In a split decision, and further eroding the Fourth Amendment, SCOTUS ruled that police do not need a warrant or consent to take your blood if you are unable to consent.

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Supreme Court Rules Cops Do NOT Need a Warrant to Draw Your Blood If You’re Unable to Consent

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On Thursday, the Supreme Court of the United States Ruled that police officers do not need your consent, nor do they need a warrant, to draw your blood—so long as you are unconscious—and police accuse you of being under the influence.

The ruling on Thursday is in stark contrast to the previous precedent which stated that police do need a warrant to perform a blood test if the driver does not or cannot voluntarily consent.

As Reason points out, the Court’s judgment actually dodged the major question presented by the case: Whether a state can force a citizen to consent in advance to unwarranted blood tests as a condition of driving.

The SCOTUS case in question was Mitchell v. Wisconsin and began after Gerald Mitchell was arrested for DUI.

According to the case, “Mitchell was arrested for operating a vehicle while intoxicated after a preliminary breath test registered a blood alcohol concentration (BAC) that was triple Wisconsin’s legal limit for driving. As is standard practice, the arresting officer drove Mitchell to a police station for a more reliable breath test using evidence-grade equipment. By the time Mitchell reached the station, he was too lethargic for a breath test, so the officer drove him to a nearby hospital for a blood test. Mitchell was unconscious by the time he arrived at the hospital, but his blood was drawn anyway under a state law that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so.”

Because police took his blood without a warrant and without his consent, Mitchell moved to have his BAC suppressed, citing a violation of his fourth Amendment rights. The court denied that motion and Mitchell was convicted. Mitchell then appealed this decision.

Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh held that testing someone’s blood without their consent is covered by the “exigent circumstances” exception to the Fourth Amendment which allows police conduct warrantless searches in order to preserve the destruction of evidence.

Justice Clarence Thomas concurred in the judgement but noted that it doesn’t go far enough. Thomas warned that this case may over-complicate the rules for what defines exigent circumstances. In other words, Thomas wants cops to be able to forcibly draw your blood anytime they want to “preserve evidence,” period.

The decision was not unanimous, however, and Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan dissented, questioning whether exigent circumstances described by the Court’s ruling even existed.

As Reason points out:

Wisconsin, in fact, did not make any such argument while defending the blood draw and even conceded that the situation was not so pressing that its officers couldn’t take the time to get a warrant. At the trial court stage, the state even admitted that this was not a case of exigent circumstances. Instead, the state leaned heavily on the “implied consent” demand under Wisconsin law.

Sotomayor laid this out clearly in her dissent, noting that “Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here. In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

She went further, pointing out that with advancements in technology and having judges on standby 24-hours a day that these officers could’ve obtained a warrant “within 5 to 15 minutes.”

Acting entirely on its own freewheeling instincts—with no briefing or decision below on the question—the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment. With respect, I dissent.

As TFTP previously reported, states across the country — before this ruling further eroded the Fourth Amendment — were already conducting unconstitutional “no refusal DUI blood draw checkpoints.”

Also, as the high profile case in Salt Lake City, Utah illustrated in 2017, police were entirely comfortable drawing blood on unconscious subjects without a warrant. In fact, as the arrest of Nurse Alex Wubbels showed the world, police were willing to kidnap and cage people for refusing to carry out these warrantless blood draws for them.

While Wubbles beat the charges stemming from her arrest over refusing to violate the constitution, this new ruling would have changed the outcome and she very well could be sitting in a cage right now for what was once believed to be a heroic act just two years ago.


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