In the

Supreme Court of the United States

GERALD P. MITCHELL, PETITIONER

v.

STATE OF WISCONSIN

 

BRIEF FOR THE RESPONDENT

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Wisconsin Stat. ¤ 343.305(2) provides, in relevant part:

"(2) IMPLIED CONSENT. Any person who ... operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under sub. (3)(a) or (am) or when required to do so under sub. (3)(ar) or (b)."

Wisconsin Stat. ¤ 343.305(3)(a) provides:

"REQUESTED OR REQUIRED. (a) Upon arrest of a person for violation of s. 346.63(1), (2m) or (5) ... a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample."

Wisconsin Stat. ¤ 343.305(3)(b) provides:

"A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m) or (5) ... one or more samples specified in par. (a) or (am) may be administered to the person."

Wisconsin Stat. ¤343.305(4) provides:

"INFORMATION. At the time that a chemical test specimen is requested under sub. (3) (a), (am), or (ar), the law enforcement officer shall read the following to the person from whom the test specimen is requested:

'You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.

This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court."

Wisconsin Stat. ¤ 343.305(5)(b) provides: "Blood may be withdrawn from the person ... only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician."

STATEMENT OF THE CASE

  A.        Legal background.

"Drunk drivers take a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year." Birchfield v. N. Dakota (2016). Against that backdrop, "all 50 States have adopted implied consent laws." Missouri v. McNeely (2013). Those laws are "legal tools" that States may use "to enforce their drunk-driving laws and to secure blood alcohol concentration BAC evidence without undertaking warrantless nonconsensual blood draws."

Wisconsin's law, like other States', provides that "any person who ... drives or operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity ... of alcohol or controlled substances" when requested by an officer with probable cause of driving under the influence.

The officer reads a form (called Informing the Accused) that instructs the driver that submission to a test is being sought. The officer is required to inform a conscious person that, if the person submits and the analysis "shows more alcohol in the person's system than the law permits while driving," the person's operating privilege will be suspended and the results may be used in court. If the driver refuses to submit, then that comes with consequences: "if you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties." A refusal also may be used against the person in court.

This Court, in Birchfield, explained that the penalties for refusing a blood test may not include criminal ones but may include "civil penalties and evidentiary consequences on motorists who refuse to comply." Wisconsin's law conforms to that limit.

The issue here concerns instances where the Informing-the-Accused interaction is not possible because the driver is unconscious. Wisconsin law provides that, when the intoxicated driver is "unconscious or otherwise not capable of withdrawing consent," he "is presumed not to have withdrawn consent." An officer with probable cause may proceed to administer the taking of a sample through a "medical professional."

B.        Background on impaired driving.

"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Mich. Dep't of State Police v. Sitz (1990). In a given year, drunk driving takes 10,000 lives, or more, in the United States; that is about one death every 48 minutes.

Like the rest of the country, Wisconsin feels its effect. For example, between 2003 and 2012, 2,577 people died in Wisconsin crashes involving a drunk driver, and fatality rates for all age groups exceeded the national average. The percentage of adults in Wisconsin who report intoxicated driving-3.1 percent-exceeded the national rate of 1.9 percent.! The harms continue: on average, there were about 200 alcohol-related fatalities in Wisconsin yearly between 2011 and 2015, and an average of 2,800 alcohol-related injuries each year."

On top of this, drugged driving is on the rise. The country is suffering from an opioid epidemic and emergency room visits have risen dramatically due to opioid overdoses." And that is not the only drug that poses a threat. One recent study found "a large increase" in drugged driving, with "nearly one in four drivers testing positive for at least one drug that could affect safety." According to the Governors Highway Safety Association, from 2006 to 2016, the number of fatally-injured drivers who tested positive for drugs rose from 27.8% to 43.6%; of those fatally-injured drivers tested in 2016, 38% were positive for some form of marijuana, 16% for opioids, and 4% for both."

It is documented that drugged and drunk drivers lose consciousness. For example, it takes only a quick search to find incidents like this recent one in Wisconsin: "the impaired motorist left a path of destruction in his wake. Officers found the motorist slumped over the wheel of his girlfriend's car around

3:50 a.m." The available data shows that drunk drivers cited in Wisconsin have a "median alcohol concentration" of 0.16%. According to the National Institutes of Health, a 0.16% blood alcohol concentration begins the range of "severe impairment" (between a ".16-.30%" blood alcohol concentration). One symptom for that range of impairment is "loss of consciousness."

Overdoses on opioids "lead to unconsciousness," too. As Outagamie County, Wisconsin, officials recently reported, "We have . . . had numerous incidents in which officers responded to drug users (who were) unconscious in their vehicles after using drugs." Here is a sampling of recent headlines about drugged unconscious drivers in Wisconsin: "Richfield man on opioids crashes car at Radisson Hotel"; "Unconscious man drives through neighborhood lawns after using heroin"; "Unconscious driver on I-43 overdosed on heroin"; and "Driver overdoses on heroin in van at rural Stoughton intersection," to cite a few.

C.        Factual background.

In May 2013, the Sheboygan County, Wisconsin, police received a call at 3:17 p.m. reporting concerning behavior by Gerald P. Mitchell. Officer Alex Jaeger responded and spoke to Mitchell's neighbor, Alvin Swenson. Swenson reported observing Mitchell as apparently "intoxicated or under the influence," and acting "very disoriented" and "stumbling." This culminated in Mitchell "nearly falling several times before getting into a gray minivan and driving away."

About one-half hour later, the police found Mitchell. Officer Jaeger again responded and observed that Mitchell's condition was consistent with what Swenson described. "He was slurring his words. He had great difficulty in maintaining balance, nearly fell several times"; he required the help of officers to stay upright. He also was shirtless, wet, and covered in sand. Officer Jaeger further observed that Mitchell smelled strongly of intoxicants, and he was belligerent. Another officer located Mitchell's minivan and found that it had minor, apparently fresh, damage. And Officer Jaeger learned that Mitchell had prior convictions for operating while intoxicated. Mitchell admitted to drinking both at his apartment and at the beach. He said he parked his vehicle because he had been too drunk to drive.

Officer Jaeger did not have Mitchell perform field sobriety tests because it would have been unsafe: Mitchell "could barely stand without being held." He administered a preliminary breath test, which indicated a blood alcohol concentration of 0.24%. He arrested Mitchell for operating while intoxicated at 4:26 p.m. and put him in a squad car for transportation to police headquarters.

On the way to the police station, Mitchell's condition began declining, and he became more lethargic. He had to be helped out of the squad car. When Officer Jaeger placed Mitchell in a holding cell, Mitchell began to close his eyes and "sort of fall asleep or perhaps pass out," but would wake up with stimulation.

In light of Mitchell's condition, Officer Jaeger concluded that an evidentiary breath test would be inappropriate, and he transported Mitchell to the hospital. During the approximately eight-minute trip, Mitchell became "completely incapacitated" and would not wake up even when stimulation was applied (like shaking his arms or hands). He was escorted into the hospital by wheelchair, where he then slumped over unable to lift himself.

Officer Jaeger read the Informing the Accused form to Mitchell and requested a blood sample for evidentiary testing. However, Mitchell "was so incapacitated he could not answer." A phlebotomist then obtained a blood sample from him at 5:59 p.m. The test revealed a blood alcohol concentration of 0.222%.

Officer Jaeger recalled that, as he waited for the phlebotomist to draw blood, "medical efforts were being attempted" and Mitchell was being monitored by hospital staff. Mitchell "couldn't answer any hospital staff," and he "did not awaken while they placed catheters or any other type of medical instruments on him." Mitchell eventually was admitted to the hospital's intensive care unit.

D.       Procedural background.

The State charged Mitchell with seventh-offense operating a motor vehicle while under the influence of an intoxicant and seventh-offense operating a motor vehicle while having a prohibited alcohol concentration, as Mitchell had six prior operating while intoxicated convictions.

Mitchell moved to suppress the blood test results on the ground that his blood was improperly drawn without a warrant. The trial court denied the motion. A jury found Mitchell guilty, and he was sentenced to three years of initial confinement and three years of extended supervision.

Mitchell appealed. The Wisconsin Court of Appeals certified the case to the Wisconsin Supreme Court to decide "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." The Wisconsin Supreme Court then affirmed Mitchell's conviction in a fractured opinion.

The lead opinion concluded that Mitchell had "voluntarily consented to a blood draw by his conduct of driving on Wisconsin's roads and drinking to a point evidencing probable cause of intoxication." "Through drinking to the point of unconsciousness," that opinion explained, Mitchell forfeited his statutory opportunity under Wis. Stat. ¤ 343.305(4) to withdraw his consent. It concluded that this mechanism was reasonable under the Fourth Amendment.

The concurring opinion upheld the warrantless blood draw but on different grounds. Citing a confluence of circumstances-including unconsciousness, drunk driving, the "evanescent evidence," and "no less intrusive means"-the opinion concluded that the blood draw "on an unconscious individual who has been arrested for operating a motor vehicle while intoxicated . . . is reasonable within the meaning of the Fourth Amendment."

A two-justice dissent concluded that "consent provided solely by way of an implied consent statute is constitutionally untenable," and found no other basis to support the search. Mitchell petitioned this Court for a writ of certiorari on the issue of "whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth amendment warrant requirement."

SUMMARY OF THE ARGUMENT

Drunk and drugged driving is an enormous public safety problem, and it is pernicious in Wisconsin. Yet it is everywhere; it takes a terrible national toll. The States must have tools to combat it, and every State does: implied consent. That implied consent makes a great deal of sense in the impaired driving context, where suspects often are, at a minimum, incoherent at the time police encounter them-indeed, at times, they are unconscious.

Wisconsin's implied consent statute is precisely the type of law that this Court has repeatedly endorsed, and upon which it has said that it casts no doubt. Mitchell, too, casts no doubt on implied consent, generally. Rather, he challenges a particular proviso, one that targets only a subset of drugged and drunk drivers: those that render themselves unconscious through intoxication or involvement in an impaired-driving crash. In other words, the law targets the most alarming and dangerous subset of all. This is not the time for the Court to deviate from its traditional support of implying consent for drunk and drugged drivers.

I. This Court has long recognized the validity of implied consent laws under the Fourth Amendment. It has not just upheld them but has endorsed them as valuable "legal tools to enforce States' drunk-driving laws."

States may impose implied consent laws that "declare   that any person operating a vehicle ... is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated." S. Dakota v. Neville (1983). In McNeely, the Court approved of implied consent laws as an important "tool" and an alternative to nonconsensual blood draws. In Birchfield, the Court reaffirmed the laws' general validity, only recognizing a limit on what penalties may flow from a refusal: "It is another matter ... for a State ... to impose criminal penalties on the refusal to submit to such a test." The Court made clear that "nothing we say here should be read to cast doubt on" implied consent impaired driving laws more generally.

Wisconsin's implied consent statute is valid under Neville, McNeely, and Birchfield, as it deems a driver to have consented to a blood draw if there is probable cause that he drove while impaired. If the driver refuses to submit and withdraws his consent, his operating privilege may be revoked, but there are no criminal penalties. That is what Birchfield allows.

II. Mitchell does not challenge implied consent impaired driving laws, generally. Rather, he believes that the traditional approval of those laws should not encompass the impaired driver who is unconscious. The Court should reject that view. Implied consent applies equally to the unconscious driver: he already has consented to the search. Further, even if consent were not conclusive, this Court should uphold the search as a reasonable and limited condition that comes with the privilege of driving.

A. Consent is favored, and a "search authorized by consent is wholly valid." Schneckloth v. Bustamonte (1973). It is not a rigid concept. For example, consent need not be verbalized and may occur through actions. It may be inferred.

The Court has approved of implied consent intoxicated driving laws. Those laws, on their faces, provide that a person consents to a search. They provide "consent to ... tests." Wis. Stat. ¤ 343.305(2). This Court has recognized that states may "declare   that any person operating a vehicle ... is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated." It continues to recognize that this is inferred consent. As the Court reaffirmed in Birchfield, when discussing implied consent, "sometimes consent to a search need not be express but may be fairly inferred from context." That statement referenced with approval consent inferred both from conduct and from a choice to participate in a specially restricted activity.

Becoming unconscious changes nothing about that consent analysis. The unconscious intoxicated motorist already has impliedly consented. He may, either before becoming unconscious or if he awakens, withdraw his consent. But the Constitution does not require a State to afford the opportunity for him to withdraw it.

Continuing to imply consent in these circumstances makes especially good sense because the law is narrowly targeted. It allows police to take evidence of intoxication only, and only from an intoxicated unconscious motorist who has created the dangerous situation. Holding otherwise would grant a motorist intoxicated to the point of unconsciousness greater rights. That should not follow, especially since the implied consent flows directly from that driver's own choices.

B. While this Court should hold that Mitchell's blood draw was valid because he consented, that is not the only path. "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno (1991).

As Mitchell recognizes, the search may be valid if it is a reasonably imposed "condition of accepting certain government benefits." Indeed, there is a tradition of upholding searches where, as here, it is a narrow condition on a public privilege or participation in a highly-regulated field. This case presents an intersection of those justifications. The search concerns not only the highly-regulated act of driving but also the heavily-scrutinized area of intoxicants.

Under the reasonableness test, this Court weighs the promotion of legitimate governmental interests against the degree to which the search intrudes upon an individual's privacy. There should be no serious question how that balance tips here. Everyone agrees that drunk and drugged driving gives rise to a weighty government interest in combating it. And the unconscious intoxicated driver is an especially dangerous subset. Further, drug-impaired driving is on the rise, putting a growing set of opioid-addicted drivers on the road. The States need their "tools" to combat both the existing and growing problem.

There is little to put on the other side of the balance because a blood draw, in these circumstances, adds little intrusion, if any. An unconscious drunk or drugged driver likely will have his blood drawn by medical professionals, no matter what. Further, he will sense none of it.

Mitchell's view that a warrant must issue does not grapple with those realities, or with what use a warrant truly would serve. Probable cause in these scenarios will not be subject to serious dispute, and the warrants will be identical in scope. On the other hand, requiring the steps needed to obtain a warrant poses real concerns. Police likely will need time to assess the unconscious driver's state and any injuries to others, and to secure the scene. Delay means evidence is disappearing and, in these cases, any time lost may lead to serious medical consequences for the unconscious driver. An officer should be able to focus on that, and not on obtaining a warrant that will serve no demonstrable purpose.

The balance strongly favors the reasonableness of the narrow condition imposed here.

III. Lastly, this case provides an opportunity for the Court to revisit Birchfield's search incident to arrest analysis in the context of an unconscious driver. There, in dicta, the Court commented that an unconscious intoxicated driver could not have his blood drawn incident to arrest. Now that the Court is faced with an unconscious driver, it should conclude otherwise. The key reasons that this Court gave for distinguishing a breath test from a blood test for the conscious driver would not apply here.

 

CONCLUSION

The unconscious intoxicated driver scenario is not as uncommon as one would hope. When it arises, police should be able to act decisively within the narrow confines of the implied consent presumption. That mechanism provides consent that satisfies the Fourth Amendment. Regardless, it is reasonable to search under these circumstances based on the Fourth AmendmentŐs balancing test. Either way reasonableness—present here—should dictate the result.

 

The judgment of the Wisconsin Supreme Court should be affirmed.