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You wake up in the hospital, an IV in your arm, handcuffed to a gurney, and a concerned nurse looking over at you. All you remember is being out with friends, getting in your car, the red and blue lights, and a police officer saying you are under arrest. Then nothing, a blank void in your memory timeline where anything could have happened. You come to find out you were arrested for Driving While Impaired or DWI that night and that you were taken to the hospital because you became unconscious. You are grateful to be alive and that nobody was hurt. You notice the IV in your arm and the nurse telling you they had to give you fluids and run tests. You are also told the police will be back and that they were just dropping off the blood sample they got from you. You feel a bit violated the police just took your blood while you were unconscious, and you wonder can they really do that?

This is the same question the United States Supreme Court considered in Mitchell v. Wisconsin. The 4th Amendment of the United States Constitution along with the Minnesota Constitution protect people from unreasonable search and seizures. The Supreme Court has already decided in a prior case that blood draws by police are searches and unlike a breath test a warrant is generally needed. But not always, in Schmerber v. California Supreme Court determined that in some situations police officers have more pressing matters to deal with so a warrant is not needed. Specifically, when police officers respond to an accident the delay in submitting a warrant, while dealing with an accident scene, would actually threaten the destruction of evidence. The Supreme Court felt that an exigent circumstance existed and that a delay in getting the warrant would truly lead to the destruction of evidence.

This is where the Supreme Court picked up in Mitchell v. Wisconsin, when someone is arrested and before a breath test can be conducted passes out does a police officer need to get a warrant for a blood test. Unfortunately, for strong believers in the 4th Amendment police officers likely don’t. Like the Supreme Court’s decision in Schmerber the Supreme Court believed that situations involving an unconscious driver go from a simple arrest to a medical emergency and an arrest. Meaning the driver would need to be rushed to the hospital not just for a blood test; but also, for monitoring, a blood draw for diagnostic testing, and immediate medical treatment. The U.S. Supreme Court felt that by the time a police officer obtains a warrant the drivers need for medical treatment may delay the taking of the blood for the test or distort the results of the blood test, reducing the value of the evidence obtained. The Supreme Court reasoned their decision on the idea that in these situations police officers would have to choose between prioritizing a warrant, to the detriment of safety and health, or delaying the warrant, to the detriment of losing evidentiary value in a blood test.

However, the U.S. Supreme Court did not make a hard and fast rule that whenever a person is unconscious a warrant is not necessary for a blood test. Instead, it stated that the general rule is that a warrant is not needed due to the exigent circumstances, but if a Defendant can 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, then a warrant would still be needed. Also, this was not a strong unanimous decision and multiple Judges disagreed with the overall decision of the Court. So, while the Mitchell decision delivered a critical blow to the warrant requirement it remains to be seen what the type of impact it will truly have. Even the driver in Mitchell got to redo his case and try to argue the exigent circumstance exception did not apply. So even though warrants are not typically need for unconscious drivers, good defense attorneys will have the room to argue the exigent circumstance warrant exception doesn’t based on the specific set of facts.

Benjamin W. Koll is an Associate Attorney at Ambrose Law Firm, PLLC in Minneapolis. He graduated from Mitchell Hamline School of Law and clerked for a Ramsey County District Court Judge before joining Ambrose Law Firm. Woodbury DWI Attorney; Minnesota DWI Lawyer; and Criminal Defense Attorney Woodbury MN.

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