When police pull over someone for a DUI, they will ask the driver to take a test for alcohol. What happens if the police find the driver passed out?
In Mitchell v. Wisconsin, The Supreme Court ruled that police generally do not need a warrant for a blood draw on an unconscious DUI suspect. This is because situations with unconscious DUI suspects generally require increased responsibilities for police and prevent them from immediately getting warrants. There may some exceptions to this rule, however, such as where the situation does not prevent police from getting a warrant immediately.
What Happened in the Case
Mitchell was arrested for operating while intoxicated. A preliminary breath test (PBT) revealed a blood alcohol content of .24. While en route to the police station to take a more accurate breath test, he passed out, making it impossible to perform the breath test. Police brought him directly the hospital for a blood test. A police officer read Mitchell his implied consent rights.
Implied consent is law in Wisconsin and every other state. Implied consent essentially means that drivers arrested for driving under the influence automatically consent to an alcohol or drug test. The driver will be read their rights. The rights basically say a driver consents, but if they don’t consent, then police will get a warrant (and they always will be able to get a warrant). Each state will have driver’s license penalties for refusing consent to a test. In Michigan, that penalty is a one-year driver’s license suspension, although you can get a restricted license.
Back to the story. When the police officer read Mitchell his implied consent rights he got no response. The officer then went forward with the blood test without a warrant.
What Happened Legally Speaking
Mitchell was charged with two counts of operating while intoxicated crimes. He moved to suppress the blood results on the grounds that the blood test violated his Fourth Amendment rights in that it was an unreasonable search and seizure. He lost his motion to suppress, then lost the trial, then appealed all the way to the U.S. Supreme Court.
The Court’s Ruling
At a starting point, a blood test for blood alcohol content is a search. To conduct a search, police either need a warrant, consent, or exigent circumstances. An exigent circumstance is a compelling need to act without a warrant. One type of exigent circumstance is where evidence of a crime might disappear.
The Court first looked back to its decision in Missouri v. McNeely. In McNeely, the Court ruled that police must get a warrant to perform a blood test of DUI suspects. Prosecutors had tried to get a ruling from the Court saying that alcohol leaving the body at a quick rate is an exigent circumstance justifying a warrantless search.
The exigent circumstance would have been the disappearance of evidence. That is, the evidence that someone had alcohol in their system might disappear if police are forced to get a warrant. Alcohol leaves the body at a rate of about one drink per hour. Waiting too long to test a driver’s blood for alcohol might mean that no alcohol would remain in the body by the time a test is done. In other words, if police have to wait too long to get a blood test, then the person would get away with the accused crime.
The Court in McNeely believed that just because alcohol disappears from the body at a quick rate is not enough to justify a warrantless search. Essentially, the Court said that police are able to get warrants very fast in this modern world, thus eliminating the urgent need to take blood without a warrant. Technology facilitates police ability to get warrants from magistrates and judges.
Then in a later case, the Court ruled that the disappearance of alcohol from the body did justify a warrantless blood test for a drunk driver who got into a car accident. This is because the car accident created further duties for the police which delayed the ability to get the warrant. There was an increased chance that the alcohol would be gone from the body in this scenario because the police are busy with tending to the car accident.
In other words, the urgency to get a warrant in a standard DUI case isn’t that high. Police are able to get a warrant quickly enough and in the standard DUI case there is no other delay. There is a higher urgency in a case where there is more going on than a plain old pull-over and arrest. This is because police are not able to get the warrant as quickly because they have other things to do (such as tend to a car crash scene).
The Court in this case is focused on a category of DUI drivers – unconscious drivers. At a starting point, an unconscious driver cannot take a breathalyzer or datamaster breath test at the police station. Because they are unconscious, they cannot blow into the machine. An unconscious DUI suspect must have a blood test for police to get the BAC.
In the Court’s view, unconscious drivers created more work for officers because the driver must be taken to the hospital for medical attention or at the least time spent on medical attention at the scene of arrest. Also, an unconscious driver might also mean an unsafe or dangerous situation that officers need to attend. The increased responsibilities of officers with unconscious drivers means less time to get a warrant. Less time to get a warrant means increased possibility that the evidence of blood alcohol content will be gone by the time a blood test can be performed.
Exception to the Rule
The Court did make one exception for these unconscious driver cases. The Court did not “rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.” This means there may be times where although s suspect is unconscious, police are not prevented from quickly getting a warrant due to other responsibilities. This will be an area of litigation in these cases.
Sam Bernstein is a DUI Lawyer in Ann Arbor.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
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ArborYpsi Law Focuses on Drinking and Driving Cases
Many people charged with operating while intoxicated don’t take the charge seriously. They walk into court and plead guilty to the first opportunity. Which usually means they plead as charged or at the best to operating while visibly impaired, which in Michigan is essentially the same thing as operating while intoxicated. Why don’t people take it seriously? Well, because it doesn’t seem like a big deal, or just to “get it over with,” or because they think there’s nothing that can be done with the case. Or because the person’s lawyer doesn’t treat the case seriously.
These are serious cases. A first-offense OWI usually doesn’t result in jail time. But it is a criminal misdemeanor which will go on your record for life. An OWI conviction can never be removed from your permanent record. It can always be looked up and can follow you for life.
We take OWI charges seriously. We will thoroughly review the case for all potential legal challenges because you deserve nothing less. OWI cases can be challenged. We will do everything in our power to challenge your case to keep your record clean.