s conviction.
• The ruling of the Wisconsin Supreme Court was appealed to the US Supreme Court.

On appeal, the plurality of the Supreme Court Justices found that there is a greater need to conduct a blood test of an unconscious driver because, in this situation, Officer Jaeger could not perform a reliable breath test and a blood draw became necessary to promote the public interest of highway safety.

The Court noted that BAC limits have made an impact in promoting highway safety and enforcing BAC limits requires a test sufficient to be reliable and admissible in court. The Court reasoned because the breath test was unavailable in this instance, a blood draw became an exigency to preserve the BAC evidence. The Court stated, “[i]ndeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish.”

Thus, having found a compelling need, the Court analyzed whether there was time to secure a warrant, the second requirement under the exigent exception. The Court has previously held that “there is “no time to secure a warrant before a blood test of a drunk-driving suspect . . .  [where] the delay necessary to obtain a warrant . . . threated the destruction of evidence. So even if the constant dissipation of BAC evidence alone does not create an exigency . . . it does so when combined with other pressing needs [as in the present case].”

Having decided there was no time to secure a warrant, the Court found that a BAC test of an unconscious person does not require a warrant; therefore, Mitchell’s BAC test was lawful.

Justice Alito delivered the opinion of the Court with Chief Justice Roberts and Justices Breyer and Kavanaugh joining, while Justice Thomas rounded out the majority by filing a concurrence.

Justice Thomas concurred with the judgment only – indicating he would prefer a per se rule allowing law enforcement to administer a warrantless BAC test with sufficient probable cause. Justices Sotomayor and Gorsuch filed dissenting opinions, with Justices Ginsburg and Kagan joining Sotomayor’s dissent.

Summary of the Mitchell test

With their decision in Mitchell, the High Court has given us a test to use in the future to determine whether a BAC test of an unconscious person requires a warrant or not:

1. First, there must be an exigency such that BAC evidence is dissipating
2. Second, there needs to be other facts affecting health, safety, or law enforcement needs that take priority over a warrant

If both factors are met, then a BAC test of an unconscious driver will be constitutional going forward.