Wednesday , September 18 2019
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Unconscious Consent

Our right to be free of unreasonable searches and seizures just moved a step closer to extinction. The most recent U.S. Supreme court case to carve deeper into the Bill of Rights was Mitchell v. Wisconsin. DUI laws in most states allow a person to refuse a chemical test of their breath or blood although there is typically a civil penalty (ie. potential loss of driving privileges). On June 27th the United States Supreme Court ruled that Gerard Mitchell’s blood alcohol test results, taken while he was unconscious, could be used against him in court if state law permitted it based on the exigent circumstances exception to warrantless searches.

Justice Samuel Alito wrote the court’s opinion. He explained that although the Fourth Amendment generally requires a warrant for a search, there are numerous exceptions to that rule. The “exigent circumstances” exception, he wrote, allows searches without a warrant to “prevent the imminent destruction of evidence.”

Alito has generally favored police powers over the rights of individual citizens to be free from government coercion. Alito wrote that blood-alcohol limits serve an important purpose in that they “are needed for enforcing laws that save lives.” If tests are not performed promptly, he wrote, the alcohol in a person’s bloodstream over will disappear over time. Therefore, “evidence is literally disappearing… by the minute.” The ruling of the court creates a general rule that police do not need a warrant to draw blood from an unconscious driver suspected of drunk driving.

Justices Sotomayor, Ginsburg and Kagan wrote a dissent in which they argued that Alito’s decision created a false premise that the police must choose between dealing with a drunk driver and getting a warrant. They argued that the Fourth Amendment creates a clear standard- “if there is time, get a warrant”. The state of Wisconsin never argued to the court that the exigent circumstances exception to warrants applied in Mitchell’s case. In fact, Wisconsin even conceded that the exception did not apply. The court’s ruling revealed the makeup of the court’s current justices in regard to where they stand on the fourth amendment. Justice Gorsuch dissented as well in the 5-4 ruling, writing that the court didn’t address the proper question presented by the case. He wrote that he would have dismissed the case without deciding it, and then waited for another case in which the exigent-circumstances exception was squarely presented to address that issue. Whether he would have sided with the pro-police powers majority was not clear. Where does that leave us?

For now, state laws retain jurisdiction over warrant requirements in cases like Mitchell’s, but the general rule will be that an unconscious blood draw will arguably be admissible in court due to exigent circumstances. Police have difficult jobs, and work to protect the public. That being said, the Fourth Amendment was enacted to prevent the long train of abuses that citizens have endured at the hands of their governments throughout history. Human nature has not changed. We need a Supreme Court that will stand up zealously for the rights of citizens to be free of government overreach into our personal space. Unlimited police powers leave no room for freedom. Liberty cannot exist without privacy. It cannot exist without the freedom to dissent from government requests for information and power. In Mitchell v. Wisconsin, the court was anxious to get it wrong on the issue of personal liberties.

About John Schleiffarth

John Schleiffarth

If you would like to contact the author, please visit: http://www.jcsattorney.com


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