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Scotus to hear Mitchell v. Wisconsin: do implied consent law allow warrantless blood draws when the person is unconscious

In the case of Mitchell v. Wisconsin, the United States Supreme Court has agreed to hear a case from Wisconsin addressing the issue of whether States can have a statute allowing warrantless blood draw of an unconscious suspect.   Wisconsin and 29 other States allow warrantless blood draws of an unconscious individual as part of its implied consent laws. In the Mitchell case, the Wisconsin Supreme Court in a divided opinion rejecting the Fourth Amendment challenge with three judges finding that consent was implied and two finding that consent was not required under the circumstances.

Implied consent means that when someone gets their driver’s license, they agree before hand to take a breath or blood test.  In other words, the consent is given when the person obtains their driver’s license.  If a person does not take a breath or blood test, the State can impose sanctions for refusal.  You can read the filings of the Mitchell case on the Scotus Blog.

If the defendant prevails on his Constitutional argument, laws in 29 states will be deemed unconstitutional allowing blood draws for someone that is unconscious.  Seven States Courts have found that unconscious blood draw statutes under the name of implied consent are unconstitutional under the Fourth Amendment.  The United States Supreme Court will resolve this split in how the Fourth Amendment is interpreted.

The defense argued that the legislature does not have the right to create legislation that negates individuals rights. The defense position is strong in this case because while term consent is used in the implied consent law, the person is not actually consenting, instead State’s create a legal fiction to enforce license suspensions for refusing a breath test.  However, the right to be free from the State removing blood from a  person without a warrant without actual consent is much different.  The United States Supreme Court should reject this attempt to allow the legislature to deprive someone of their Fourth Amendments rights through a statute.  Under this rationale, the State will never need a warrant to draw blood.  I would expect the United States Supreme Court to find this statute unconstitutional as it would create a dangerous precedent for how the Fourth Amendment is interpreted and further erode the warrant requirement.

For further reading, Tucker Higgins from CNBC wrote an excellent summary of the case.  To learn more about DUI Laws in the United States and throughout Massachusetts visit DelSignoredefense.com or our Facebook page.


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