Just last month, we posted a blog post about the case Mitchell v. Wisconsin, which presented the court with the question of whether, and in what circumstances, police can draw the blood of an unconscious motorist. At the end of June, the Court released its opinion in the case. In what is the relatively rare case, the Court could not come up with a majority opinion. However, five of the nine Justices were able to agree on a result. Because of this, the future of the law is still somewhat in question, as no five Justices could agree on a rationale.
Justice Alito wrote the opinion for the plurality, and was joined by the Chief Justice, Justice Breyer and Justice Kavanaugh. In his opinion, Justice Alito explained that warrantless blood draws of an unconscious driver are most often permissible because “there is a compelling need for official action and no time to secure a warrant.” However, Justice Alito made room for exceptions, noting that in some “unusual cases” where a defendant can show that “his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”
While Justice Alito’s opinion garnered the votes of four Justices, that is insufficient to create a majority opinion. This is referred to as a plurality opinion. However, Justice Thomas joined in the result of the plurality, although he based his decision on a different calculus. Justice Thomas would have held that a warrantless blood draw is always permissible if police officers have reason to believe that a motorist is under the influence – regardless of whether they are conscious or unconscious.