US Supreme Court Deepens Confusion on Blood Draws

Blood Draws — Facts and circumstances will change from one DUI case to another, but one thing is nearly universal: the presence or absence of a breath or blood test is the single most important piece of evidence. When someone submits to a breath or blood test, a DUI attorney’s first action will inevitably be analyzing whether the test was conducted properly under state laws and regulations and, importantly, the United States Constitution.

This term, the Supreme Court of the United States made that task more difficult when it decided Mitchell v. Wisconsin. Mr. Mitchell’s story begins when the police are told that a drunk guy got into a van and drove off. The police come upon Mitchell stumbling around by a lake—not in his van. He was drunk and a roadside breath test confirmed it. His van was nearby, so they arrested him for DUI. The police bring Mitchell to the station to take a more reliable breath test but he passes out. The officer figured that since Mitchell was passed out, he couldn’t refuse a blood test because Wisconsin’s laws (like New Hampshire’s) state that people give “implied consent” to testing when they’re driving on our roads. So the officer drew the man’s blood for testing while he slept softly in state custody.

At court, Mitchell’s lawyer made the modest proposal that the officer should have sought a warrant first. Wisconsin, surprisingly, admitted that the officer had everything he needed to get one, but asked the court to say he didn’t need any. The trial judge agreed. Mitchell unsuccessfully appealed to the Wisconsin Supreme Court.

Finally, the U.S. Supreme Court took the case to decide whether an “implied consent” law allows the police to disregard any need to get a warrant. The Supreme Court answered an entirely different question: Whether passed-out drunks present an emergency situation. The ruling is composed of four opinions: one from Justice Alito, with three others joining; one from Justice Thomas alone; one from Justice Sotomayor with two joining; and one from Justice Gorsuch alone. There was no true majority, so the case is controlled by Alito’s opinion because it got the plurality of votes.

This plurality opinion tells us when the warrant requirement applies to DUIs involving an incapacitated suspect in future cases. And what it tells us is this: The police do not need a warrant to draw blood in emergency situations, and emergency situations are generally present when police encounter a person suspected of drunk driving, except when they aren’t. Not very helpful. And, keep in mind, that no one was arguing that there was an emergency. Less helpful is that Sotomayor’s opinion, which had only one fewer vote, says this case is easy and clearly required a warrant. So when the next incapacitated person is taken to a hospital chair to have blood drawn on suspicion of impairment, is the result of the test constitutional? As you can see, the answer is not so simple. Will courts follow Alito’s opinion? Will courts find this situation clear, like Sotomayor?

Will the New Hampshire Constitution be interpreted differently?

That depends on how the issue is presented to the court. That’s why it’s so important to have a lawyer on your side that had read the cases and understands the arguments that will help you get the result the Constitution demands. To get started, call Jared Bedrick at Douglas, Leonard & Garvey, P.C., 1-800-240-1988 or fill out our online contact form

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