By Ed Treleven
The Wisconsin State Journal
WASHINGTON — On a day of politically charged decisions that made headlines, the U.S. Supreme Court also narrowly ruled in a Wisconsin case that most of the time, “exigent circumstances” allow police to draw blood evidence without a warrant from a suspected drunken or drugged driver when that person is unconscious.
The 5-4 decision in the Sheboygan County case of Gerald Mitchell will likely clear a logjam of similar cases that have been on hold in Wisconsin, including a drunken driving homicide case in Dane County that was charged in 2015. The state Supreme Court has been waiting to decide whether to accept another appeal, involving a man convicted of drunken driving in Sauk County, until after the U.S. Supreme Court’s decision in the Mitchell case.
In the Mitchell case, Justice Samuel Alito wrote for the plurality that when police have probable cause to believe a person has been driving drunk, but is unconscious either because of a crash or the effects of alcohol and must be taken to a hospital for treatment, and before police have an opportunity to administer a breath test, “they may almost always order a warrantless blood test to measure the driver’s (blood alcohol concentration) without offending the Fourth Amendment,” which guards against unreasonable searches.
Alito, whose opinion was joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh, wrote that while dealing with crashes, officers have a lot to do and may not have time to draw up a warrant before alcohol dissipates in the blood of the driver, creating exigent circumstances that mitigate the need for a warrant.
Requiring a warrant under those circumstances, Alito wrote, “would force (police) to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits.”
Justice Sonia Sotomayor, in a dissent joined by Justices Ruth Bader Ginsburg and Elena Kagen, called that justification a “false premise.”
“The plurality may believe it is helping to ameliorate the scourge of drunk driving,” Sotomayor wrote, “but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment.”
Justice Neil Gorsuch dissented separately.
Justice Clarence Thomas agreed with Alito’s conclusion, but wrote separately to say it was for different reasons.
Alito’s finding allowed for the possibility that police might have drawn blood without a warrant for some other impermissible reason and sent the case back to the trial court to give Mitchell a chance to prove that, if he desires.
The ruling generally upheld a state Supreme Court ruling in Mitchell’s case issued in July 2018, in which the court wrote that Mitchell had agreed to a blood draw by driving on public roads and drinking to excess.
“This law helps protect communities from impaired drivers,” state Attorney General Josh Kaul said in a statement Thursday. “We are pleased that the U.S. Supreme Court has upheld a Wisconsin law that promotes public safety.”
Some circumstances in Mitchell’s case are similar to those involving Dawn M. Prado, 52, of Madison, who was charged in 2015 with homicide by drunken driving for allegedly causing a head-on crash in December 2014 that killed a 55-year-old Stoughton woman.
Prado was injured in the crash, which happened, according to a criminal complaint filed in Dane County Circuit Court, after she crossed the center line on Highway MM in Fitchburg and struck a car driven by Janet M. Grady, who died at the scene. Prado was unconscious when blood was drawn from her, revealing her blood alcohol concentration to be 0.081%, just over the legal limit in Wisconsin. Prado was only allowed a 0.02% maximum, however, because she had three prior drunken driving convictions.
In January 2016, then-Circuit Judge David Flanagan threw out the blood test result, ruling that police should have obtained a search warrant before taking blood from Prado, in keeping with a 2013 U.S. Supreme Court decision that requires police to obtain a search warrant before drawing blood from suspected drunken drivers.
Prosecutors argued that state law authorizes police to take blood from suspects who are incapable of giving conscious consent and appealed the ruling. The Prado case has been on hold in the state 4th District Court of Appeals, awaiting rulings in the Mitchell case and another involving Philip Hawley, who was convicted in Sauk County of drunken driving after blood was taken from him without a warrant while he was unconscious at a hospital following a 2013 motorcycle crash.
Hawley appealed, but the 4th District Court of Appeals did not rule. Instead, it sent the case to the state Supreme Court, which said it would wait until the U.S. Supreme Court ruled in the Mitchell case before deciding whether to take the Hawley case.
©2019 The Wisconsin State Journal (Madison, Wis.)