State v. Gerald P. Mitchell
914 N.W.2d 151
Wis.2018Background
- Gerald Mitchell was arrested for OWI after officers found him intoxicated near a beach; a preliminary breath test read 0.24 and he later had BAC 0.222 from a blood sample drawn while unconscious.
- Mitchell became unconscious after arrest; officers read the Informing the Accused form but he could not respond; police directed hospital staff to draw blood without a warrant.
- Mitchell moved to suppress the blood-test results, arguing the warrantless draw from an unconscious person violated the Fourth Amendment; the State relied on Wisconsin's implied-consent statutes, Wis. Stat. §§ 343.305(2), (3)(a), (3)(b), and (4).
- The circuit court denied suppression under § 343.305(3)(b); a jury convicted Mitchell of OWI and driving with a prohibited alcohol concentration (PAC).
- The court of appeals certified two questions: whether implied consent (via driving while intoxicated) constitutes constitutionally sufficient consent, and whether a warrantless blood draw from an unconscious person under § 343.305(3)(b) violates the Fourth Amendment.
- The Wisconsin Supreme Court affirmed Mitchell’s convictions, holding that implied consent via conduct was constitutionally sufficient and that § 343.305(3)(b) reasonably permits warrantless blood draws of unconscious drivers who have not withdrawn consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether implied consent from driving while intoxicated is constitutionally sufficient consent for a blood draw | Mitchell: Implied-consent statutes do not equal actual constitutional consent; actual consent requires an affirmative choice after being informed | State: Driving on Wisconsin roads after drinking, when probable cause exists, amounts to consent under §§ 343.305(2) & (3)(a); statutes are consistent with Birchfield and civil penalties make refusal non-constitutional | Court: Implied consent arising from the conduct of driving while intoxicated is constitutionally sufficient (consent need not be knowing) |
| Whether a warrantless blood draw from an unconscious person under § 343.305(3)(b) violates the Fourth Amendment | Mitchell: Warrantless blood draw from an unconscious person is an intrusive search; implied consent alone cannot justify a per se exception to the warrant requirement | State: § 343.305(3)(b) presumes unconscious persons have not withdrawn consent; officer had probable cause and the defendant forfeited opportunity to withdraw by becoming unconscious | Court: § 343.305(3)(b)’s presumption is reasonable under the totality of circumstances; drawing blood was reasonable and did not violate the Fourth Amendment |
| Whether a suspect may withdraw previously-given implied consent (and effect of unconsciousness on withdrawal) | Mitchell: Withdrawal must be possible and meaningful; unconsciousness prevents a valid withdrawal so implied consent statute cannot supply actual consent | State: Statutory notice (§ 343.305(4)) is an opportunity to withdraw but a suspect can forfeit that opportunity by conduct (e.g., becoming unconscious); civil penalties are non-constitutional | Court: Consent can be withdrawn but Mitchell forfeited his opportunity by becoming unconscious; statute reasonably presumes no withdrawal when unconscious |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (warrantless blood draws may be justified by exigent circumstances)
- Missouri v. McNeely, 569 U.S. 141 (dissipation of alcohol may create exigency but no per se rule; totality of circumstances)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (breath tests may be search incident to arrest; blood tests are more intrusive and require closer scrutiny)
- South Dakota v. Neville, 459 U.S. 553 (refusal to submit to chemical tests is not a constitutional right; consequences may be statutory)
- Schneckloth v. Bustamonte, 412 U.S. 218 (consent exception to warrant requirement; voluntariness standard)
- United States v. Robinson, 414 U.S. 218 (search incident to lawful arrest doctrine)