Gerald Mitchell says failure to get blood draw consent negates conviction

A driver who was so drunk he was rendered unconscious asked the Supreme Court on Tuesday to toss out his conviction, saying he was too incapacitated to consent to police taking the blood sample that was used to convict him.

The lawyer for Gerald Mitchell, who was convicted in part by his blood test results, told the justices during oral argument that police should have gotten a warrant before taking his client’s blood.

But Wisconsin, the state where Mitchell was convicted of his seventh drunken-driving offense, said anyone driving on its roads has given implied consent to take blood, and it’s up to drivers not to place themselves in dangerous conditions where they need medical care — and can have blood drawn.

Hannah Jurss, Wisconsin’s assistant attorney general, said police responding to an emergency shouldn’t be distracted with the need to obtain a warrant for their criminal investigation. The alternative could be to delay care, she said.

Andrew Hinkel, the lawyer for Mitchell, said that opens a dangerous precedent to all sorts of implied consent such as searching a driver’s cellphone or checking a GPS device.

“This court has never approved a search on the theory that … consent can be deemed by operation of law,” Mr. Hinkel said. ≈

That argument appeared to be a winner for the court’s liberal bloc.

“The state can’t extract a condition that’s more invasive than reasonably necessary for its needs,” Justice Sonia Sotomayor said.

Wisconsin is one of 29 states that have “unconscious clauses” in their laws to address drivers found incapacitated but suspected of driving drunk.

Courts have upheld some of those laws but ruled others violate the Fourth Amendment.

In Tuesday’s case, Mitchell tried to take his own life in 2013 by downing 40 pills and drinking vodka mixed with Mountain Dew on the shore of Lake Michigan. A concerned neighbor had contacted police after seeing Mitchell drive off in his van.

Police later located him in a disoriented state and took him to the police station. Mitchell admitted he had parked his van at the lake because he was too drunk to drive.

After about an hour at the police department, Mitchell became unconscious and was then taken to the hospital, about an eight-minute drive away, and admitted to the intensive care unit.

While Mitchell was being treated, Officer Alex Jaeger ordered his blood be drawn and tested. He had a blood-alcohol concentration of .222, or nearly three times the legal limit for driving.

After being found guilty of his seventh offense, he unsuccessfully appealed to the Supreme Court of Wisconsin, which ruled the blood test — taken while he was unconscious — did not violate the Fourth Amendment.

At the U.S. Supreme Court, conservative-leaning justices seemed skeptical as well.

“If the law says if you’re going to operate a motor vehicle on our highways, you impliedly consent to this,” Chief Justice John G. Roberts Jr. said. “People are supposed to know the law.”