Can Police Test the BAC of an Unconscious Driver?
A Wisconsin case pending before the Supreme Court of the United States challenges the legality of a BAC test taken while the driver was unconscious. The Supreme Court’s ruling could affect the law in Oklahoma, which currently permits both blood and breath tests of people who are unconscious. 47 O.S. § 751.
What Happened in the Case?
The Wisconsin case centers on a blood draw from a man named Gerald Mitchell who was found “wet, shirtless and covered in sand” on a beach after police had received reports that he was driving drunk. He unfortunately all but admitted that he had been driving drunk when police questioned him. On the way to the hospital for a blood draw, the man fell asleep. Police could not wake him up and he was unable to answer questions on a blood draw consent form. The officers directed hospital staff to draw his blood anyway, while he was asleep.
The man challenged the blood draw as unconstitutional under the Fourth Amendment, which prohibits unlawful searches and seizures. His challenge made it all the way to the Wisconsin Supreme Court, which found that the blood draw was lawful. Three justices cited the state’s implied consent laws, which allow blood draws if police have probable cause to believe that a driver is under the influence. He has appealed the case to the Supreme Court, which should make a decision by summer 2019.
Aren’t There Any Limits to Implied Consent Laws?
A prior Supreme Court decision in the case of Birchfield v. North Dakota imposed some limits on implied consent laws. 579 U.S. __ (2016). While the decision concluded that states could impose criminal penalties for suspects who refuse warrantless breath tests for DUI under informed consent laws, it said that states could not impose these penalties for refusal to take a warrantless blood test.
The Court’s decision in Birchfield may influence the outcome of the Mitchell case in Wisconsin. The conclusion in Birchfield that blood draws are more intrusive than breath tests could help Mitchell show that blood draws from unconscious people without the opportunity to withhold or give consent are also so intrusive as to violate the Fourth Amendment. It will take a few months to learn the Supreme Court’s decision.
Need an attorney for DUI charges in Oklahoma? Seek out the attorney who is in court nearly every day and teaches other attorneys and law enforcement about sobriety testing techniques. Clint Patterson, Esq., of Patterson Law Firm, a former Tulsa prosecutor now using his trial experience and expert-level knowledge of DUI science to defend drivers, has the experience and the insight to evaluate the strengths and weaknesses of your case. To schedule a case evaluation, visit Patterson Law Firm online or call Clint’s office at (918) 550-9175.