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Officer Can Draw Blood of Unconscious Driver Without Warrant

By Lisa M. Schaffer, Esq. on July 12, 2018 | Last updated on March 21, 2019

Intoxication and consent -- it's a complicated topic. The very definition of consent, what it means to be able to give it, and how intoxication factors into consent, has been the subject of heated debate. Recently, the Wisconsin Supreme Court ruled that a police officer can draw the blood of an unconscious driver without a warrant, and without actual consent.

Fourth Amendment -- Search and Seizure

Before getting into that case, an overview of the search and seizure law is in order. Rooted in the Fourth Amendment to the U.S. Constitution, people have the right to not have their bodies, cars, homes, and the like searched without a warrant issued by a judge. A judge can only issue a warrant if there is probable cause that a crime has taken place. There are two major exceptions to this warrant requirement: police can legally do a search if there is probably cause that a crime has been committed, or if the individual gives consent.

And Now, Back to Wisconsin ...

In a recent case in Madison, Wisconsin, Gerald Mitchell was reportedly driving his car erratically. Police were called, and he was pulled over at a beach in Sheboygan. After blowing 0.24 blood-alcohol level on the breathalyzer test, Mitchell gave consent to have his blood drawn. The police put him in the cop car and took Mitchell to a local hospital to have his blood drawn.

On the drive to the hospital Mitchell fell asleep -- who can blame him! Police were unable to rouse him, and so they asked the unconscious man if he wanted to withdraw his consent, but of course Mitchell was unable to answer. And so they took that as consent and drew his blood. The blood test confirmed the breathalyzer test. Case closed!

Or is it? In this instance, it could be. The erratic driving did give police probable cause to believe that a crime was being committed. Certainly the 0.24 breathalyzer test did too. (As a side note, most states do have vehicles laws that state drivers automatically give consent to having a breathalyzer test if it appears the driver is drunk as part of their privilege of obtaining a driver's license.) However, two members of the Wisconsin Supreme Court did say that a blood draw is too intrusive of a procedure to do with merely implied consent, and that an intoxicated person can't possibly give actual consent, so a warrant should have been required.

As the debate over consent rages on, from Brock Turner to the Utah Emergency Nurse arrest fallout, to Mitchell in Sheboygun. If you think that your rights were violated in a recent DUI incident, or any other case in which consent is at issue, contact an attorney to see if the law is on your side.

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