Blood DRAW FROM THE UNCONSCIOUS in MN
SEARCH WARRANTS - BLOOD FROM THE UNCONSCIOUS
Do police need a search warrant to take blood from an unconscious DWI suspect?
The United States Supreme Court iscurrently reviewing Mitchell v. Wisconsin, to determine whether Wisconsin’s “implied consent” statute authorizing a blood draw from an unconscious motorist satisfies the consent exception to the Fourth Amendment warrant requirement.
Imputing consent for a blood draw by all drivers, and presuming that an unconscious person has not withdrawn consentis also the law in Minnesota and in 27 other states. State courts are split on whether these provisions violate the Fourth Amendment. Ultimately, the Supreme Court’s decision on the issue will determine whether or not these laws are constitutional.
Wisconsin law imputes consent to test for alcohol to any person who drives on a public road. The law also says that an unconscious person cannot withdraw consent. However, the Fourth Amendment generally requires officers to obtain a warrant for a blood draw, or to show that an exception to the warrant requirement applies. This case tests whether Wisconsin’s informed-consent law violates the Fourth Amendment.
Awarrantless search ispresumed unreasonableby the courts unless it falls within a narrowly defined exception to the Fourth Amendment. For example, an officer can engage in a warrantless search in order to preserve evidence from imminent destruction (under the “exigent circumstances” exception). An officer can also perform a warrantless search of an individual incident to a lawful arrest. Or an officer can conduct a lawful warrantless search if a suspect consents to the search. But for this exception to apply, consent to the search must be voluntary and revocable, in most cases.
In Birchfield v. North Dakota (2016), the United States Supreme Court reaffirmed its approval of state implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to submit to testing.
However, at the same time, the Court struck down state criminal penalties imposed when a motorist refuses to submit to a blood draw given the warrant requirement of the Fourth Amendment. But the Court was silent on the issue of whether a state’s implied-consent law can apply to an unconscious motorist, who, by definition, cannot withdraw consent. That’s the question presented in the Wisconsin case.
The Supreme Court recognized in Birchfield that a blood draw is a significant intrusion into a person’s privacy, raising Fourth Amendment concerns. States already have numerous other ways to enforce drunk-driving laws against unconscious motorists. For example, officers can get a warrant to draw blood. Or, in appropriate circumstances, police could rely on the exigent-circumstances exception to the warrant requirement and obtain the test.
The Supreme Court will issue its decision in Mitchell v. Wisconsinlater this year.
If you find yourself facing DWI, or OWI charges involving a breath, blood or urine test and need to explore your options for getting your driving privileges restored, our seasoned lawyers can help. Attorneys are available 24-7 — Call us at 612-334-3342.
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