The U.S. Supreme Court ruled on the case in 2019 before remanding it for Wisconsin courts to decide under the U.S. Supreme Court’s holding.
JEFF M. BROWN
Sep. 14, 2022 – A man arrested for operating while intoxicated (OWI) failed to show that a blood draw ordered by the police while he was unconscious was unconstitutional, the Wisconsin Court of Appeals has ruled.
In State v. Mitchell, 2019AP1942 (June 15, 2022), the Court of Appeals District II held that Gerald Mitchell failed to show the police would not have drawn his blood if they had not been seeking information about the blood-alcohol-content (BAC) level of his blood.
Mitchell was arrested on suspicion of OWI in Sheboygan County in July 2013. When a police officer found Mitchell, Mitchell was slurring his words and stumbling. He could barely stand without help from two police officers.
After the police determined that conducting field sobriety tests would be pointless (and dangerous) they arrested Mitchell for OWI. The police drove Mitchell to the police station, where they planned to give him a breath test.
But once at the station, Miller was so lethargic he couldn’t complete a breath test. So the police drove Mitchell to the hospital for a blood draw.
Mitchell passed out on the way to the hospital and had to be wheeled in. Pursuant to the state’s implied consent law, a police officer read aloud to Mitchell – by now slumped over – the standard statement that informs a driver that he or she may refuse a BAC test.
Mitchell didn’t respond, so the police officer asked a hospital employee to draw Mitchell’s blood. An analysis of Mitchell’s blood showed his BAC to be .222%.
Fourth Amendment Issue
The Sheboygan County District Attorney charged Mitchell with two OWI violations. Mitchell moved to suppress the results of the blood draw, arguing that it violated the Fourth Amendment because it wasn’t conducted pursuant to a warrant.
The circuit court denied Mitchell’s motion and the jury convicted him on both charges. When Mitchell appealed, the Wisconsin Court of Appeals certified the case to the Wisconsin Supreme Court. The supreme court affirmed Mitchell’s convictions.
Mitchell then appealed to the U.S. Supreme Court.
Appeal to U.S. Supreme Court
The U.S. Supreme Court held that for a drunk driving arrest, exigency exists when 1) BAC evidence is dissipating and 2) an additional factor gives rise to pressing health, safety, or law enforcement needs that would take priority over seeking a warrant for a blood draw.
When an OWI suspect is unconscious, the U.S. Supreme Court held, those two conditions are met and a warrantless blood draw is constitutional.
In its decision, the U.S. Supreme Court said that “unconsciousness … is itself a medical emergency. It means that the suspect will have to be rushed to the hospital … not just for the blood test itself but for urgent medical care.”
The Court went on to say that in such a situation, the police could reasonably anticipate that an unconscious driver would require monitoring and support on his or her way to the hospital, where a blood draw would be conducted regardless of any investigatory needs.
The Court held that when the police have probable cause to believe that a driver has committed a drunk-driving offense and his or her unconsciousness requires a trip to the hospital before they can conduct a breath test, “they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”
But the Court said that in rare cases, an unconscious driver could show that his or her blood would not have been drawn if: 1) the police weren’t seeking information about the driver’s BAC; and 2) the police could not have reasonably concluded that the warrant application would interfere with other pressing needs.
Consequently, the Court remanded the case to give Mitchell a chance to show that he met the two-pronged standard established in its decision.
Upon remand, the Sheboygan County Circuit Court determined that Mitchell had failed to make the showing allowed by the U.S. Supreme Court’s holding. Mitchell appealed.
Writing for a three-judge panel, Presiding Judge Mark Gundrum explained that Mitchell first must show that his blood would not have been drawn if the police weren’t seeking information about his BAC.
Mitchell argued that the Court of Appeals should look at the subjective intent of the officer who drove him to the hospital. That officer, Mitchell argued, took him to the hospital to obtain BAC evidence for the police, and not to obtain medical care for Mitchell.
The court of appeals disagreed.
“The Court did express that police can reasonably anticipate or expect that medical personnel ‘may’ draw such a motorist’s blood for medical reasons … but whether or not a particular officer does in fact anticipate that a draw will occur for such reasons in a particular case is completely irrelevant to the legality of the blood draw,” Gundrum wrote.
Blood Draw was Legal
Judge Gundrum noted that the U.S. Supreme Court had concluded that because Mitchell’s unconsciousness made it impossible for the police officer to give him a breath test, “the officer’s decision to take him to the hospital for a blood test ‘was reasonable.’”
Gundrum also pointed out that at the circuit court hearing held after the U.S. Supreme Court remanded the case, the police officer testified that Mitchell “‘nearly fell going from the street to the sidewalk.’”
The officer also testified that Mitchell’s condition went downhill on the way to the police station, and continued to deteriorate on the way to the hospital.
Judge Gundrum noted that at the hospital, the officer needed help to put Mitchell into a wheelchair. Additionally, Gundrum pointed out, staff at the hospital drew Mitchell’s blood for diagnostic purposes.
“Because Mitchell has failed to make even the first showing [of the U.S Supreme Court’s two-prong test], the officer’s decision … did not offend the Fourth Amendment,” Judge Gundrum wrote.