A Wisconsin man is challenging a blood draw performed while he was asleep that was used as evidence against him in a drunk-driving accusation.
And now the U.S. Supreme Court has agreed to hear his case, which could have ramifications for how courts interpret the Constitution’s Fourth Amendment, which protects Americans from unreasonable searches and seizures.
When the police found Gerald Mitchell, he was wet, shirtless and covered in sand.
Less than an hour earlier, officers from the City of Sheboygan Police Department had received a call from someone who claimed that Mitchell appeared to have been driving drunk. Mitchell admitted to as much when the police found him, saying that was why he had parked his car and headed to the beach, according to court documents.
The police then drove Mitchell to a nearby hospital for a blood draw. On the ride over, Mitchell fell asleep and would not wake up despite police attempts to stimulate him.
Mitchell remained too incapacitated to answer questions when the police read from a consent form. Despite that, a police officer directed the hospital staff to take his blood without seeking a warrant. When they took his blood, Mitchell was asleep.
“Mitchell did not awaken during the procedure,” the Wisconsin Supreme Court wrote in its opinion upholding the constitutionality of the blood draw.
Mitchell challenged the blood draw but was rebuffed on the grounds that the search was lawful.
Three of the justices on the court found that Mitchell had implicitly consented to the search by driving his vehicle, relying on the implied consent laws on the books in the state. Two other justices found the search lawful in a concurring opinion that nonetheless deemed consent while unconscious a “metaphysical impossibility,” reasoning that consent was not required.
The search took place in Wisconsin but would have been legal in many other parts of the country. In more than half of U.S. states, there are laws on the books that sanction warrantless blood draws from unconscious intoxicated driving suspects, according to Mitchell’s lawyers, who asked the high court to take up his case.
On Friday, the U.S. Supreme Court did just that in an order announcing it would review the Wisconsin court’s decision. The justices are expected to rule on the matter by late June.
The last time the high court issued a ruling on a related matter was in 2016, when it held in Birchfield v. North Dakota that it was lawful for states to impose penalties on drunk-driving suspects who refused to take breath tests for blood alcohol level.
But, in that case seven justices also found that similar laws penalizing drivers who refused blood tests were not lawful, a possible boon for Mitchell.
“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.
But Wisconsin has argued that a search is less intrusive for a suspect who is not conscious, because their cooperation is not required. The state also pointed out that in drunk-driving cases, the breath test option can be made unavailable “due to the driver’s own egregious misconduct of driving after drinking so much that he eventually passes out.”
The court has not yet scheduled a day for oral arguments.