EPIC - Wisconsin v. Mitchell

Wisconsin v. Mitchell

Whether a state “implied consent” statute authorizing a blood draw from an unconscious motorist satisfies the consent exception to the Fourth Amendment warrant requirement.

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Summary

The Supreme Court has agreed to review a case concerning whether a state “implied consent” statute authorizing a blood draw from an unconscious motorist satisfies the consent exception to the Fourth Amendment warrant requirement.The defendant argues that the State violated his Fourth Amendment right against unreasonable search and seizure when it conducted a warrantless blood draw incident to arrest for drunk driving while the defendant was unconscious. The State argues that, pursuant to Wisconsin law, the defendant impliedly consented to the blood draw and forfeited his opportunity to withdraw his consent by falling unconscious. The Sheboygan County Circuit Court denied the defendant’s motion to suppress the results of the blood draw. Confronted by conflicting appellate case law, the Court of Appeals of Wisconsin certified the question to the Supreme Court of Wisconsin. The Supreme Court of Wisconsin affirmed, and the Supreme Court of the United States has granted certiorari.

Background

Factual History

The City of Sheboygan Police Department received a report that Mitchell, the defendant, drove while intoxicated. When confronted by a law enforcement officer, Mitchell exhibited impaired faculties and conceded that he had been drinking. The officer administrated a preliminary breath test, revealing that Mitchell’s blood alcohol concentration exceeded legal limits, and consequently arrested Mitchell. On the way to the police station, Mitchell became lethargic and, eventually, “completely incapacitated,” thus rendering a subsequent breath test infeasible. The officer transported Mitchell to a hospital to have the hospital staff draw a sample of Mitchell’s blood. Before the sample was drawn, the officer read Mitchell the “Informing the Accused” form, notifying him of the opportunity to withdraw his consent to the blood draw, but Mitchell was “so incapacitated [that] he could not answer.” The hospital staff drew the blood sample. Mitchell remained unconscious throughout the procedure. A test of the blood sample confirmed that Mitchell’s blood alcohol concentration exceeded the legal limit.

Legal Background

Under Wisconsin Statute section 343.305(2)-(3)(a), a driver impliedly consents to “one or more tests of his or her breath, blood or urine” upon request of a law enforcement officer to, inter alia, determine the driver’s blood alcohol content by driving upon a Wisconsin public roadway and exhibiting probable cause to believe that the driver drove while intoxicated. When requesting a chemical specimen from a driver, a law enforcement officer must read to the driver the “Informing the Accused” form, conveying that the driver may consent to or refuse the tests. This option to refuse is deemed “a statutory opportunity to withdraw consent.”

Section 343.305(3)(b) also states that “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent,” and that a law enforcement officer who has probable cause to believe that the person was drunk driving may administer a chemical specimen test to the unconscious person.

Procedural History

Sheboygan County Circuit Court

Before trial, Mitchell moved to suppress the blood test results, arguing that the warrantless blood draw, conducted while he was unconscious, violated his Fourth Amendment right to be free from unreasonable searches and seizures. The State waived any argument based on exigent circumstances. Instead, the State argued that, pursuant to Wisconsin’s implied consent law, Mitchell consented to the blood draw by driving on Wisconsin highways, and that Wisconsin law establishes a presumption that an unconscious person does not withdraw his consent to search. Relying on the Wisconsin law, and finding that the officer had probable cause to believe that Mitchell drove while intoxicated, the circuit court denied the Mitchell’s motion. A jury convicted Mitchell of both operating a vehicle while intoxicated and having a blood alcohol concentration above the legal limit.

Mitchell appealed to the Court of Appeals of Wisconsin.

Court of Appeals of Wisconsin

The Court of Appeals of Wisconsin grappled with its own conflicting precedent before certifying to the Supreme Court of Wisconsin the question of “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.”

The Court of Appeals of Wisconsin identified Wisconsin v.Padley, 849 N.W.2d 867 (Wisc. Ct. App. 2014), and Wisconsin v. Wintlend, 655 N.W.2d 745 (Wisc. Ct. App. 2002) as the sources of its impasse. In Padley, the court held that consent is evaluated at the time the officer recites the “Informing the Accused” form, and that implied consent does not constitute actual consent nor satisfy the consent exception to the warrant requirement. Rather, the court held that implied consent requires a driver to choose between consenting to a search or refusing and incurring civil or administrative sanctions (such as license suspension). Conversely, in Wintlend, the court held that a driver gives consent at the time of obtaining a driver’s license and that statutorily implied consent constitutes actual and voluntary consent.

Without jurisdiction to resolve its own precedential conflict, the court turned to the Supreme Court of Wisconsin for resolve.

Supreme Court of Wisconsin

The Supreme Court of Wisconsin affirmed the circuit court's judgment. However, the court's reasoning and conclusions departed from those of the lower courts.

The Supreme Court of Wisconsin resolved the conflict in the Court of Appeals by overruling Padley. The court cited Padley's direct conflict with the Court of Appeals’ earlier decision in Wintlend and called Padley’s distinction between "implied consent" and "actual consent" "simply wrong as matter of law." The court also rejected Padley'srequirement that consent be "knowingly" given.

The court proceeded to find that Mitchell voluntarily consented to the blood draw. The court first drew upon “pervasively regulated businesses” and “‘closely regulated’ industries” to espouse that, by participating in certain businesses or activities, an individual “in effect consents to the restrictions placed upon him.” Accordingly, the court found that Wisconsin’s “well-publicized” implied consent law authorizing warrantless evidentiary searches constitutes a condition of “exercis[ing] the privilege of driving in Wisconsin.” Mitchell voluntarily accepted this condition by choosing to drive on a Wisconsin roadway.

The court also found that, considering the totality of the circumstances, the blood draw was reasonable because Mitchell was unconscious when the officer recited the “Informing the Accused” form. Relying upon its earlier conclusions that Mitchell consented to the search by driving on Wisconsin roads, and that police had probable cause to believe Mitchell drove while intoxicated, the court applied the statutory presumption that an unconscious person does not withdraw his consent. The court held that Mitchell forfeited his opportunity to withdraw his consent while unconscious, concluding that the probable cause requirement serves as a sufficient safeguard for drivers who are unconscious.

Supreme Court of the United States

On October 1, 2018, the defendant filed a petition for a writ of certiorari, which the Supreme Court granted on January 11, 2019.

EPIC's Interest

EPIC has a longstanding interest in safeguarding Fourth Amendment protections. The Wisconsin implied consent statute, if allowed to stand, could invite governments to expand implied consent rules to other types of searches, including cell phones and car black boxes.