GERALD P. MITCHELL, PETITIONER
April 23, 2019
WRIT OF CERTIORARI TO THE SUPREME COURT OF WISCONSIN
Gerald Mitchell was arrested for operating a vehicle while
intoxicated after a preliminary breath test registered a
blood alcohol concentration (BAC) that was triple
Wisconsin's legal limit for driving. As is standard
practice, the arresting officer drove Mitchell to a police
station for a more reliable breath test using evidence-grade
equipment. By the time Mitchell reached the station, he was
too lethargic for a breath test, so the officer drove him to
a nearby hospital for a blood test. Mitchell was unconscious
by the time he arrived at the hospital, but his blood was
drawn anyway under a state law that presumes that a person
incapable of withdrawing implied consent to BAC testing has
not done so. The blood analysis showed Mitchell's BAC to
be above the legal limit, and he was charged with violating
two drunk-driving laws. Mitchell moved to suppress the
results of the blood test on the ground that it violated his
Fourth Amendment right against "unreasonable
searches" because it was conducted without a warrant.
The trial court denied the motion, and Mitchell was
convicted. On certification from the intermediate appellate
court, the Wisconsin Supreme Court affirmed the lawfulness of
Mitchell's blood test.
The judgment is vacated, and the case is remanded.
2018 WI 84, 383 Wis.2d 192, 914 N.W.2d 151');">914 N.W.2d 151, vacated and
remanded. Justice Alito, joined by The Chief Justice, Justice
Breyer, and JUSTICE KAVANAUGH, concluded that when a driver
is unconscious and cannot be given a breath test, the
exigent-circumstances doctrine generally permits a blood test
without a warrant. Pp. 5-17.
(a) BAC tests are Fourth Amendment searches. See
Birchfield v. North Dakota, 579 U.S.__, __. A
warrant is normally required for a lawful search, but there
are well-defined exceptions to this rule, including the
"exigent circumstances" exception, which allows
warrant- less searches "to prevent the imminent
destruction of evidence." Missouri v. McNeely,
569 U.S. 141, 149. In McNeely, this Court held that
the fleeting nature of blood-alcohol evidence alone was not
enough to bring BAC testing within the exigency exception.
Id., at 156. But in Schmerber v.
California, 384 U.S. 757, the dissipation of BAC did
justify a blood test of a drunk driver whose accident gave
police other pressing duties, for then the further
delay caused by a warrant application would indeed have
threatened the destruction of evidence. Like
Schmerber, unconscious-driver cases will involve a
heightened degree of urgency for several reasons. And when
the driver's stupor or unconsciousness deprives officials
of a reasonable opportunity to administer a breath test using
evidence-grade equipment, a blood test will be essential for
achieving the goals of BAC testing. Pp. 5-7.
(b) Under the exigent circumstances exception, a warrantless
search is allowed when" 'there is compelling need
for official action and no time to secure a
warrant.'" McNeely, 569 U.S., at 149. Pp.
(1)There is clearly a "compelling need" for a blood
test of drunk-driving suspects whose condition deprives
officials of a reasonable opportunity to conduct a breath
test. First, highway safety is a vital public interest-a
"compelling" and "paramount" interest,
Mackey v. Montrym, 443 U.S. 1, 17-18. Second, when
it comes to promoting that interest, federal and state
lawmakers have long been convinced that legal limits on a
driver's BAC make a big difference. And there is good
reason to think that such laws have worked.
Birchfield, 579 U.S.__, at. Third, enforcing BAC
limits obviously requires a test that is accurate enough to
stand up in court. Id.__, at. And such testing must
be prompt because it is "a biological certainty"
that "[a]lcohol dissipates from the bloodstream,"
"literally disappearing by the minute."
McNeely, 569 U.S., at 169 (ROBERTS, C. J.,
concurring). Finally, when a breath test is unavailable to
promote the interests served by legal BAC limits, "a
blood draw becomes necessary." Id., at 170. Pp.
(2) Schmerber demonstrates that an 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.
Because both conditions are met when a drunk-driving suspect
is unconscious, Schmerber controls. A driver's
unconsciousness does not just create pressing needs; it is
itself a medical emergency. In such a case, as in
Schmerber, an officer could "reasonably have
believed that he was confronted with an emergency." 384
U.S., at 771. And in many unconscious-driver cases, the
exigency will be especially acute. A driver so drunk
as to lose con- sciousness is quite likely to crash, giving
officers a slew of urgent tasks beyond that of securing
medical care for the suspect-tasks that would require them to
put off applying for a warrant. The time needed to secure a
warrant may have shrunk over the years, but it has not
disappeared; and forcing police to put off other urgent tasks
for even a relatively short period of time may have terrible
collateral costs. Pp. 12-16.
(c) On remand, Mitchell may attempt to show that his was an
unusual case, in which his blood would not have been drawn
had police not been seeking BAC information and police could
not have reasonably judged that a warrant application would
interfere with other pressing needs or duties. Pp. 16-17.
THOMAS would apply a per se rule, under which the
natural metabolization of alcohol in the blood stream
"creates an exigency once police have probable cause to
believe the driver is drunk," regardless of whether the
driver is conscious. Missouri v. McNeely, 569 U.S.
141, 178 (Thomas, J., dissenting). Pp. 1-4.
J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and BREYER and KAVANAUGH,
JJ., joined. THOMAS, J., filed an opinion concurring in the
judgment. So-TOMAYOR, J., filed a dissenting opinion, in
which GlNSBURG and KAGAN, JJ., joined. GORSUCH, J., filed a
JUSTICE Alito announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, Justice
Breyer, and Justice Kavanaugh join.
case, we return to a topic that we have addressed twice in
recent years: the circumstances under which a police officer
may administer a warrantless blood alcohol concentration
(BAC) test to a motorist who appears to have been driving
under the influence of alcohol. We have previously addressed
what officers may do in two broad categories of cases. First,
an officer may conduct a BAC test if the facts of a
particular case bring it within the exigent-circumstances
exception to the Fourth Amendment's general requirement
of a warrant. Second, if an officer has probable cause to
arrest a motorist for drunk driving, the officer may conduct
a breath test (but not a blood test) under the rule allowing
warrantless searches of a person incident to arrest.
we consider 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. In
such cases, we hold, the exigent-circumstances rule almost
always permits a blood test without a warrant. When a breath
test is impossible, enforcement of the drunk-driving laws
depends upon the administration of a blood test. And when a
police officer encounters an unconscious driver, it is very
likely that the driver would be taken to an emergency room
and that his blood would be drawn for diagnostic purposes
even if the police were not seeking BAC information. In
addition, police officers most frequently come upon
unconscious drivers when they report to the scene of an
accident, and under those circumstances, the officers'
many responsibilities-such as attending to other injured
drivers or passengers and preventing further accidents-may be
incompatible with the procedures that would be required to
obtain a warrant. Thus, when a driver is unconscious, the
general rule is that a warrant is not needed.
Birchfield v. North Dakota, 579 U.S.__(2016), we
recounted the country's efforts over the years to address
the terrible problem of drunk driving. Today, "all
States have laws that prohibit motorists from driving with a
[BAC] that exceeds a specified level." Id.,
at__(slip op., at 2). And to help enforce BAC limits, every
State has passed what are popularly called implied-consent
laws. Ibid. As "a condition of the privilege
of" using the public roads, these laws require that
drivers submit to BAC testing "when there is sufficient
reason to believe they are violating the State's
drunk-driving laws." Id., at__, __(slip op., at
implied-consent law is much like those of the other 49 States
and the District of Columbia. It deems drivers to have
consented to breath or blood tests if an officer has reason
to believe they have committed one of several drug- or
alcohol-related offenses. See Wis.Stat. §§343.305(2),
(3). Officers seeking to conduct a BAC test must read aloud a
statement declaring their intent to administer the test and
advising drivers of their options and the implications of
their choice. §343.305(4). If a driver's BAC level
proves too high, his license will be suspended; but if he
refuses testing, his license will be revoked and his
refusal may be used against him in court. See ibid.
No test will be administered if a driver refuses- or, as the
State would put it, "withdraws" his statutorily
presumed consent. But "[a] person who is unconscious or
otherwise not capable of withdrawing consent is presumed not
to have" withdrawn it. §343.305(3)(b). See also
§§343.305(3)(ar)1-2. More than half the States have
provisions like this one regarding unconscious drivers.
sequence of events that gave rise to this case began when
Officer Alexander Jaeger of the Sheboygan Police Department
received a report that petitioner Gerald Mitchell, appearing
to be very drunk, had climbed into a van and driven off.
Jaeger soon found Mitchell wandering near a lake. Stumbling
and slurring his words, Mitchell could hardly stand without
the support of two officers. Jaeger judged a field sobriety
test hopeless, if not dangerous, and gave Mitchell a
preliminary breath test. It registered a BAC level of 0.24%,
triple the legal limit for driving in Wisconsin. Jaeger
arrested Mitchell for operating a vehicle while intoxicated
and, as is standard practice, drove him to a police station
for a more reliable breath test using better equipment.
way, Mitchell's condition continued to deteriorate-so
much so that by the time the squad car had reached the
station, he was too lethargic even for a breath test. Jaeger
therefore drove Mitchell to a nearby hospital for a blood
test; Mitchell lost consciousness on the ride over and had to
be wheeled in. Even so, Jaeger read aloud to a slumped
Mitchell the standard statement giving drivers a chance to
refuse BAC testing. Hearing no response, Jaeger asked
hospital staff to draw a blood sample. Mitchell remained
unconscious while the sample was taken, and analysis of his
blood showed that his BAC, about 90 minutes after his arrest,
was charged with violating two related drunk-driving
provisions. See §§346.63(1)(a), (b). He moved to
suppress the results of the blood test on the ground that it
violated his Fourth Amendment right against
"unreasonable searches" because it was conducted
without a warrant. Wisconsin chose to rest its response on
the notion that its implied-consent law (together with
Mitchell's free choice to drive on its highways) rendered
the blood test a consensual one, thus curing any Fourth
Amendment problem. In the end, the trial court denied
Mitchell's motion to suppress, and a jury found him
guilty of the charged offenses. The intermediate appellate
court certified two questions to the Wisconsin Supreme Court:
first, whether compliance with the State's
implied-consent law was sufficient to show that
Mitchell's test was consistent with the Fourth Amendment
and, second, whether a warrantless blood draw from an
unconscious person violates the Fourth Amendment. See 2018 WI
84, ¶I5, 383 Wis.2d 192, 202-203, 914 N.W.2d 151');">914 N.W.2d 151,
155-156 (2018). The Wisconsin Supreme Court affirmed
Mitchell's convictions, and we granted certiorari, 586
U.S.__(2019), to decide "[w]hether a statute authorizing
a blood draw from an unconscious motorist provides an
exception to the Fourth Amendment warrant requirement,"
Pet. for Cert. ii.
considering Wisconsin's implied-consent law, we do not
write on a blank slate. "Our prior opinions have
referred approvingly to the general concept of
implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to
comply." Birch-field, 579 U.S., at__(slip op.,
at 36). But our decisions have not rested on the idea that
these laws do what their popular name might seem to
suggest-that is, create actual consent to all the searches
they authorize. Instead, we have based our decisions on the
precedent regarding the specific constitutional claims in
each case, while keeping in mind the wider regulatory scheme
developed over the years to combat drunk driving. That scheme
is centered on legally specified BAC limits for
drivers-limits enforced by the BAC tests promoted by
the last 50 years, we have approved many of the defining
elements of this scheme. We have held that forcing
drunk-driving suspects to undergo a blood test does not
violate their constitutional right against
self-incrimination. See Schmerberv. California, 384
U.S. 757, 765 (1966). Nor does using their refusal against
them in court. See South Dakota v. Neville, 459 U.S.
553, 563 (1983). And punishing that refusal with automatic
license revocation does not violate drivers' due process
rights if they have been arrested upon probable cause,
Mackey v. Montrym, 443 U.S. 1 (1979); on the
contrary, this kind of summary penalty is
"unquestionably legitimate." Neville,
supra, at 560.
cases generally concerned the Fifth and Fourteenth
Amendments, but motorists charged with drunk driving have
also invoked the Fourth Amendment's ban on
"unreasonable searches" since BAC tests are
"searches." See Birchfield, 579 U.S.,
at__(slip op., at 14). Though our precedent normally requires
a warrant for a lawful search, there are well-defined
exceptions to this rule. In Birchfield, we applied
precedent on the "search-incident-to-arrest"
exception to BAC testing of conscious drunk-driving suspects.
We held that their drunk-driving arrests, taken alone,
justify warrantless breath tests but not blood tests, since
breath tests are less intrusive, just as informative, and (in
the case of conscious suspects) readily available.
Id., at__(slip op., at 35).
also reviewed BAC tests under the "exigent
circumstances" exception-which, as noted, allows
warrantless searches "to prevent the imminent
destruction of evidence." Missouri v. McNeely,
569 U.S. 141, 149 (2013). In McNeely, we were asked
if this exception covers BAC testing of drunk-driving
suspects in light of the fact that blood-alcohol evidence is
always dissipating due to "natural metabolic
processes." Id., at 152. We answered that the
fleeting quality of BAC evidence alone is not enough.
Id., at 156. But in Schmerber it
did justify a blood test of a drunk driver who had
gotten into a car accident that gave police other pressing
duties, for then the "further delay"
caused by a warrant application really "would
have threatened the destruction of evidence."
McNeely, supra, at 152 (emphasis added).
Schmerber, this case sits much higher than
McNeely on the exigency spectrum. McNeely
was about the minimum degree of urgency common to all
drunk-driving cases. In Schmerber, a car accident
heightened that urgency. And here Mitchell's medical
condition did just the same.
stupor and eventual unconsciousness also deprived officials
of a reasonable opportunity to administer a breath test. To
be sure, Officer Jaeger managed to conduct "a
preliminary breath test" using a portable machine when
he first encountered Mitchell at the lake. App. to Pet. for
Cert. 60a. But he had no reasonable opportunity to give
Mitchell a breath test using "evidence-grade breath
testing machinery." Birchfield, 579 U.S., at
__(SOTOMAYOR, J., concurring in part and dissenting in part)
(slip op., at 10). As a result, it was reasonable for Jaeger
to seek a better breath test at the station; he acted with
reasonable dispatch to procure one; and when Mitchell's
condition got in the way, it was reasonable for Jaeger to
pursue a blood test. As JUSTICE SOTOMAYOR explained in her
partial dissent in Birchfield:
"There is a common misconception that breath tests are
conducted roadside, immediately after a driver is arrested.
While some preliminary testing is conducted roadside,
reliability concerns with roadside tests confine their use in
most circumstances to establishing probable cause for an
arrest. . . . The standard evidentiary breath test is
conducted after a motorist is arrested and transported to a
police station, governmental building, or mobile testing
facility where officers can access reliable, evidence-grade
breath testing machinery." Id., at__(slip op.,
the "standard evidentiary breath test is conducted after
a motorist is arrested and transported to a police
station" or another appropriate facility,
ibid., the important question here is what officers
may do when a driver's unconsciousness (or stupor)
eliminates any reasonable opportunity for that kind
of breath test.
Fourth Amendment guards the "right of the people to be
secure in their persons . . . against unreasonable
searches" and provides that "no Warrants shall
issue, but upon probable cause." A blood draw is a
search of the person, so we must determine if its
administration here without a warrant was reasonable. See
Birchfield, 579 U.S. at__(slip op., at 14). Though
we have held that a warrant is normally required, we have
also "made it clear that there are exceptions to the
warrant requirement." Illinois v. McArthur, 531
U.S. 326, 330 (2001). And under the exception for exigent
circumstances, a warrantless search is allowed when
"'there is compelling need for official action and
no time to secure a warrant.'" McNeely,
supra, at 149 (quoting Michigan v. Tyler, 436
U.S. 499, 509 (1978)). In McNeely, we considered how
the exigent-circumstances exception applies to the broad
category of cases in which a police officer has probable
cause to believe that a motorist was driving under the
influence of alcohol, and we do not revisit that question.
Nor do we settle whether the exigent-circumstances exception
covers the specific facts of this case. Instead, we
address how the exception bears on the category of cases
encompassed by the question on which we granted
certiorari-those involving unconscious drivers. In those cases,
the need for a blood test is compelling, and an officer's
duty to attend to more pressing needs may leave no time to
seek a warrant.
importance of the needs served by BAC testing is hard to
overstate. The bottom line is that BAC tests are needed for
enforcing laws that save lives. The specifics, in short, are
these: Highway safety is critical; it is served by laws that
criminalize driving with a certain BAC level; and enforcing
these legal BAC limits requires efficient testing to obtain
BAC evidence, which naturally dissipates. So BAC tests are
crucial links in a chain on which vital interests hang. And
when a breath test is unavailable to advance those aims, a
blood test becomes essential. Here we add a word about each
of these points.
highway safety is a vital public interest. For decades, we
have strained our vocal chords to give adequate expression to
the stakes. We have called highway safety a "compelling
interest," Mackey, 443 U.S., at 19; we have
called it "paramount," id., at 17. Twice
we have referred to the effects of irresponsible driving as
"slaughter" comparable to the ravages of war.
Breithaupt v. Abram, 352 U.S. 432, 439 (1957);
Perez v. Campbell, 402 U.S. 637, 657, 672 (1971)
(Blackmun, J., concurring in result in part and dissenting in
part). We have spoken of "carnage,"
Neville, 459 U.S., at 558-559, and even
"frightful carnage," Tate v. Short, 401
U.S. 395, 401 (1971) (Blackmun, J., concurring). The
frequency of preventable collisions, we have said, is
"tragic," Neville, supra, at 558, and
"astounding," Breithaupt, supra, at 439.
And behind this fervent language lie chilling figures, all
captured in the fact that from 1982 to 2016, alcohol-related
accidents took roughly 10, 000 to 20, 000 lives in this
Nation every single year. See National Highway
Traffic Safety Admin. (NHTSA), Traffic Safety Facts 2016, p.
40 (May 2018). In the best years, that would add up to more
than one fatality per hour.
when it comes to fighting these harms and promoting highway
safety, federal and state lawmakers have long been convinced
that specified BAC limits make a big difference. States
resorted to these limits when earlier laws that included no
"statistical definition of intoxication" proved
ineffectual or hard to enforce. See Birchfield, 579
U.S., at__-__(slip op., at 2-3). The maximum permissible BAC,
initially set at 0.15%, was first lowered to 0.10% and then
to 0.08%. Id., at__, __-__(slip op., at 3, 6-7).
Congress encouraged this process by conditioning the award of
federal highway funds on the establishment of a BAC limit of
0.08%, see 23 U.S.C. § 163(a); 23 CFR §1225.1
(2012), and every State has adopted this limit. Not only that,
many States, including Wisconsin, have passed laws imposing
increased penalties for recidivists or for drivers with a BAC
level that exceeds a higher threshold. See Wis.Stat.
§346.65(2)(am); Birch-field, 579 U.S.,
at__(slip op., at 7).
is good reason to think this strategy has worked. As we noted
in Birchfield, these tougher measures corresponded
with a dramatic drop in highway deaths and injuries: From the
mid-1970's to the mid-1980's, "the number of
annual fatalities averaged 25, 000; by 2014 ..., the number
had fallen to below 10, 000." Id., at__(slip
op., at 6).
enforcing BAC limits obviously requires a test that is
accurate enough to stand up in court, id.,
at__-__(slip op., at 3-5); see also McNeely, 569
U.S., at 159-160 (plurality opinion). And we have recognized
that "[e]xtraction of blood samples for testing is a
highly effective means of" measuring "the influence
of alcohol." Schmerber, 384 U.S., at 771.
of BAC limits also requires prompt testing because it is
"a biological certainty" that "[a]lcohol
dissipates from the bloodstream at a rate of 0.01 percent to
0.025 percent per hour. . . . Evidence is literally
disappearing by the minute." McNeely, 569 U.S.,
at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral
nature of BAC was "essential to our holding in
Schmerber," which itself allowed a warrantless
blood test for BAC. Id., at 152 (opinion of the
Court). And even when we later held that the
exigent-circumstances exception would not permit a
warrantless blood draw in every drunk-driving case,
we acknowledged that delays in BAC testing can "raise
questions about. . . accuracy." Id., at 156.
no wonder, then, that the implied-consent laws that
incentivize prompt BAC testing have been with us for 65 years
and now exist in all 50 States. Birchfield, supra,
at__(slip op., at 6). These laws and the BAC tests they
require are tightly ...