The United States Supreme Court is considering a novel issue that may greatly impact driving under the influence (DUI) charges in the future.
In the case of Mitchell v. Wisconsin, Gerald P. Mitchell allegedly became so intoxicated that he passed out and became unconscious. Under Wisconsin's implied consent statute, the police drew his blood for testing to determine his blood alcohol content (BAC).
Mitchell argued that because he was unconscious, he was not able to withdraw his consent to the chemical testing as he would have been able to do if he were conscious and awake. He argues that this is a violation of his U.S. Constitution 4th Amendment rights against unreasonable search and seizure. His attempts to suppress the evidence against him at the trial court level, however, failed.
The Wisconsin Supreme Court disagreed with Mitchell but was split on their reasoning as to why. The justices who upheld the blood draw concluded that the Wisconsin statute that presumes consent by unconscious individuals is sufficient, and others held instead that the blood draw was a lawful "search incident to arrest."
The Issue of Implied Consent Notices
Implied consent notices have been the subject of many constitutional challenges over the years. Many opponents of these statutes claim that they are blatant violations of a person's constitutionally protected rights against unreasonable search and seizure. Proponents of the laws claim that intoxicated driving is a unique situation, a "privilege not a right," and that these types of statutes are constitutionally permissible.
The case of Mitchell v. Wisconsin has the potential to answer, or at least indicate an answer, this very important question: should these types of notices, which are present in a great many states, be upheld? Most state courts have upheld the implied consent notices in their territories, with certain limitations.
The Issue of Unconscious Suspects
Even assuming the validity of implied consent notices, the specific question posed by Mitchell v. Wisconsin is whether a state can legislate implied consent to an unconscious person. In the Commonwealth of Virginia, you have the legal right to deny or refuse officers and law enforcement access to your breath, blood, and urine during the informed consent procedure. (That is, so long as law enforcement does not get a court warrant for any of those.)
However, an unconscious individual is not able to make the same choice as his or her conscious peers. This seems unfair and inappropriate to assume that a person consents simply because he or she is unconscious. To hold otherwise is to assume a person would rather give up his or her rights and risk the exposure of incriminating evidence.
Consult an Experienced Virginia DUI Attorney
This question is yet unanswered, and the end result of this case could make the difference in a DUI case. But also: whatever the U.S. Supreme Court decides on the latter question, there are other constitutional rights you have that deserve to be protected.