The Supreme Court has ruled that police may, without a warrant, order blood drawn from an unconscious person suspected of driving under the influence of alcohol.
The Fourth Amendment generally requires police to obtain a warrant for a blood draw. But in a 5-4 vote on Thursday,the court upheld a Wisconsin law that says people driving on a public road have impliedly consented to having their blood drawn if police suspect them of driving under the influence. It also said that “exigent circumstances” permit police to obtain a blood sample without a warrant.
Justices Samuel Alito, Clarence Thomas, Stephen Breyer and Brett Kavanaugh joined Chief Justice John Roberts in the majority vote.
The decision conflicts with previous court rulingsin which the justices ruled that a blood draw is a significant bodily intrusion into a person’s privacy and that there are less intrusive ways of enforcing drunken driving laws against unconscious motorists — getting a warrant, for instance, which in these tech-savvy days can be done relatively easily and quickly.
In 2013, for instance, the high court ruled that police violated the Constitution when they ordered a nonconsensual blood draw without a warrant in a routine DUI case. The vote then was 5-4, but two of the justices in that majority, Antonin Scalia and Anthony Kennedy, are no longer on the court.
The constitutional rights case produced four opinions — two concurring and two in dissent. In a break with his conservatives benchmates, one of those dissents came from Justice Neil Gorsuch.
The opinions reflect a deep divide over an essential question: whether the Wisconsin case should be decided on the basis of implied consent or on the question of what kind of emergencies allow for an exception to Fourth Amendment protections.
In his concurring opinion, Thomas wrote that because the evidence of alcohol in drivers’ blood will dissipate over time, states can invoke the “exigent-circumstances doctrine” on that basis alone to allow police to order a blood test without a warrant. Explaining why he took a stand apart from Alito’s plurality opinion, Thomas wrote that it “adopts a rule more likely to confuse than clarify.”