On June 27, 2019, the United States Supreme Court issued its decision in Mitchell v. Wisconsin. In Mitchell, the police arrested a driver for DUI. The police transported the driver to the police station to administer a breath alcohol test, but, during the trip, the driver grew more and more incapacitated. Due to the driver’s condition, the police reasoned that a breath test would not be possible. The police rerouted the driver to a hospital, where a sample of his blood was drawn without a warrant. The police did not attempt to apply for a warrant whatsoever after the DUI arrest. This is significant because, in 2013, the Supreme Court reaffirmed that a DUI driver’s blood sample may only be drawn when the police have a warrant, or when one of the few well-delineated exceptions to the warrant requirement exist. In Mitchell, the government attempted to justify the warrantless seizure of the driver’s blood not on one of the few well-delineated exceptions recognized by the Court, but under the Wisconsin “implied consent” statute. (See Wisc. Stat. 343.305.) The Wisconsin legislature, like most states, passed statutes that provide that all persons who drive on the public highways are “deemed” to have consented to provide a biological sample for alcohol or drug testing when arrested for DUI, and that persons who are found unconscious are “deemed” to have not withdrawn their consent to such testing. (See Wisc. Stat. 343.305.) The Mitchell case presented the Court with the question of whether Wisconsin’s implied consent statute was a valid exception to the Fourth Amendment’s warrant requirement. 

In its decision, the Court declined to hold that implied consent statutes are a valid exception to the Fourth Amendment’s warrant requirement. Instead, the Court held that when an officer has probable cause to believe an unconscious person has committed a DUI offense, and the person is taken to the hospital or similar facility due to their unconsciousness, and the police had no reasonable opportunity to administer an evidential breath alcohol test, the warrantless seizure of the person’s blood “almost always” does not offend the 4th Amendment.

Bartell, Hensel & Gressley filed an amicus brief on behalf of the California DUI Lawyers Association in the Mitchell v. Wisconsin case, and attended oral argument at the United States Supreme Court. CDLA’s argument rested on the notion that the government cannot condition the grant of a governmental privilege, like a driver’s license, on the waiver of a constitutional right. Implied consent statutes do exactly that. They require that ordinary people waive their right to be free from unreasonable searches under the Fourth Amendment in order to get a driver’s license.

After the Mitchell decision, the law remains rather unchanged. Persons arrested for DUI may only have their blood drawn if the police have a warrant, or one of the few well-delineated exceptions to the warrant requirement applies. No court has ever held that California’s implied consent statute is a valid exception to the Fourth Amendment’s warrant requirement when a person is arrested for DUI.