Illinois DUI: Unconscious Blood Draw

On June 27 of this year, the United States Supreme Court took another step toward erasing drivers’ constitutional right against warrantless searches and seizures.  In Mitchell v. Wisconsin, 588 U.S. _____(2019), a plurality of the Court issued an opinion which created a whole new category of “exigent circumstances” searches.  Perhaps the most frustrating part of the Court’s ruling in Mitchell v. Wisconsin, 588 U.S. _____(2019), is that it was unnecessary.  In a scathing dissent, Justice Sotomayor, joined by Justices Ginsburn, and Kagan, noted that the decision in Mitchell rested on “the false premise” that it was “necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence.”  For the dissent the question was narrow: “What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious?”  And their answer simple: “If there is time, get a warrant.”  Justice Sotomayor noted that Wisconsin had conceded that it had time to obtain a warrant and that should have been the end of the matter.  She decried the plurality for “needlessly cast[ing] aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin [did] not urge, the state courts did not consider, and that contravenes this Court’s precedent.”

Furthermore, the dissent points out that the holdings in Schmerber and McNeely, “establish that there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case.”  Additionally, from the Court’s recent ruling in Birchfield, “warrantless blood draws cannot be justified as searches incident to arrest.”  Accordingly, based on precedent, Mitchell had already been resolved and the answer was: “unless there is too little time to do so, police officers must get a warrant before ordering a blood draw.”

The plurality of the Court attempted to justify its whittling away of constitutional protections by insisting that it was answering only a very narrow question, to wit: “what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test.”  The Court held “[i]n such cases…the exigent circumstances rule almost always permits a blood test without a warrant.”  The Court went on to say that “when a driver is unconscious, the general rule is that a warrant is not needed.”  This ruling is clearly a departure from its recent rulings in McNeely and Birchfield.

Essentially, the Fourth Amendment requires that officers must have a warrant based on probable cause before they can effectuate searches or seizures.  The United States Supreme Court over the years has developed exceptions to this general rule that warrants are required.  The exception at issue here is one called “exigent circumstances” which basically means that there is something emergent about the situation an officer finds him/herself in that necessitates an immediate search or seizure without obtaining a warrant.  The exigent circumstances exception allows warrantless searches to prevent the imminent destruction of evidence.  In McNeely, the Court said that the mere fact that BAC evidence dissipates with the passage of time is insufficient by itself to constitute such an exigent circumstance.  In Mitchell, despite its insistence that it did not erase its previously established precedent in McNeely, the Court ultimately determined that these types of blood draws, where blood is taken without the consent of an unconscious driver, are permitted without a warrant as an exception to the Fourth Amendment’s usual protections against warrantless searches and seizures.

At the core of the dissent is the fact that this was not the first time the U.S. Supreme Court had considered the issue of a warrantless BAC tests under the ‘exigent circumstance’ exception to the Fourth Amendment’s warrant requirement.  In 2013 in a case called Missouri v. McNeely, 569 U.S. 141 (2013) the Court considered whether the “exigent circumstances” exception applies to BAC testing given the always dissipating nature of evidence which is due to the metabolic process.  In McNeely, the Court held that the fleeting quality of the BAC alone is not enough to justify an exigent circumstances exception.   However, in Schmerber v. California, 384 U.S. 757 (1966), the exigent circumstances exception did apply because that case involved a car accident and the Court determined that the officers had many pressing needs when a motorist is involved in a car accident and the further delay in obtaining BAC evidence that would caused by the warrant application process would have threatened the destruction of that evidence.  The plurality acknowledged these decisions and then likened Mitchell to Schmerber.  The Court reasoned that McNeely was about the minimum degree of urgency common to all drunk-driving cases while a car accident (as in Schmerber) and the medical condition in Mitchell heightened the urgency.

The plurality insisted that it was not making a determination as to whether exigent circumstances existed in this particular case, saying “[w]e do not hold that the State established that the facts of this particular case involve exigent circumstances under McNeely.”  Rather, the majority wanted to carve out a rule for an entire category of cases “in which a motorist believed to have driven under the influence of alcohol is unconscious and thus cannot be given a breath test.”  The Court noted that in Schmerber, it decided that exigency exists when “(1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.”  The Court reasoned that both conditions were met when a suspect is unconscious and that this rule of exigency applied to blood tests as well as breath tests.

Ultimately, the Court held that “[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 take 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.”  The Court remanded Mitchell to give him an opportunity to show that his blood would not have been draw if the police had not asked for it and that the police could “not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”

Of particular concern, is the fact that this Mitchell ruling put the onus on the driver to show what the officer could “have reasonably judged that a warrant application would interfere with other pressing needs or duties.”  Prior to Mitchell the burden was on law enforcement to show that the circumstances were exigent.  Given that the Fourth Amendment gives the right to be free from searches and seizures without a warrant, it is contrary to reason that the Court would remove the burden from law enforcement to justify its actions and instead place that burden on the driver to prove what is reasonable for law enforcement to do.  Moreover, the Court has created a catastrophe of litigation and confusion – what satisfies the “interfere” requirement? what are other pressing needs or duties? who is this reasonable officer?  Plus, in order for a driver to prove that their case is an exception to the exception of exigency, it appears from the plurality opinion that expert, or at least medical, testimony will be required which increases the cost of DUI defense for the driver and perhaps precludes some drivers from pursuing a suppression of evidence because of the cost of litigation; someone will have to bear the burden of the medical testimony – either the driver or the county if the driver petitions and is awarded funds for such an expert.

The Court has opened Pandora’s box with its decision in Mitchell.  Hopefully, when it sees the storm of litigation it has created, it will be convinced to reverse itself on this issue or at least drastically curtail its holding in Mitchell and renew drivers’ rights to be free from warrantless blood draws.  Perhaps the answer lies in technology and our improved ability to communicate and for officers to obtain warrants or perhaps it lies in the basic principle that this “exigency” will no doubt be abused and drivers should not have the burden of proving an officer’s good faith or reasonableness to maintain their Constitutional Rights.  Until then, expect law enforcement officers to take full advantage of this new “exigent circumstances” rule and request warrantless blood draws in all situations where they think they can.