Another attack on our Constitution...

Supreme Court Affirms Police Can Order Blood Drawn From Unconscious DUI Suspects

By NINA TOTENBERG and BILL CHAPPELL

The Supreme Court has ruled that police may, without a warrant, order blood drawn from an unconscious person suspected of driving under the influence of alcohol.

The Fourth Amendment generally requires police to obtain a warrant for a blood draw. But in a 5-4 vote on Thursday, the court upheld a Wisconsin law that says people driving on a public road have impliedly consented to having their blood drawn if police suspect them of driving under the influence. It also said that "exigent circumstances" permit police to obtain a blood sample without a warrant.

Justices Samuel Alito, Clarence Thomas, Stephen Breyer and Brett Kavanaugh joined Chief Justice John Roberts in the majority vote.

The decision conflicts with previous court rulings in which the justices ruled that a blood draw is a significant bodily intrusion into a person's privacy and that there are less intrusive ways of enforcing drunken driving laws against unconscious motorists — getting a warrant, for instance, which in these tech-savvy days can be done relatively easily and quickly.

In 2013, for instance, the high court ruled that police violated the Constitution when they ordered a nonconsensual blood draw without a warrant in a routine DUI case. The vote then was 5-4, but two of the justices in that majority, Antonin Scalia and Anthony Kennedy, are no longer on the court.

The constitutional rights case produced four opinions — two concurring and two in dissent. In a break with his conservatives benchmates, one of those dissents came from Justice Neil Gorsuch.

The opinions reflect a deep divide over an essential question: whether the Wisconsin case should be decided on the basis of implied consent or on the question of what kind of emergencies allow for an exception to Fourth Amendment protections.

In his concurring opinion, Thomas wrote that because the evidence of alcohol in drivers' blood will dissipate over time, states can invoke the "exigent-circumstances doctrine" on that basis alone to allow police to order a blood test without a warrant. Explaining why he took a stand apart from Alito's plurality opinion, Thomas wrote that it "adopts a rule more likely to confuse than clarify."

Alito's concurring opinion agreed that speed is vital in obtaining blood-alcohol evidence. But he also said that the demands on police officers' time contribute to creating exigent circumstances that allow an exception to warrant requirements — especially if an unconscious motorist has caused a crash. And he noted that police usually take such drivers to the emergency room — removing their chance of administering a breath test at the police station.

"Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk," Alito wrote. "It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish."

Discussing the emergency conditions created by unconscious drivers, Alito said that "forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies," he wrote, in an opinion that was joined by Breyer, Kavanaugh and Roberts.

Twenty-eight states have laws similar to Wisconsin's. The case, Mitchell v. Wisconsin, was accepted by the court at the start of this year, amid sharp divisions among state appellate courts over whether the blood draws violate motorists' Fourth Amendment rights.