Mitchell v. Wisconsin

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MITCHELL v. WISCONSIN
CERTIORARI TO THE SUPREME COURT OF WISCONSIN
No. 18–6210. Argued April 23, 2019—Decided June 27, 2019
Petitioner Gerald 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 driv-
ing. 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 le-
thargic 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. The blood analysis showed Mitchell’s
BAC to be above the legal limit, and he was charged with violating
two drunk-driving laws. Mitchell moved to suppress the results of
the blood test on the ground that it violated his Fourth Amendment
right against “unreasonable searches” because it was conducted
without a warrant. The trial court denied the motion, and Mitchell
was convicted. On certification from the intermediate appellate
court, the Wisconsin Supreme Court affirmed the lawfulness of
Mitchell’s blood test.
Held: The judgment is vacated, and the case is remanded.
2018 WI 84, 383 Wis. 2d 192, 914 N. W. 2d 151, vacated and remanded.
JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE BREYER, and
JUSTICE KAVANAUGH, concluded that when a driver is unconscious
and cannot be given a breath test, the exigent-circumstances doctrine
generally permits a blood test without a warrant. Pp. 5–17.
(a) BAC tests are Fourth Amendment searches. See Birchfield v.
North Dakota, 579 U. S. ___, ___. A warrant is normally required for
a lawful search, but there are well-defined exceptions to this rule, in-
cluding the “exigent circumstances” exception, which allows warrant-
2 MITCHELL v. WISCONSIN
Syllabus
less searches “to prevent the imminent destruction of evidence.” Mis-
souri v. McNeely, 569 U. S. 141, 149. In McNeely, this Court held
that the fleeting nature of blood-alcohol evidence alone was not
enough to bring BAC testing within the exigency exception. Id., at
156. But in Schmerber v. California, 384 U. S. 757, the dissipation of
BAC did justify a blood test of a drunk driver whose accident gave po-
lice other pressing duties, for then the further delay caused by a war-
rant application would indeed have threatened the destruction of ev-
idence. Like Schmerber, unconscious-driver cases will involve a
heightened degree of urgency for several reasons. And when the
driver’s stupor or unconsciousness deprives officials of a reasonable
opportunity to administer a breath test using evidence-grade equip-
ment, a blood test will be essential for achieving the goals of BAC
testing. Pp. 5–7.
(b) Under the exigent circumstances exception, a warrantless
search is allowed when “ ‘there is compelling need for official action
and no time to secure a warrant.’ ” McNeely, 569 U. S., at 149. Pp. 7–
16.
(1) There is clearly a “compelling need” for a blood test of drunk-
driving suspects whose condition deprives officials of a reasonable
opportunity to conduct a breath test. First, highway safety is a vital
public interest—a “compelling” and “paramount” interest, Mackey v.
Montrym, 443 U. S. 1, 17–18. Second, when it comes to promoting
that interest, federal and state lawmakers have long been convinced
that legal limits on a driver’s BAC make a big difference. And there
is good reason to think that such laws have worked. Birchfield, 579
U. S., at ___. Third, enforcing BAC limits obviously requires a test
that is accurate enough to stand up in court. Id., at ___. And such
testing must be prompt because it is “a biological certainty” that
“[a]lcohol dissipates from the bloodstream,” “literally disappearing by
the minute.” McNeely, 569 U. S., at 169 (ROBERTS, C. J., concurring).
Finally, when a breath test is unavailable to promote the interests
served by legal BAC limits, “a blood draw becomes necessary.” Id., at
170. Pp. 9–12.
(2) Schmerber demonstrates that an exigency exists when (1)
BAC evidence is dissipating and (2) some other factor creates press-
ing health, safety, or law enforcement needs that would take priority
over a warrant application. Because both conditions are met when a
drunk-driving suspect is unconscious, Schmerber controls. A driver’s
unconsciousness does not just create pressing needs; it is itself a med-
ical emergency. In such a case, as in Schmerber, an officer could
“reasonably have believed that he was confronted with an emergen-
cy.” 384 U. S., at 771. And in many unconscious-driver cases, the ex-
igency will be especially acute. A driver so drunk as to lose con-
Cite as: 588 U. S. ____ (2019) 3
Syllabus
sciousness is quite likely to crash, giving officers a slew of urgent
tasks beyond that of securing medical care for the suspect—tasks
that would require them to put off applying for a warrant. The time
needed to secure a warrant may have shrunk over the years, but it
has not disappeared; and forcing police to put off other urgent tasks
for even a relatively short period of time may have terrible collateral
costs. Pp. 12–16.
(c) On remand, Mitchell may attempt to show that his was an unu-
sual case, in which his blood would not have been drawn had police
not been seeking BAC information and police could not have reason-
ably judged that a warrant application would interfere with other
pressing needs or duties. Pp. 16–17.
JUSTICE THOMAS would apply a per se rule, under which the natural
metabolization of alcohol in the blood stream “creates an exigency
once police have probable cause to believe the driver is drunk,” re-
gardless of whether the driver is conscious. Missouri v. McNeely, 569
U. S. 141, 178 (THOMAS, J., dissenting). Pp. 1–4.
ALITO, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ.,
joined. THOMAS, J., filed an opinion concurring in the judgment. SO-
TOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN,
JJ., joined. GORSUCH, J., filed a dissenting opinion.
Cite as: 588 U. S. ____ (2019) 1
Opinion of ALITO, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE ALITO announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE,
JUSTICE BREYER, and JUSTICE KAVANAUGH join.
In this case, we return to a topic that we have addressed
twice in recent years: the circumstances under which a
police officer may administer a warrantless blood alcohol
concentration (BAC) test to a motorist who appears to
have been driving under the influence of alcohol. We have
previously addressed what officers may do in two broad
categories of cases. First, an officer may conduct a BAC
test if the facts of a particular case bring it within the
exigent-circumstances exception to the Fourth Amend-
ment’s general requirement of a warrant. Second, if an
officer has probable cause to arrest a motorist for drunk
driving, the officer may conduct a breath test (but not a
blood test) under the rule allowing warrantless searches of
a person incident to arrest.
Today, we consider what police officers may do in a
narrow but important category of cases: those in which the
driver is unconscious and therefore cannot be given a
breath test. In such cases, we hold, the exigent-
circumstances rule almost always permits a blood test
2 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
without a warrant. When a breath test is impossible,
enforcement of the drunk-driving laws depends upon the
administration of a blood test. And when a police officer
encounters an unconscious driver, it is very likely that the
driver would be taken to an emergency room and that his
blood would be drawn for diagnostic purposes even if the
police were not seeking BAC information. In addition,
police officers most frequently come upon unconscious
drivers when they report to the scene of an accident, and
under those circumstances, the officers’ many responsibili-
ties—such as attending to other injured drivers or passen-
gers and preventing further accidents—may be incompati-
ble with the procedures that would be required to obtain a
warrant. Thus, when a driver is unconscious, the general
rule is that a warrant is not needed.
I
A
In Birchfield v. North Dakota, 579 U. S. ___ (2016), we
recounted the country’s efforts over the years to address
the terrible problem of drunk driving. Today, “all States
have laws that prohibit motorists from driving with a
[BAC] that exceeds a specified level.” Id., at ___ (slip op.,
at 2). And to help enforce BAC limits, every State has
passed what are popularly called implied-consent laws.
Ibid. As “a condition of the privilege of ” using the public
roads, these laws require that drivers submit to BAC
testing “when there is sufficient reason to believe they are
violating the State’s drunk-driving laws.” Id., at ___, ___
(slip op., at 2, 6).
Wisconsin’s implied-consent law is much like those of
the other 49 States and the District of Columbia. It deems
drivers to have consented to breath or blood tests if an
officer has reason to believe they have committed one of
Cite as: 588 U. S. ____ (2019) 3
Opinion of ALITO, J.
several drug- or alcohol-related offenses.1 See Wis. Stat.
§§343.305(2), (3). Officers seeking to conduct a BAC test
must read aloud a statement declaring their intent to
administer the test and advising drivers of their options
and the implications of their choice. §343.305(4). If a
driver’s BAC level proves too high, his license will be
suspended; but if he refuses testing, his license will be
revoked and his refusal may be used against him in court.
See ibid. No test will be administered if a driver refuses—
or, as the State would put it, “withdraws” his statutorily
presumed consent. But “[a] person who is unconscious or
otherwise not capable of withdrawing consent is presumed
not to have” withdrawn it. §343.305(3)(b). See also
§§343.305(3)(ar)1–2. More than half the States have
provisions like this one regarding unconscious drivers.
B
The sequence of events that gave rise to this case began
when Officer Alexander Jaeger of the Sheboygan Police
Department received a report that petitioner Gerald
Mitchell, appearing to be very drunk, had climbed into a
van and driven off. Jaeger soon found Mitchell wandering
near a lake. Stumbling and slurring his words, Mitchell
could hardly stand without the support of two officers.
Jaeger judged a field sobriety test hopeless, if not danger-
ous, and gave Mitchell a preliminary breath test. It regis-
tered a BAC level of 0.24%, triple the legal limit for driv-
ing in Wisconsin. Jaeger arrested Mitchell for operating a
——————
1 Wisconsin also authorizes BAC testing of drivers involved in acci-
dents that cause significant bodily harm, with or without probable
cause of drunk driving. See Wis. Stat. §343.305(3)2 (2016). We do not
address those provisions. And while Wisconsin’s and other implied-
consent laws permit urine tests, those tests are less common, see
Birchfield v. North Dakota, 579 U. S. ___, ___, n. 1 (2016) (slip op., at 6,
n. 1), and we do not consider them here.
4 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
vehicle while intoxicated and, as is standard practice,
drove him to a police station for a more reliable breath test
using better equipment.
On the way, Mitchell’s condition continued to deterio-
rate—so much so that by the time the squad car had
reached the station, he was too lethargic even for a breath
test. Jaeger therefore drove Mitchell to a nearby hospital
for a blood test; Mitchell lost consciousness on the ride
over and had to be wheeled in. Even so, Jaeger read aloud
to a slumped Mitchell the standard statement giving
drivers a chance to refuse BAC testing. Hearing no re-
sponse, Jaeger asked hospital staff to draw a blood sam-
ple. Mitchell remained unconscious while the sample was
taken, and analysis of his blood showed that his BAC,
about 90 minutes after his arrest, was 0.222%.
Mitchell was charged with violating two related drunk-
driving provisions. See §§346.63(1)(a), (b). He moved to
suppress the results of the blood test on the ground that it
violated his Fourth Amendment right against “unreason-
able searches” because it was conducted without a warrant.
Wisconsin chose to rest its response on the notion that its
implied-consent law (together with Mitchell’s free choice to
drive on its highways) rendered the blood test a consensual
one, thus curing any Fourth Amendment problem. In the
end, the trial court denied Mitchell’s motion to suppress,
and a jury found him guilty of the charged offenses. The
intermediate appellate court certified two questions to the
Wisconsin Supreme Court: first, whether compliance with
the State’s implied-consent law was sufficient to show that
Mitchell’s test was consistent with the Fourth Amendment
and, second, whether a warrantless blood draw from an
unconscious person violates the Fourth Amendment. See
2018 WI 84, ¶15, 383 Wis. 2d 192, 202–203, 914 N. W. 2d
151, 155–156 (2018). The Wisconsin Supreme Court
affirmed Mitchell’s convictions, and we granted certiorari,
586 U. S. ___ (2019), to decide “[w]hether a statute author-
Cite as: 588 U. S. ____ (2019) 5
Opinion of ALITO, J.
izing a blood draw from an unconscious motorist provides
an exception to the Fourth Amendment warrant require-
ment,” Pet. for Cert. ii.
II
In considering Wisconsin’s implied-consent law, we do
not write on a blank slate. “Our prior opinions have re-
ferred approvingly to the general concept of implied-
consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply.” Birch-
field, 579 U. S., at ___ (slip op., at 36). But our decisions
have not rested on the idea that these laws do what their
popular name might seem to suggest—that is, create
actual consent to all the searches they authorize. Instead,
we have based our decisions on the precedent regarding
the specific constitutional claims in each case, while keep-
ing in mind the wider regulatory scheme developed over
the years to combat drunk driving. That scheme is cen-
tered on legally specified BAC limits for drivers—limits
enforced by the BAC tests promoted by implied-consent
laws.
Over the last 50 years, we have approved many of the
defining elements of this scheme. We have held that
forcing drunk-driving suspects to undergo a blood test
does not violate their constitutional right against self-
incrimination. See Schmerber v. California, 384 U. S. 757,
765 (1966). Nor does using their refusal against them in
court. See South Dakota v. Neville, 459 U. S. 553, 563
(1983). And punishing that refusal with automatic license
revocation does not violate drivers’ due process rights if
they have been arrested upon probable cause, Mackey v.
Montrym, 443 U. S. 1 (1979); on the contrary, this kind of
summary penalty is “unquestionably legitimate.” Neville,
supra, at 560.
These cases generally concerned the Fifth and Four-
teenth Amendments, but motorists charged with drunk
6 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
driving have also invoked the Fourth Amendment’s ban on
“unreasonable searches” since BAC tests are “searches.”
See Birchfield, 579 U. S., at ___ (slip op., at 14). Though
our precedent normally requires a warrant for a lawful
search, there are well-defined exceptions to this rule. In
Birchfield, we applied precedent on the “search-incident-
to-arrest” exception to BAC testing of conscious drunk-
driving suspects. We held that their drunk-driving ar-
rests, taken alone, justify warrantless breath tests but not
blood tests, since breath tests are less intrusive, just as
informative, and (in the case of conscious suspects) readily
available. Id., at ___ (slip op., at 35).
We have also reviewed BAC tests under the “exigent
circumstances” exception—which, as noted, allows war-
rantless searches “to prevent the imminent destruction of
evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013).
In McNeely, we were asked if this exception covers BAC
testing of drunk-driving suspects in light of the fact that
blood-alcohol evidence is always dissipating due to “natu-
ral metabolic processes.” Id., at 152. We answered that
the fleeting quality of BAC evidence alone is not enough.
Id., at 156. But in Schmerber it did justify a blood test of
a drunk driver who had gotten into a car accident that
gave police other pressing duties, for then the “further
delay” caused by a warrant application really “would have
threatened the destruction of evidence.” McNeely, supra,
at 152 (emphasis added).
Like Schmerber, this case sits much higher than
McNeely on the exigency spectrum. McNeely was about
the minimum degree of urgency common to all drunk-
driving cases. In Schmerber, a car accident heightened
that urgency. And here Mitchell’s medical condition did
just the same.
Mitchell’s stupor and eventual unconsciousness also
deprived officials of a reasonable opportunity to adminis-
ter a breath test. To be sure, Officer Jaeger managed to
Cite as: 588 U. S. ____ (2019) 7
Opinion of ALITO, J.
conduct “a preliminary breath test” using a portable ma-
chine when he first encountered Mitchell at the lake. App.
to Pet. for Cert. 60a. But he had no reasonable opportunity
to give Mitchell a breath test using “evidence-grade breath
testing machinery.” Birchfield, 579 U. S., at ___
(SOTOMAYOR, J., concurring in part and dissenting in part)
(slip op., at 10). As a result, it was reasonable for Jaeger
to seek a better breath test at the station; he acted with
reasonable dispatch to procure one; and when Mitchell’s
condition got in the way, it was reasonable for Jaeger to
pursue a blood test. As JUSTICE SOTOMAYOR explained in
her partial dissent in Birchfield:
“There is a common misconception that breath tests
are conducted roadside, immediately after a driver is
arrested. While some preliminary testing is conducted
roadside, reliability concerns with roadside tests con-
fine their use in most circumstances to establishing
probable cause for an arrest. . . . The standard eviden-
tiary breath test is conducted after a motorist is ar-
rested and transported to a police station, governmen-
tal building, or mobile testing facility where officers
can access reliable, evidence-grade breath testing ma-
chinery.” Id., at ___ (slip op., at 10).
Because the “standard evidentiary breath test is conducted
after a motorist is arrested and transported to a police
station” or another appropriate facility, ibid., the im-
portant question here is what officers may do when a
driver’s unconsciousness (or stupor) eliminates any rea-
sonable opportunity for that kind of breath test.
III
The Fourth Amendment guards the “right of the people
to be secure in their persons . . . against unreasonable
searches” and provides that “no Warrants shall issue, but
upon probable cause.” A blood draw is a search of the
8 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
person, so we must determine if its administration here
without a warrant was reasonable. See Birchfield, 579
U. S. at ___ (slip op., at 14). Though we have held that a
warrant is normally required, we have also “made it clear
that there are exceptions to the warrant requirement.”
Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under
the exception for exigent circumstances, a warrantless
search is allowed when “ ‘there is compelling need for
official action and no time to secure a warrant.’ ” McNeely,
supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499,
509 (1978)). In McNeely, we considered how the exigent-
circumstances exception applies to the broad category of
cases in which a police officer has probable cause to be-
lieve that a motorist was driving under the influence of
alcohol, and we do not revisit that question. Nor do we
settle whether the exigent-circumstances exception covers
the specific facts of this case.2 Instead, we address how
——————
2 JUSTICE SOTOMAYOR’s dissent argues that Wisconsin waived the
argument that we now adopt, but the dissent paints a misleading
picture of both the proceedings below and the ground for our decision.
First, as to the proceedings below, the dissent contends that the sole
question certified to the Wisconsin Supreme Court was “ ‘whether the
warrantless blood draw of an unconscious motorist pursuant to Wiscon-
sin’s implied consent law, where no exigent circumstances exist or have
been argued, violates the Fourth Amendment.’ ” Post, at 3 (quoting
App. 61). That is indeed how the intermediate appellate court under-
stood the issue in the case, but the State Supreme Court took a broader
view, as was its right. It regarded the appeal as presenting two ques-
tions, one of which was “whether a warrantless blood draw from an
unconscious person pursuant to Wis. Stat. §343.305(3)(b) violates the
Fourth Amendment.” See 383 Wis. 2d 192, 202–203, 914 N. W. 2d
151,155–156 (2018). This broad question easily encompasses the
rationale that we adopt today.
Second, after noting that the State did not attempt below to make a
case-specific showing of exigent circumstances, the dissent claims that
our decision is based on this very ground. But that is not at all the
basis for our decision. We do not hold that the State established that
the facts of this particular case involve exigent circumstances under
Cite as: 588 U. S. ____ (2019) 9
Opinion of ALITO, J.
the exception bears on the category of cases encompassed
by the question on which we granted certiorari—those
involving unconscious drivers.3 In those cases, the need
for a blood test is compelling, and an officer’s duty to
attend to more pressing needs may leave no time to seek a
warrant.
A
The importance of the needs served by BAC testing is
hard to overstate. The bottom line is that BAC tests are
needed for enforcing laws that save lives. The specifics, in
short, are these: Highway safety is critical; it is served by
laws that criminalize driving with a certain BAC level;
——————
McNeely. Rather, we adopt a rule for an entire category of cases—
those in which a motorist believed to have driven under the influence of
alcohol is unconscious and thus cannot be given a breath test. This rule
is not based on what happened in petitioner’s particular case but on the
circumstances generally present in cases that fall within the scope of
the rule. Those are just the sorts of features of unconscious-driver
cases that Wisconsin brought to our attention, see Brief for Respondent
54–55; Tr. of Oral Arg. at 32–34, 48–51, which petitioner addressed, see
Reply Brief at 14–15; Tr. of Oral Arg. at 15–20, 23–24, 29–31, 63–66.
So it is entirely proper for us to decide the case on this ground. See
Thigpen v. Roberts, 468 U. S. 27, 29–30 (1984).
3 While our exigent-circumstances precedent requires a “ ‘totality of
the circumstances’ ” analysis, “the circumstances in drunk driving cases
are often typical, and the Court should be able to offer guidance on how
police should handle cases like the one before us.” McNeely, 569 U. S.,
at 166 (ROBERTS, C. J., concurring in part and dissenting in part).
Indeed, our exigency case law is full of general rules providing such
guidance. Thus, we allow police to proceed without a warrant when an
occupant of a home requires “emergency assistance,” Brigham City v.
Stuart, 547 U. S. 398, 403 (2006); when a building is on fire,
see Michigan v. Tyler, 436 U. S. 499, 509 (1978); and when an armed
robber has just entered a home, see United States v. Santana, 427 U. S.
38 (1976). “In each of these cases, the requirement that we base our
decision on the ‘totality of the circumstances’ has not prevented us from
spelling out a general rule for the police to follow.” McNeely, supra, at
168 (opinion of ROBERTS, C. J.). Neither does it prevent us here.
10 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
and enforcing these legal BAC limits requires efficient
testing to obtain BAC evidence, which naturally dissi-
pates. So BAC tests are crucial links in a chain on which
vital interests hang. And when a breath test is unavail-
able to advance those aims, a blood test becomes essential.
Here we add a word about each of these points.
First, highway safety is a vital public interest. For
decades, we have strained our vocal chords to give ade-
quate expression to the stakes. We have called highway
safety a “compelling interest,” Mackey, 443 U. S., at 19; we
have called it “paramount,” id., at 17. Twice we have
referred to the effects of irresponsible driving as “slaugh-
ter” comparable to the ravages of war. Breithaupt v.
Abram, 352 U. S. 432, 439 (1957); Perez v. Campbell, 402
U. S. 637, 657, 672 (1971) (Blackmun, J., concurring in
result in part and dissenting in part). We have spoken of
“carnage,” Neville, 459 U. S., at 558–559, and even “fright-
ful carnage,” Tate v. Short, 401 U. S. 395, 401 (1971)
(Blackmun, J., concurring). The frequency of preventable
collisions, we have said, is “tragic,” Neville, supra, at 558,
and “astounding,” Breithaupt, supra, at 439. And behind
this fervent language lie chilling figures, all captured in
the fact that from 1982 to 2016, alcohol-related accidents
took roughly 10,000 to 20,000 lives in this Nation every
single year. See National Highway Traffic Safety Admin.
(NHTSA), Traffic Safety Facts 2016, p. 40 (May 2018). In
the best years, that would add up to more than one fatality
per hour.
Second, when it comes to fighting these harms and
promoting highway safety, federal and state lawmakers
have long been convinced that specified BAC limits make
a big difference. States resorted to these limits when
earlier laws that included no “statistical definition of
intoxication” proved ineffectual or hard to enforce. See
Birchfield, 579 U. S., at ___–___ (slip op., at 2–3). The
maximum permissible BAC, initially set at 0.15%, was
Cite as: 588 U. S. ____ (2019) 11
Opinion of ALITO, J.
first lowered to 0.10% and then to 0.08%. Id., at ___, ___–
___ (slip op., at 3, 6–7). Congress encouraged this process
by conditioning the award of federal highway funds on the
establishment of a BAC limit of 0.08%, see 23 U. S. C.
§163(a); 23 CFR §1225.1 (2012), and every State has
adopted this limit.4 Not only that, many States, including
Wisconsin, have passed laws imposing increased penalties
for recidivists or for drivers with a BAC level that exceeds
a higher threshold. See Wis. Stat. §346.65(2)(am); Birch-
field, 579 U. S., at ___ (slip op., at 7).
There is good reason to think this strategy has worked.
As we noted in Birchfield, these tougher measures corre-
sponded with a dramatic drop in highway deaths and
injuries: From the mid-1970’s to the mid-1980’s, “the
number of annual fatalities averaged 25,000; by 2014 . . . ,
the number had fallen to below 10,000.” Id., at ___ (slip
op., at 6).
Third, enforcing BAC limits obviously requires a test
that is accurate enough to stand up in court, id., at ___–
___ (slip op., at 3–5); see also McNeely, 569 U. S., at 159–
160 (plurality opinion). And we have recognized that
“[e]xtraction of blood samples for testing is a highly effec-
tive means of ” measuring “the influence of alcohol.”
Schmerber, 384 U. S., at 771.
Enforcement of BAC limits also requires prompt testing
because it is “a biological certainty” that “[a]lcohol dissi-
pates from the bloodstream at a rate of 0.01 percent to
0.025 percent per hour. . . . Evidence is literally disappear-
ing by the minute.” McNeely, 569 U. S., at 169 (opinion of
ROBERTS, C. J.). As noted, the ephemeral nature of BAC
was “essential to our holding in Schmerber,” which itself
allowed a warrantless blood test for BAC. Id., at 152
——————
4 See NHTSA, Alcohol and Highway Safety: A Review of the State of
Knowledge 167 (DOT HS 811 374, Mar. 2011).
12 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
(opinion of the Court). And even when we later held that
the exigent-circumstances exception would not permit a
warrantless blood draw in every drunk-driving case, we
acknowledged that delays in BAC testing can “raise ques-
tions about . . . accuracy.” Id., at 156.
It is no wonder, then, that the implied-consent laws that
incentivize prompt BAC testing have been with us for 65
years and now exist in all 50 States. Birchfield, supra, at
___ (slip op., at 6). These laws and the BAC tests they
require are tightly linked to a regulatory scheme that
serves the most pressing of interests.
Finally, when a breath test is unavailable to promote
those interests, “a blood draw becomes necessary.”
McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.).
Thus, in the case of unconscious drivers, who cannot blow
into a breathalyzer, blood tests are essential for achieving
the compelling interests described above.
Indeed, not only is the link to pressing interests here
tighter; the interests themselves are greater: Drivers who
are drunk enough to pass out at the wheel or soon after-
ward pose a much greater risk. It would be perverse if the
more wanton behavior were rewarded—if the more har-
rowing threat were harder to punish.
For these reasons, there clearly is a “compelling need”
for a blood test of drunk-driving suspects whose condition
deprives officials of a reasonable opportunity to conduct a
breath test. Id., at 149 (opinion of the Court) (internal
quotation marks omitted). The only question left, under
our exigency doctrine, is whether this compelling need
justifies a warrantless search because there is, further-
more, “ ‘no time to secure a warrant.’ ” Ibid.B
We held that there was no time to secure a warrant
before a blood test of a drunk-driving suspect in
Schmerber because the officer there could “reasonably
Cite as: 588 U. S. ____ (2019) 13
Opinion of ALITO, J.
have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under
the circumstances, threatened the destruction of evi-
dence.” 384 U. S., at 770 (internal quotation marks omit-
ted). So even if the constant dissipation of BAC evidence
alone does not create an exigency, see McNeely, supra, at
150–151, Schmerber shows that it does so when combined
with other pressing needs:
“We are told that [1] the percentage of alcohol in the
blood begins to diminish shortly after drinking stops,
as the body functions to eliminate it from the system.
Particularly in a case such as this, where [2] time
had to be taken to bring the accused to a hospital and
to investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant.
Given these special facts, we conclude that the at-
tempt to secure evidence of blood-alcohol content in
this case [without a warrant] was . . . appropriate
. . . .” 384 U. S., at 770–771.
Thus, exigency exists when (1) BAC evidence is dissipat-
ing and (2) some other factor creates pressing health,
safety, or law enforcement needs that would take priority
over a warrant application. Both conditions are met when
a drunk-driving suspect is unconscious, so Schmerber
controls: With such suspects, too, a warrantless blood
draw is lawful.
1
In Schmerber, the extra factor giving rise to urgent
needs that would only add to the delay caused by a war-
rant application was a car accident; here it is the driver’s
unconsciousness. Indeed, unconsciousness does not just
14 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
create pressing needs; it is itself a medical emergency.5 It
means that the suspect will have to be rushed to the hos-
pital or similar facility not just for the blood test itself but
for urgent medical care.6 Police can reasonably anticipate
that such a driver might require monitoring, positioning,
and support on the way to the hospital;7 that his blood
may be drawn anyway, for diagnostic purposes, immedi-
ately on arrival;8 and that immediate medical treatment
could delay (or otherwise distort the results of) a blood
draw conducted later, upon receipt of a warrant, thus
reducing its evidentiary value. See McNeely, supra, at 156(plurality opinion). All of that sets this case apart from
——————
5 See National Institutes of Health, U. S. National Library of Medi-
cine, MedlinePlus, Unconsciousness (June 3, 2019), https://medlineplus.
gov/ency/article/000022.htm (all Internet materials as last visited June
25, 2019).
6 Limmer et al., Emergency Care 598 (13th ed. 2016).
7 See id., at 593–594.
8 See J. Kwasnoski, G. Partridge, & J. Stephen, Officer’s DUI Hand-
book 142 (6th ed. 2013) (“[M]ost hospitals routinely withdraw blood
from the driver immediately upon admittance”); see also E. Mitchell &
R. Medzon, Introduction to Emergency Medicine 269 (2005) (“Serum
glucose and blood alcohol concentrations are two pieces of information
that are of paramount importance when an apparently intoxicated
patient arrives at the [emergency room]”); Mayo Clinic, Alcohol Poison-
ing: Diagnosis & Treatment (2019), https://www.mayoclinic.org/
diseases-conditions/alcohol-poisoning/diagnosis-treatment/drc-20354392.
In this respect, the case for allowing a blood draw is stronger here than
in Schmerber v. California, 384 U. S. 757 (1966). In the latter, it gave
us pause that blood draws involve piercing a person’s skin. See id., at
762, 770. But since unconscious suspects will often have their skin
pierced and blood drawn for diagnostic purposes, allowing law enforce-
ment to use blood taken from that initial piercing would not increase
the bodily intrusion. In fact, dispensing with the warrant rule could
lessen the intrusion. It could enable authorities to use blood obtained
by hospital staff when the suspect is admitted rather than having to
wait to hear back about a warrant and then order what might be a
second blood draw.
Cite as: 588 U. S. ____ (2019) 15
Opinion of ALITO, J.
the uncomplicated drunk-driving scenarios addressed in
McNeely. Just as the ramifications of a car accident
pushed Schmerber over the line into exigency, so does the
condition of an unconscious driver bring his blood draw
under the exception. In such a case, as in Schmerber, an
officer could “reasonably have believed that he was con-
fronted with an emergency.” 384 U. S., at 770.
Indeed, in many unconscious-driver cases, the exigency
will be more acute, as elaborated in the briefing and ar-
gument in this case. A driver so drunk as to lose con-
sciousness is quite likely to crash, especially if he passes
out before managing to park. And then the accident might
give officers a slew of urgent tasks beyond that of securing
(and working around) medical care for the suspect. Police
may have to ensure that others who are injured receive
prompt medical attention; they may have to provide first
aid themselves until medical personnel arrive at the scene.
In some cases, they may have to deal with fatalities. They
may have to preserve evidence at the scene and block or
redirect traffic to prevent further accidents. These press-
ing matters, too, would require responsible officers to put
off applying for a warrant, and that would only exacerbate
the delay—and imprecision—of any subsequent BAC test.
In sum, all these rival priorities would put officers, who
must often engage in a form of triage, to a dilemma. It
would force them to choose between prioritizing a warrant
application, to the detriment of critical health and safety
needs, and delaying the warrant application, and thus the
BAC test, to the detriment of its evidentiary value and all
the compelling interests served by BAC limits. This is just
the kind of scenario for which the exigency rule was
born—just the kind of grim dilemma it lives to dissolve.
2
Mitchell objects that a warrantless search is unneces-
sary in cases involving unconscious drivers because war-
16 MITCHELL v. WISCONSIN
Opinion of ALITO, J.
rants these days can be obtained faster and more easily.
But even in our age of rapid communication,
“[w]arrants inevitably take some time for police offic-
ers or prosecutors to complete and for magistrate
judges to review. Telephonic and electronic warrants
may still require officers to follow time-consuming
formalities designed to create an adequate record,
such as preparing a duplicate warrant before calling
the magistrate judge. . . . And improvements in com-
munications technology do not guarantee that a mag-
istrate judge will be available when an officer needs a
warrant after making a late-night arrest.” McNeely,
569 U. S., at 155.
In other words, with better technology, the time required
has shrunk, but it has not disappeared. In the emergency
scenarios created by unconscious drivers, forcing police to
put off other tasks for even a relatively short period of
time may have terrible collateral costs. That is just what
it means for these situations to be emergencies.
IV
When police have probable cause to believe a person has
committed a drunk-driving offense and the driver’s uncon-
sciousness or stupor requires him to be taken to the hospi-
tal or similar facility before police have a reasonable op-
portunity to administer a standard evidentiary breath
test, they may almost always order a warrantless blood
test to measure the driver’s BAC without offending the
Fourth Amendment. We do not rule out the possibility
that in an unusual case a defendant would be able to show
that his blood would not have been drawn if police had not
been seeking BAC information, and that police could not
have reasonably judged that a warrant application would
interfere with other pressing needs or duties. Because
Mitchell did not have a chance to attempt to make that
Cite as: 588 U. S. ____ (2019) 17
Opinion of ALITO, J.
showing, a remand for that purpose is necessary.
* * *
The judgment of the Supreme Court of Wisconsin is
vacated, and the case is remanded for further proceedings.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE THOMAS, concurring in the judgment.
Today, the plurality adopts a difficult-to-administer
rule: Exigent circumstances are generally present when
police encounter a person suspected of drunk driving—
except when they aren’t. Compare ante, at 13, with ante,
at 16. The plurality’s presumption will rarely be rebutted,
but it will nevertheless burden both officers and courts
who must attempt to apply it. “The better (and far sim-
pler) way to resolve” this case is to apply “the per se rule” I
proposed in Missouri v. McNeely, 569 U. S. 141 (2013)
(dissenting opinion). Birchfield v. North Dakota, 579 U. S.
___, ___ (2016) (THOMAS, J., concurring in judgment in
part and dissenting in part) (slip op., at 3). Under that
rule, the natural metabolization of alcohol in the blood
stream “ ‘creates an exigency once police have probable
cause to believe the driver is drunk,’ ” regardless of whether
the driver is conscious. Id., at ___ (slip op., at 4). Be-
cause I am of the view that the Wisconsin Supreme Court
should apply that rule on remand, I concur only in the
judgment.
I
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated.” Although the Fourth Amendment does
2 MITCHELL v. WISCONSIN
THOMAS, J., concurring in judgment
not, by its text, require that searches be supported by a
warrant, see Groh v. Ramirez, 540 U. S. 551, 571–573
(2004) (THOMAS, J., dissenting), “this Court has inferred
that a warrant must generally be secured” for a search to
comply with the Fourth Amendment, Kentucky v. King,
563 U. S. 452, 459 (2011). We have also recognized, how-
ever, that this warrant presumption “may be overcome in
some circumstances because ‘[t]he ultimate touchstone of
the Fourth Amendment is “reasonableness.” ’ ” Ibid.Accordingly, we have held that “the warrant requirement
is subject to certain reasonable exceptions.” Ibid.In recent years, this Court has twice considered whether
warrantless blood draws fall within an exception to the
warrant requirement. First, in McNeely, a divided court
held that the natural metabolization of alcohol in the
bloodstream does not present a per se exigency that justi-
fies an exception to the Fourth Amendment’s warrant
requirement. 569 U. S., at 145. Then, in Birchfield, we
held that blood draws may not be administered as a
search incident to a lawful arrest for drunk driving. 579
U. S., at ___ (slip op., at 35). The question we face in this
case is whether the blood draw here fell within one of the
“reasonable exceptions” to the warrant requirement.
II
The “exigent circumstances” exception applies when
“the needs of law enforcement [are] so compelling that [a]
warrantless search is objectively reasonable under the
Fourth Amendment.” King, 563 U. S., at 460 (internal
quotation marks omitted). Applying this doctrine, the
Court has held that officers may conduct a warrantless
search when failure to act would result in “the imminent
destruction of evidence.” Ibid. (internal quotation marks
omitted).
As I have explained before, “the imminent destruction of
evidence” is a risk in every drunk-driving arrest and thus
Cite as: 588 U. S. ____ (2019) 3
THOMAS, J., concurring in judgment
“implicates the exigent-circumstances doctrine.” McNeely,
569 U. S., at 178. “Once police arrest a suspect for drunk
driving, each passing minute eliminates probative evi-
dence of the crime” as alcohol dissipates from the blood-
stream. Id., at 177. In many States, this “rapid destruc-
tion of evidence,” id., at 178, is particularly problematic
because the penalty for drunk driving depends in part on
the driver’s blood alcohol concentration, see ante, at 11.
Because the provisions of Wisconsin law at issue here
allow blood draws only when the driver is suspected of
impaired driving, ante, at 2–3, they fit easily within the
exigency exception to the warrant requirement.
Instead of adopting this straightforward rule, the plu-
rality makes a flawed distinction between ordinary drunk-
driving cases in which blood alcohol concentration evi-
dence “is dissipating” and those that also include “some
other [pressing] factor.” Ante, at 6, 13, 16. But whether
“some other factor creates pressing health, safety, or law-
enforcement needs that would take priority over a warrant
application” is irrelevant. Ante, at 13. When police have
probable cause to conclude that an individual was driving
drunk, probative evidence is dissipating by the minute.
And that evidence dissipates regardless of whether police
had another reason to draw the driver’s blood or whether
“a warrant application would interfere with other pressing
needs or duties.” Ante, at 16. The destruction of evidence
alone is sufficient to justify a warrantless search based on
exigent circumstances. See generally McNeely, 569 U. S.,
at 176–179 (opinion of THOMAS, J.).
Presumably, the plurality draws these lines to avoid
overturning McNeely. See id., at 156 (majority opinion)
(holding that “the natural dissipation of alcohol in the
blood” does not “categorically” support a finding of exi-
gency). But McNeely was wrongly decided, see id., at 176–183
(opinion of THOMAS, J.), and our decision in Birchfield has
already undermined its rationale. Specifically, the Court
4 MITCHELL v. WISCONSIN
THOMAS, J., concurring in judgment
determined in McNeely that “[t]he context of blood testing
is different in critical respects from other destruction-of-
evidence cases in which the police are truly confronted
with a now or never situation.” 569 U. S., at 153 (majority
opinion) (internal quotation marks omitted). But the
Court stated in Birchfield that a distinction between “an
arrestee’s active destruction of evidence and the loss of
evidence due to a natural process makes little sense.” 579
U. S., at ___ (slip op., at 31); see also ante, at 11–12.
Moreover, to the extent McNeely was grounded in the
belief that a per se rule was inconsistent with the “case by
case,” “totality of the circumstances” analysis ordinarily
applied in exigent-circumstances cases, see 569 U. S., at
156, that rationale was suspect from the start. That the
exigent-circumstances exception might ordinarily require
“an evaluation of the particular facts of each case,” Birch-
field, supra, at ___ (slip op., at 32), does not foreclose us
from recognizing that a certain, dispositive fact is always
present in some categories of cases. In other words, ac-
knowledging that destruction of evidence is at issue in
every drunk-driving case does not undermine the general
totality-of-the-circumstances approach that McNeely and
Birchfield endorsed. Cf. ante, at 9, n. 3.
* * *
The Court has consistently held that police officers may
perform searches without a warrant when destruction of
evidence is a risk. United States v. Banks, 540 U. S. 31, 38
(2003); Richards v. Wisconsin, 520 U. S. 385, 395 (1997);
Cupp v. Murphy, 412 U. S. 291, 295–296 (1973);
Schmerber v. California, 384 U. S. 757, 770–772 (1966).
The rule should be no different in drunk-driving cases.
Because the plurality instead adopts a rule more likely to
confuse than clarify, I concur only in the judgment.
Cite as: 588 U. S. ____ (2019) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, dissenting.
The plurality’s decision rests on the false premise that
today’s holding is necessary to spare law enforcement from
a choice between attending to emergency situations and
securing evidence used to enforce state drunk-driving
laws. Not so. To be sure, drunk driving poses significant
dangers that Wisconsin and other States must be able to
curb. But the question here is narrow: What must police
do before ordering a blood draw of a person suspected of
drunk driving who has become unconscious? Under the
Fourth Amendment, the answer is clear: If there is time,
get a warrant.
The State of Wisconsin conceded in the state courts that
it had time to get a warrant to draw Gerald Mitchell’s
blood, and that should be the end of the matter. Because
the plurality needlessly casts aside the established protec-
tions of the warrant requirement in favor of a brand new
presumption of exigent circumstances that Wisconsin does
not urge, that the state courts did not consider, and that
contravenes this Court’s precedent, I respectfully dissent.
I
In May 2013, Wisconsin police received a report that
Gerald Mitchell, seemingly intoxicated, had driven away
from his apartment building. A police officer later found
2 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
Mitchell walking near a lake, slurring his speech and
walking with difficulty. His van was parked nearby. The
officer administered a preliminary breath test, which
revealed a blood-alcohol concentration (BAC) of 0.24%.
The officer arrested Mitchell for operating a vehicle while
intoxicated.
Once at the police station, the officer placed Mitchell in
a holding cell, where Mitchell began to drift into either
sleep or unconsciousness. At that point, the officer decided
against administering a more definitive breath test and
instead took Mitchell to the hospital for a blood test.
Mitchell became fully unconscious on the way. At the
hospital, the officer read Mitchell a notice, required by
Wisconsin’s so-called “implied consent” law, which gave
him the opportunity to refuse BAC testing. See Wis. Stat.
§343.305 (2016). But Mitchell was too incapacitated to
respond. The officer then asked the hospital to test Mitch-
ell’s blood. Mitchell’s blood was drawn about 90 minutes
after his arrest, and the test revealed a BAC of 0.22%1 At
no point did the officer attempt to secure a warrant.
Mitchell was charged with violating two Wisconsin
drunk-driving laws. See §§346.63(1)(a), (b). He moved to
suppress the blood-test results, arguing that the warrant-
less blood draw was an unreasonable search under the
Fourth Amendment. In response, Wisconsin conceded
that exigent circumstances did not justify the warrantless
blood draw. As the State’s attorney told the trial court,
“There is nothing to suggest that this is a blood draw on
a[n] exigent circumstances situation when there has been
a concern for exigency. This is not that case.” App. 134.
——————
1 Although the Wisconsin Supreme Court referred to the lapse in time
between the arrest and the blood draw as lasting “approximately one
hour,” App. 11, the state appellate court explained that Mitchell was
arrested around 4:26 p.m. and that the blood draw took place at 5:59
p.m., id., at 63–64.
Cite as: 588 U. S. ____ (2019) 3
SOTOMAYOR, J., dissenting
Instead, Wisconsin argued that the warrantless blood
draw was lawful because of Wisconsin’s implied-consent
statute. Id., at 133.
The trial court denied Mitchell’s motion to suppress, and
a jury convicted him of the charged offenses. On appeal,
the State Court of Appeals noted that Wisconsin had
“expressly disclaimed that it was relying on exigent cir-
cumstances to justify the draw,” id., at 64, and that this
case offered a chance to clarify the law on implied consent
because the case “is not susceptible to resolution on the
ground of exigent circumstances,” id., at 66. The Court of
Appeals then certified the appeal to the Wisconsin Su-
preme Court, identifying the sole issue on appeal as
“whether the warrantless blood draw of an unconscious
motorist pursuant to Wisconsin’s implied consent law,
where no exigent circumstances exist or have been argued,
violates the Fourth Amendment.” Id., at 61.
On certification from the state appellate court, the
Supreme Court of Wisconsin upheld the search.2 The
Court granted certiorari to decide whether a statute like
Wisconsin’s, which allows police to draw blood from an
unconscious drunk-driving suspect, provides an exception
to the Fourth Amendment’s warrant requirement.
II
The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons . . . against unreason-
able searches and seizures.” When the aim of a search is
to uncover evidence of a crime, the Fourth Amendment
generally requires police to obtain a warrant. Vernonia
——————
2 The Wisconsin Supreme Court rephrased the certified question, but,
like the Court of Appeals, it recognized the State’s concession that the
exigency exception did not apply and, accordingly, did not consider the
issue in reaching its decision. See 2018 WI 84, ¶12, 383 Wis. 2d 192,
202, 914 N. W. 2d 151, 155.
4 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995).
The warrant requirement is not a mere formality; it
ensures that necessary judgment calls are made “ ‘by a
neutral and detached magistrate,’ ” not “ ‘by the officer
engaged in the often competitive enterprise of ferreting
out crime.’ ” Schmerber v. California, 384 U. S. 757, 770
(1966). A warrant thus serves as a check against searches
that violate the Fourth Amendment by ensuring that a
police officer is not made the sole interpreter of the Consti-
tution’s protections. Accordingly, a search conducted
without a warrant is “per se unreasonable under the
Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” Katz v. United
States, 389 U. S. 347, 357 (1967) (footnote omitted); see
Riley v. California, 573 U. S. 373, 382 (2014) (“In the
absence of a warrant, a search is reasonable only if it falls
within a specific exception to the warrant requirement”).
The carefully circumscribed exceptions to the warrant
requirement, as relevant here, include the exigent-
circumstances exception, which applies when “ ‘the exigen-
cies of the situation’ make the needs of law enforcement so
compelling that [a] warrantless search is objectively rea-
sonable,” Kentucky v. King, 563 U. S. 452, 460 (2011)
(some internal quotation marks omitted); the consent
exception for cases where voluntary consent is given to the
search, see, e.g., Georgia v. Randolph, 547 U. S. 103, 109
(2006); and the exception for “searches incident to arrest,”
see, e.g., Riley, 573 U. S., at 382.
A
Blood draws are “searches” under the Fourth Amend-
ment. The act of drawing a person’s blood, whether or not
he is unconscious, “involve[s] a compelled physical intru-
sion beneath [the] skin and into [a person’s] veins,” all for
the purpose of extracting evidence for a criminal investi-
gation. Missouri v. McNeely, 569 U. S. 141, 148 (2013).
Cite as: 588 U. S. ____ (2019) 5
SOTOMAYOR, J., dissenting
The blood draw also “places in the hands of law enforce-
ment authorities a sample that can be preserved and from
which it is possible to extract information beyond a simple
BAC reading,” Birchfield v. North Dakota, 579 U. S. ___,
___ (2016) (slip op., at 23), such as whether a person is
pregnant, is taking certain medications, or suffers from an
illness. That “invasion of bodily integrity” disturbs “an
individual’s ‘most personal and deep-rooted expectations of
privacy.’ ” McNeely, 569 U. S., at 148.
For decades, this Court has stayed true to the Fourth
Amendment’s warrant requirement and the narrowness of
its exceptions, even in the face of attempts categorically to
exempt blood testing from its protections. In Schmerber, a
man was hospitalized following a car accident. 384 U. S.,
at 758. At the scene of the accident and later at the hospi-
tal, a police officer noticed signs of intoxication, and he
arrested Schmerber for drunk driving. Id., at 768–769.
Without obtaining a warrant, the officer ordered a blood
draw to measure Schmerber’s BAC, and Schmerber later
challenged the blood test as an unreasonable search under
the Fourth Amendment. Id., at 758–759. The Court
reinforced that search warrants are “ordinarily required
. . . where intrusions into the human body are concerned,”
id., at 770, but it ultimately held that exigent circum-
stances justified the particular search at issue because
certain “special facts”—namely, an unusual delay caused
by the investigation at the scene and the subsequent
hospital trip—left the police with “no time to seek out a
magistrate and secure a warrant” before losing the evi-
dence. Id., at 770–771.
More recently, in McNeely, the Court held that blood
tests are not categorically exempt from the warrant re-
quirement, explaining that exigency “must be determined
case by case based on the totality of the circumstances.”
569 U. S., at 156. “[T]he natural dissipation of alcohol in
the blood may support a finding of exigency in a specific
6 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
case,” but “it does not do so categorically.” Ibid. If officers
“can reasonably obtain a warrant before a blood sample
can be drawn without significantly undermining the effi-
cacy of the search,” the Court made clear, “the Fourth
Amendment mandates that they do so.” Id., at 152; see
id., at 167 (ROBERTS, C. J., concurring in part and dissent-
ing in part) (“The natural dissipation of alcohol in the
bloodstream . . . would qualify as an exigent circumstance,
except that there may be time to secure a warrant before
blood can be drawn. If there is, an officer must seek a
warrant”).
In Birchfield, the Court rejected another attempt cate-
gorically to exempt blood draws from the warrant re-
quirement. 579 U. S., at ___ (slip op., at 33). The Court
considered whether warrantless breath and blood tests to
determine a person’s BAC level were permissible as
searches incident to arrest. The Court held that warrant-
less breath tests were permitted because they are insuffi-
ciently intrusive to outweigh the State’s need for BAC
testing. See ibid. As to blood tests, however, the Court
held the opposite: Because they are significantly more
intrusive than breath tests, the warrant requirement
applies unless particular exigent circumstances prevent
officers from obtaining a warrant. Ibid.; see id., at ___
(slip op., at 34) (“Nothing prevents the police from seeking
a warrant for a blood test when there is sufficient time to
do so in the particular circumstances or from relying on
the exigent circumstances exception . . . when there is
not”).3
——————
3 The Court in Birchfield concluded as much even while acknowledg-
ing that, in some cases, the suspect would be unconscious and thus
unable to perform a breath test. 579 U. S., at ___ (slip op., at 35) (“It is
true that a blood test, unlike a breath test, may be administered to a
person who is unconscious (perhaps as a result of a crash) or who is
unable to do what is needed to take a breath test due to profound
Cite as: 588 U. S. ____ (2019) 7
SOTOMAYOR, J., dissenting
B
Those cases resolve this one. Schmerber and McNeely
establish that there is no categorical exigency exception
for blood draws, although exigent circumstances might
justify a warrantless blood draw on the facts of a particu-
lar case. And from Birchfield, we know that warrantless
blood draws cannot be justified as searches incident to
arrest. The lesson is straightforward: Unless there is too
little time to do so, police officers must get a warrant
before ordering a blood draw. See 579 U. S., at ___ (slip
op., at 34); McNeely, 569 U. S., at 152.
Against this precedential backdrop, Wisconsin’s primary
argument has always been that Mitchell consented to the
blood draw through the State’s “implied-consent law.”
Under that statute, a motorist who drives on the State’s
roads is “deemed” to have consented to a blood draw,
breath test, and urine test, and that supposed consent
allows a warrantless blood draw from an unconscious
motorist as long as the police have probable cause to be-
lieve that the motorist has violated one of the State’s
impaired driving statutes. See Wis. Stat. §343.305.
The plurality does not rely on the consent exception
here. See ante, at 5. With that sliver of the plurality’s
reasoning I agree. I would go further and hold that the
state statute, however phrased, cannot itself create the
actual and informed consent that the Fourth Amendment
requires. See Randolph, 547 U. S., at 109 (describing the
“voluntary consent” exception to the warrant requirement
as “ ‘jealously and carefully drawn’ ”); Bumper v. North
Carolina, 391 U. S. 543, 548 (1968) (stating that consent
must be “freely and voluntarily given”); see also Schneck-
——————
intoxication or injuries. But we have no reason to believe that such
situations are common in drunk-driving arrests, and when they arise,
the police may apply for a warrant if need be”).
8 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
loth v. Bustamonte, 412 U. S. 218, 226–227 (1973) (ex-
plaining that the existence of consent must “be determined
from the totality of all the circumstances”). That should
be the end of this case.
III
Rather than simply applying this Court’s precedents to
address—and reject—Wisconsin’s implied-consent theory,
the plurality today takes the extraordinary step of relying
on an issue, exigency, that Wisconsin has affirmatively
waived.4 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 ex-
ception does not justify the warrantless blood draw in this
case. App. 66; see 2018 WI 84, ¶12, 383 Wis. 2d 192, 202,
914 N. W. 2d 151, 155 (“The State expressly stated that it
was not relying on exigent circumstances to justify the
blood draw”). Accordingly, the state courts proceeded on
the acknowledgment that no exigency is at issue here. As
the Wisconsin Court of Appeals put it:
“In particular, this case is not susceptible to resolu-
tion on the ground of exigent circumstances. No tes-
timony was received that would support the conclu-
——————
4 The plurality criticizes me for supposedly suggesting that today’s
decision is based on a “case-specific showing of exigent circumstances.”
Ante, at 8, n. 2. But I acknowledge that the plurality does not go so far
as to decide that exigent circumstances justify the search in Mitchell’s
case, perhaps because the facts here support no such conclusion. See
infra, at 16. Indeed, rather than confine itself to the facts and legal
issues actually presented in this case, the plurality instead creates a
new de facto categorical rule out of thin air. The plurality does so
without any evidence that such a rule is necessary in all, or even most,
cases. See infra, at 16–17. That the plurality reaches out to determine
the rights of all drivers, rather than just Mitchell, makes today’s
decision more misguided, not less.
Cite as: 588 U. S. ____ (2019) 9
SOTOMAYOR, J., dissenting
sion that exigent circumstances justified the warrant-
less blood draw. [The officer] expressed agnosticism
as to how long it would have taken to obtain a war-
rant, and he never once testified (or even implied)
that there was no time to get a warrant.” App. 66.
The exigency issue is therefore waived—that is, knowingly
and intentionally abandoned, see Wood v. Milyard, 566
U. S. 463, 474 (2012)—and the Court should not have
considered it. See, e.g., Heckler v. Campbell, 461 U. S.
458, 468, n. 12 (1983); cf. Alabama v. Shelton, 535 U. S.
654, 674 (2002) (“We confine our review to the ruling the
Alabama Supreme Court made in the case as presented
to it”).
Rather than hold Wisconsin to a concession from which
it has never wavered, the plurality takes on the waived
theory. As “ ‘a court of review, not of first view,’ ” however,
this Court is not in the business of volunteering new ra-
tionales neither raised nor addressed below, and even less
ones that no party has raised here. Timbs v. Indiana, 586
U. S. ___, ___ (2019) (slip op., at 8); see, e.g., Star Athletica,
L. L. C. v. Varsity Brands, Inc., 580 U. S. ___, ___ (2017)
(slip op., at 6); cf. Kentucky v. Stincer, 482 U. S. 730, 747–
748, n. 22 (1987) (declining to review a respondent’s previ-
ously unraised claim “[b]ecause the judgment [was] that of
a state court” and no “exceptional” circumstances were
present).
There are good reasons for this restraint. Ensuring that
an issue has been fully litigated allows the Court “the
benefit of developed arguments on both sides and lower
court opinions squarely addressing the question.” Yee v.
Escondido, 503 U. S. 519, 538 (1992). It also reflects a
central “ ‘premise of our adversarial system’ ”: Courts sit to
resolve disputes among the parties, not “ ‘as self-directed
boards of legal inquiry and research.’ ” Lebron v. National
Railroad Passenger Corporation, 513 U. S. 374, 408 (1995)
10 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
(O’Connor, J., dissenting) (quoting Carducci v. Regan, 714
F. 2d 171, 177 (CADC 1983) (Scalia, J.)).
These rules, in other words, beget more informed deci-
sionmaking by the Court and ensure greater fairness to
litigants, who cannot be expected to respond pre-emptively
to arguments that live only in the minds of the Justices.
Cf. Granite Rock Co. v. Teamsters, 561 U. S. 287, 306, and
n. 14 (2010); Yee, 503 U. S., at 535–536. These principles
should apply with greater force when the issues were not
merely forfeited but affirmatively “conceded” below, App.
66, and where, as here, the question is one of constitutional
dimension. The plurality acts recklessly in failing to
honor these fundamental principles here.5
IV
There are good reasons why Wisconsin never asked any
court to consider applying any version of the exigency
exception here: This Court’s precedents foreclose it. Ac-
——————
5 A related but distinct point: The issue on which the plurality re-
solves this case is not “fairly included” in the question on which the
Court granted certiorari. See this Court’s Rule 14.1(a). The Court
granted certiorari to answer “[w]hether a statute authorizing a blood
draw from an unconscious motorist provides an exception to the Fourth
Amendment warrant requirement.” Pet. for Cert. ii; accord, ante, at 4–
5. The answer to that question is no. Whether exigent circumstances
nevertheless require that the warrantless blood draw be upheld is an
independent issue. True, that issue might affect the same “category of
cases,” ante, at 8, n. 2, but that would be true of all sorts of matters not
fairly included in the question on which this Court granted certiorari.
“Both [issues] might be subsidiary to a question embracing both—[Was
suppression appropriate?]—but they exist side by side, neither encom-
passing the other.” Yee v. Escondido, 503 U. S. 519, 537 (1992). This
Court applies a “heavy presumption against” venturing beyond the
question presented, even when the parties ask it to do so. Ibid. Here,
of course, the plurality ventures forth to provide guidance entirely of its
own accord. One wonders why the Court asked for briefing and oral
argument at all.
Cite as: 588 U. S. ____ (2019) 11
SOTOMAYOR, J., dissenting
cording to the plurality, when the police attempt to obtain
a blood sample from a person suspected of drunk driving,
there will “almost always” be exigent circumstances if the
person falls unconscious. Ante, at 1. As this case demon-
strates, however, the fact that a suspect fell unconscious
at some point before the blood draw does not mean that
there was insufficient time to get a warrant. And if the
police have time to secure a warrant before the blood
draw, “the Fourth Amendment mandates that they do so.”
McNeely, 569 U. S., at 152. In discarding that rule for its
own, the plurality may not “revisit” McNeely, ante, at 8,
but the plurality does ignore it.
A
The exigent-circumstances exception to the Fourth
Amendment warrant requirement applies if the State can
demonstrate a “compelling need for official action and no
time to secure a warrant.” Michigan v. Tyler, 436 U. S.
499, 509 (1978); see also King, 563 U. S., at 460 (The
exception applies “when ‘the exigencies of the situation’
make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable” (some inter-
nal quotation marks omitted)). The Court has identified
exigencies when officers need to enter a home without a
warrant to provide assistance to a “seriously injured”
occupant or one facing an imminent threat of such injury,
Brigham City v. Stuart, 547 U. S. 398, 403 (2006); when
officers are in “hot pursuit” of a fleeing suspect, United
States v. Santana, 427 U. S. 38, 42–43 (1976); and when
officers need to enter a burning building to extinguish a
fire, Tyler, 436 U. S., at 509.
Blood draws implicate a different type of exigency. The
Court has “recognized that in some circumstances law
enforcement officers may conduct a search without a
warrant to prevent the imminent destruction of evidence.”
McNeely, 569 U. S., at 149. To determine whether exigent
12 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
circumstances justify a warrantless search, the Court
“looks to the totality of circumstances” in the particular
case. Ibid. “The critical point is that . . . the exigent
circumstances exception requires a court to examine
whether an emergency justified a warrantless search in
each particular case.” Riley, 573 U. S., at 402.
In McNeely, Missouri urged the Court to adopt a cate-
gorical rule that the natural dissipation of alcohol from a
person’s bloodstream will always create exigent circum-
stances that allow police officers to order a blood draw
without obtaining a warrant. 569 U. S., at 149–150. The
Court declined. Even though the gradual dissipation of a
person’s BAC means that “a significant delay in testing
will negatively affect the probative value” of a blood test,
eight Justices hewed to the traditional, “case-by-case
assessment of exigency,” given that police will at least in
some instances have time to get a warrant. Id., at 152; see
id., at 166–167 (opinion of ROBERTS, C. J.); id., at 175(“The majority answers ‘It depends,’ and so do I”).
In that way, cases involving blood draws are “different
in critical respects” from the typical destruction-of-
evidence case that presents police officers with a “ ‘ “now or
never” ’ ” situation. Id., at 153 (opinion of the Court).
Unlike situations in which “police are just outside the door
to a home” and “evidence is about to be destroyed, a per-
son is about to be injured, or a fire has broken out,” some
delay is inherent when officers seek a blood test regardless
of whether officers are required to obtain a warrant first.
Id., at 171 (opinion of ROBERTS, C. J.); see id., at 153(opinion of the Court). In the typical situation, the police
cannot test a person’s blood as soon as the person is ar-
rested; police officers do not draw blood roadside. Rather,
they generally must transport the drunk-driving suspect
to a hospital or other medical facility and wait for a medi-
cal professional to draw the blood. That built-in delay
may give police officers time to seek a warrant, especially
Cite as: 588 U. S. ____ (2019) 13
SOTOMAYOR, J., dissenting
if the suspect is brought to the hospital by an officer or
emergency-response professional other than the one who
applies for the warrant.
Moreover, although “the alcohol level in a person’s blood
begins to dissipate once the alcohol is fully absorbed, id.,
at 152, it does so “over time in a gradual and relatively
predictable manner,” id., at 153. Thus, even though BAC
evidence is of course critical for law enforcement purposes,
“the fact that the dissipation persists for some time means
that the police—although they may not be able to do any-
thing about it right away—may still be able to respond to
the ongoing destruction of evidence later on.” Id., at 172(opinion of ROBERTS, C. J.). For one, there may well be
time for police officers to get a warrant before a person’s
BAC drops significantly. See id., at 172–173. In addition,
assuming delays do not stretch so long as to cause accuracy
concerns, “experts can work backwards from the BAC at
the time the sample was taken to determine the BAC at
the time of the alleged offense.” Id., at 156 (opinion of the
Court). Contrary to the plurality’s fear mongering, in
other words, a small delay to obtain a warrant is hardly a
recipe for lawless roadways.
Meanwhile, as the Court has observed, significant tech-
nological advances have allowed for “more expeditious
processing of warrant applications.” Id., at 154; see Riley,
573 U. S., at 401. In the federal system, magistrate judges
can issue warrants based on sworn testimony communi-
cated over the phone or through “ ‘other reliable electronic
means.’ ” McNeely, 569 U. S., at 154 (quoting Fed. Rule
Crim. Proc. 4.1). In a sizable majority of States, police
officers can apply for warrants “remotely through various
means, including telephonic or radio communication,
electronic communication such as e-mail, and video con-
ferencing.” McNeely, 569 U. S., at 154; see ibid., n. 4
(collecting state statutes). And the use of “standard-form
warrant applications” has streamlined the warrant pro-
14 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
cess in many States as well, especially in this context. Id.,at 154–155. As a result, judges can often issue warrants
in 5 to 15 minutes. Id., at 173 (opinion of ROBERTS, C. J.).
Of course, securing a warrant will always take some time,
and that time will vary case to case. But “[t]here might
. . . be time to obtain a warrant in many cases.” Id., at
172. Thus, as McNeely made clear, the exigency exception
is appropriate only in those cases in which time is not on
the officer’s side.
B
The reasons the Court gave for rejecting a categorical
exigency exception in McNeely apply with full force when
the suspected drunk driver is (or becomes) unconscious.
In these cases, there is still a period of delay during
which a police officer might take steps to secure a war-
rant. Indeed, as the plurality observes, see ante, at 13–14,
that delay is guaranteed because an unconscious person
will need to be transported to the hospital for medical
attention. Such a delay occurred in Mitchell’s case, even
more so than it did in McNeely’s. See McNeely, 569 U. S.,
at 145–146 (explaining that the police officer transported
McNeely first to the police station and then to the hospital
for blood testing, taking approximately 25 minutes); App.
63–64 (explaining that the police officer arrested Mitchell,
drove him to the police station, placed him in a holding
cell, and then transported him to the hospital and ob-
tained a blood sample over the course of 90 minutes).
Likewise, an unconscious person’s BAC dissipates just
as gradually and predictably as a conscious person’s does.
Furthermore, because unconsciousness is more likely to
occur at higher BACs, see Martin, Measuring Acute Alco-
hol Impairment, in Forensic Issues in Alcohol Testing 1, 8
(S. Karch ed. 2008), the BACs of suspected drunk drivers
who are unconscious will presumably be higher above the
legal limit—and thus remain above the legal limit for
Cite as: 588 U. S. ____ (2019) 15
SOTOMAYOR, J., dissenting
longer—than is true for suspects who are conscious and
close to sobering up. And, of course, the process for get-
ting a warrant remains the same.
All told, the mere fact that a person is unconscious does
not materially change the calculation that the Court made
in McNeely when it rejected a categorical exigency excep-
tion for blood draws. In many cases, even when the sus-
pect falls unconscious, police officers will have sufficient
time to secure a warrant—meaning that the Fourth
Amendment requires that they do so.
C
The plurality distinguishes unconscious drunk-driving
suspects from others based on the fact that their uncon-
sciousness means that they will, invariably, need urgent
medical attention due to their loss of consciousness. See
ante, at 13–14. But the need for medical care is not
unique to unconscious suspects. “Drunk drivers often end
up in an emergency room,” whether or not they are uncon-
scious when the police encounter them. See McNeely, 569
U. S., at 171 (opinion of ROBERTS, C. J.). The defendant in
Schmerber was hospitalized, yet the Court did not, in that
case or in McNeely decades later, promulgate a categorical
exception for every warrantless blood draw. That Mitchell
was hospitalized is likewise insufficient here. Even if the
plurality is right that every suspect who loses conscious-
ness will need medical care, not every medical response
will interfere with law enforcement’s ability to secure a
warrant before ordering a blood draw. See McNeely,
569 U. S., at 153–154; id., at 171–172 (opinion of
ROBERTS, C. J.).6
——————
6 The plurality’s new rule, in addition to requiring a defendant to
prove that the officer had no time to get a warrant, also appears to
require the defendant to show that his blood would not have been
drawn absent law enforcement’s need for a blood sample. See ante, at
16 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
Because the precedent is so squarely against it, the
plurality devotes much of its opinion instead to painting a
dire picture: the scene of a drunk-driving-related accident,
where police officers must tend to the unconscious person,
others who need medical attention, oncoming traffic, and
investigatory needs. See ante, at 15. There is no indica-
tion, however, in the record or elsewhere that the tableau
of horribles the plurality depicts materializes in most
cases. Such circumstances are certainly not present in
this case, in which the police encountered Mitchell alone,
after he had parked and left his car; indeed, Mitchell lost
consciousness over an hour after he was found walking
along the lake. The potential variation in circumstances is
a good reason to decide each case on its own facts, as
McNeely instructs and as the Court did in Schmerber. See
McNeely, 569 U. S., at 149–151, 156. The plurality in-
stead bases its de facto categorical exigency exception on
nothing more than a “ ‘considerable overgeneralization,’ ”
id., at 153, as well as empirical assumptions that the
parties not only lacked a chance to address, but that are
——————
16. That is, a suspect can never prevail under the new rule if the
hospital staff draws his blood for its own noninvestigatory medical
reasons. But, again, the relevant question is whether the evidence is
likely to dissipate before the police can obtain a warrant. This particu-
lar aspect of the plurality’s approach offers no help in answering that
question. The plurality separately suggests that, because an uncon-
scious person may well undergo a blood test for medical purposes
regardless, its de facto categorical exception “could lessen the intrusion”
of a blood draw. See ante, at 14, n. 8. But the fact that “people volun-
tarily submit to the taking of blood samples as part of a physical
examination,” Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (slip
op., at 22), does not make the process any less intrusive when per-
formed at the behest of law enforcement. Although one piercing is of
course less cumbersome than two, the privacy interests at stake go well
beyond physical discomfort. See supra, at 4–5; Birchfield, 579 U. S., at
___ (slip op., at 23); McNeely, 569 U. S., at 148.
Cite as: 588 U. S. ____ (2019) 17
SOTOMAYOR, J., dissenting
also belied by Wisconsin’s concession in this case.7
If and when a case like the one the plurality imagines
does arise, however, the police officers would not be
“force[d] . . . to choose between” the “rival priorities” of
getting a warrant and attending to “critical health and
safety needs.” Ante, at 15. Of course, the police and other
first responders must dutifully attend to any urgent medi-
cal needs of the driver and any others at the scene; no one
suggests that the warrant process should interfere with
medical care. The point is that, in many cases, the police
will have enough time to address medical needs and still
get a warrant before the putative evidence (i.e., any alco-
hol in the suspect’s blood) dissipates. And if police officers
“are truly confronted with a ‘now or never’ situation,” they
will be able to rely on the exigent-circumstances exception
to order the blood draw immediately. McNeely, 569 U. S.,
at 153 (some internal quotation marks omitted); Riley, 573
U. S., at 391. In any other situation, though—such as in
Mitchell’s and in many others—the officers can secure a
warrant.
V
The Fourth Amendment, as interpreted by our prece-
dents, requires police officers seeking to draw blood from a
person suspected of drunk driving to get a warrant if
possible. That rule should resolve this case.
——————
7 In addition to offering a justification for Wisconsin’s warrantless
search that the State itself has disavowed, the plurality also relieves all
States of their burden to justify similar warrantless searches. Until
now, the Court has said that “the police bear a heavy burden when
attempting to demonstrate an urgent need that might justify warrant-
less searches.” Welsh v. Wisconsin, 466 U. S. 740, 749–750 (1984); see
Coolidge v. New Hampshire, 403 U. S. 443, 455 (1971). Today, the
plurality turns that presumption on its head in favor of a new one that
“almost always” authorizes the police to conduct warrantless blood
draws even in the absence of an actual emergency. See ante, at 1.
18 MITCHELL v. WISCONSIN
SOTOMAYOR, J., dissenting
The plurality misguidedly departs from this rule, setting
forth its own convoluted counterpresumption instead. But
the Fourth Amendment is not as pliable as the plurality
suggests. The warrant requirement safeguards privacy
and physical autonomy by “assuring citizens” that searches
“are not the random or arbitrary acts of government
agents.” Skinner v. Railway Labor Executives’ Assn., 489
U. S. 602, 621–622 (1989); see id., at 621.
There is no doubt that drunk drivers create grave dan-
ger on our roads. It is, however, “[p]recisely because the
need for action . . . is manifest” in such cases that “the
need for vigilance against unconstitutional excess is
great.” Id., at 635 (Marshall, J., dissenting). “Requiring a
warrant whenever practicable helps ensure that when
blood draws occur, they are indeed justified.” McNeely,
569 U. S., at 174 (opinion of ROBERTS, C. J.). For that
reason, “the police bear a heavy burden” to justify a war-
rantless search like the one here based on “urgent need.”
Welsh v. Wisconsin, 466 U. S. 740, 749–750 (1984).
The plurality today carries that burden for a State that
never asked it to do so, not only here but also in a scatter-
shot mass of future cases. 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.
Cite as: 588 U. S. ____ (2019) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE GORSUCH, dissenting.
We took this case to decide whether Wisconsin drivers
impliedly consent to blood alcohol tests thanks to a state
statute. That law says that anyone driving in Wisconsin
agrees—by the very act of driving—to testing under
certain circumstances. But the Court today declines to
answer the question presented. Instead, it upholds
Wisconsin’s law on an entirely different ground—citing
the exigent circumstances doctrine. While I do not doubt
that the Court may affirm for any reason supported by the
record, the application of the exigent circumstances
doctrine in this area poses complex and difficult questions
that neither the parties nor the courts below discussed.
Rather than proceeding solely by self-direction, I would
have dismissed this case as improvidently granted and
waited for a case presenting the exigent circumstances
question.