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On The Front Lines

Rutherford Institute Challenges Forced Blood Draws and Police Use of Implied Consent Laws to Take Blood from Unconscious Suspects

WASHINGTON, DC  — Denouncing the police practice of forcefully and warrantlessly taking blood samples from unconscious suspects, The Rutherford Institute is challenging the use of “implied consent” laws as a means of bypassing fundamental Fourth Amendment protections for privacy and bodily integrity. In an amicus brief filed in Mitchell v. State of Wisconsin, Rutherford Institute attorneys are asking the U.S. Supreme Court to prohibit police from taking blood from a suspect as part of a criminal investigation unless they have a warrant or the person provides actual consent. The Institute’s brief comes in response to a ruling by the Wisconsin Supreme Court that police have the power to draw blood from an unconscious drunk driving suspect because his consent was “implied” by state law. The rationale behind “implied consent” laws is that drivers implicitly consent to breath or blood tests when applying for a driver’s license and risk having their licenses suspended by refusing to submit to such tests. Institute attorneys argue that “implied consent” laws do not override the Fourth Amendment’s mandate that police have a warrant in order to search for evidence of a crime.

“Unfortunately, forced blood draws are just the tip of the iceberg when it comes to the indignities and abuses being heaped on Americans by law enforcement,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Forced cavity searches, forced colonoscopies and forced roadside strip searches are also becoming par for the course in an age in which Americans are being taught the painful lesson that, conscious or not, we have no control over our bodies, our lives or our property when it comes to interactions with police.”

In May 2013, the Sheboygan, Wisconsin, police received a call that Gerald Mitchell was in distress. Mitchell had driven his van to the shore of Lake Michigan and consumed 40 pills and a mixture of vodka and soda. Police found Mitchell walking unsteadily along the lake, although his van was parked elsewhere. Mitchell was given a roadside sobriety test which showed that he had a blood-alcohol concentration of .24. He was taken into custody and driven to the police station where he was placed in a holding cell. While in the cell, Mitchell began to fall asleep or pass out, although he could be roused if stimulated. Wanting another test of Mitchell’s blood-alcohol level but unsure if Mitchell could cooperate with a breath test, police took Mitchell to a hospital to have his blood drawn and tested. Mitchell was unconscious upon arriving at the hospital. Police then read an unconscious Mitchell his rights under Wisconsin’s “implied consent” law, including his right to refuse to submit to a blood or breath test, and then proceeded to have a hospital technician forcibly draw his blood. Upon being prosecuted for operating a vehicle while intoxicated, Mitchell moved to suppress the blood test results on the ground that his blood was taken without a warrant or exigent circumstances. The trial court denied suppression, and on an appeal of the conviction, the Wisconsin Supreme Court also ruled that the blood test results were properly admitted under the state’s implied consent law, which includes a provision that an unconscious driver is presumed not to have withdrawn his consent to a blood test. The U.S. Supreme Court agreed to review this ruling and consider Mitchell’s argument that a state may not enact laws that deem persons to have waived their Fourth Amendment right not to have their bodies invaded by government. In its amicus brief supporting Mitchell, Institute attorneys argue that the Wisconsin courts erred by ruling citizens forfeit their fundamental right of privacy and bodily integrity under state laws regulating and licensing drivers.

Affiliate attorneys D. Alicia Hickok, Mark Taticchi, D. Alexander Harrell, and Matthew C. Sapp of Drinker Biddle & Reath LLP assisted The Rutherford Institute and CATO Institute in presenting the arguments in Mitchell.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated.

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