Author:Brown, M. Kimberly

This spring, the United States Supreme Court will hear the next challenge to implied consent laws. This case, Mitchell v. Wisconsin, involves the warrantless blood draw of an unconscious person suspected of impaired driving.


In this case, police received a phone call from a person reporting to have seen an intoxicated Mitchell get into a vehicle and drive away. A police officer contacted Mitchell a short time later at an area beach. He admitted to drinking alcohol prior to driving and to continuing to drink alcohol after arriving at the beach. His speech was slurred, and he had difficulty maintaining his balance. (2) Out of concern for Mitchell's safety, the police officer did not administer field sobriety tests. Mitchell submitted to a preliminary breath test with a result of .24. (3) The officer arrested Mitchell for operating while intoxicated. After arrest and on the way to the police station, Mitchell's condition deteriorated as he became more "lethargic." Upon arrival at the station, it became clear that an evidential breath test would not be possible, so the officer took Mitchell to a hospital for a blood draw.

On the drive to the hospital, Mitchell appeared to the officer to be "completely incapacitated, [and| would not wake with any type of stimulation." (4) Upon arrival at the hospital, Mitchell was unable to maintain an upright position in his wheelchair and sat "slumped over." (5) In the emergency room, the officer read to Mitchell the Informing the Accused form, thereby providing him the opportunity to withdraw his consent. (6) He was too incapacitated to respond. The officer directed the hospital staff to withdraw a sample of Mitchell's blood. His blood was withdrawn; Mitchell did not wake during the process. The sample was tested, and the result was .222. (7)

Mitchell was charged with driving with a prohibited alcohol concentration and operating a motor vehicle while intoxicated, as a 7th offense. (8) Mitchell filed a motion to suppress the blood results, arguing the warrantless blood draw violated his rights under the United States and Wisconsin Constitutions. The State argued the implied consent law meant (1) Mitchell consented to the blood draw when he drove on Wisconsin highways (9) and (2) as an unconscious person, Mitchell was presumed not to have withdrawn his consent. (10,11) The State expressly stated it was not relying on exigent circumstances to justify the warrantless blood draw. (12)

The trial court denied Mitchell's motion and a jury convicted him of both offenses. Mitchell appealed on the basis that the warrantless blood draw violated his 4th...

To continue reading