Does my driver’s license serve as consent for police to take my blood? Well maybe…..

Lawyers for the State of Wisconsin faced stiff questions from U.S. Supreme Court justices on Tuesday as they defended the State’s failure to get a warrant before drawing blood from an unconscious driver.

When police arrested Gerald Mitchell on the beach in Sheboygan, they said he was feet away from his van, stumbling and acting belligerently. A preliminary breathalyzer test showed he was over the legal limit for driving, and police promptly brought him to the station. His condition deteriorated once there, however, and police escorted him to a hospital. He passed out en route, and was still unconscious when police read him a statement in the hospital informing him of an impending blood draw to test his alcohol levels.

Later charged with driving while intoxicated, Mitchell fought unsuccessfully to suppress those results. His attorneys claim that his rights to reasonable search and seizure were grossly violated.

“Consent is a question of fact,” said Mitchell’s attorney, addressing the justices. He said the State improperly relied on an unconstitutional theory to test Mitchell when he was unable to provide consent. “They believe: get a warrant if you can,” he said. “And if you can’t, you don’t have to.” He argued that, in order to substantiate a warrantless search and seizure of something as personal as one’s blood, there must be some indication of an impediment to obtaining that warrant within a reasonable amount of time.

For Chief Justice John Roberts, however, the case may turn not on impediments but of “implied consent and privilege.” “It’s a privilege to drive on the roads and if you do it, you consent [to blood-level alcohol testing],” Roberts said. “Exigency is an aspect to obtaining a warrant in this case because, for example, alcohol dissipates quickly in the blood.”

But Justice Sonia Sotomayor appeared unswayed about the essence of time in such cases. Invading someone’s body is a different level of intrusion,” she said. In principle, if one is on the road, they know the law well enough to know that if drunk, they are driving intoxicated. “That is reasonable … but how reasonable is it to expect that people know [a possible] invasion of their blood is part of that plan?” she asked.

Justice Ruth Bader Ginsburg likewise drilled into the State’s attorney for arguing that there is “presumed consent” the moment a driver gets behind the wheel. “Presumed consent? That’s fiction. It’s not consent,” Ginsburg said, noting that the idea of “presumed consent” is rooted more in legal theory than reality. You either consent or you do not, the justice explained. Ginsburg also shredded Wisconsin’s theory that waiting for Mitchell to wake up chilled its ability to investigate. “How difficult is it to get a warrant in this case,” she asked. “The magistrates weren’t available by phone or email? Often it only takes 15 minutes.”

Justice Neil Gorsuch signaled that the issue may be one the states must decide. “Consent or no consent, if you fail to comply [with the law], there are consequences,” Gorsuch said.

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