The US Supreme Court recently granted review in Mitchell v. Wisconsin, a case about whether the Fourth Amendment allows for “implied consent” to draw blood from an unconscious motorist. The State of Wisconsin provides that a driver within the state impliedly consents to a blood test for blood-alcohol information when police have probable cause to believe the driver has driven while under the influence. Further, if the driver is unconscious, the Wisconsin law treats him as having forfeited the opportunity to withdraw consent to the blood test. Though a conscious driver may withdraw consent, she faces penalties for doing so. The suspect in the case challenged the law, arguing that under ordinary circumstances, a warrantless blood test for evidence of intoxication violates the Fourth Amendment right against unreasonable searches. In this column, I will consider the merits of this case.
What exactly does “implied consent” mean? In the Fourth Amendment area, consent—unmodified—means that a person has agreed to allow the police to do something that they might otherwise need a warrant or probable cause or some other justification to do. For example, say police pull you over for speeding while you are driving down the highway, and they then ask whether you mind if they search your car. A response of “not at all, officer; go right ahead” constitutes consent to the search of your vehicle. Without your permission, the Fourth Amendment would bar the vehicle search absent probable cause or some exception to the probable cause requirement. The theory behind consent is that if you say police may search or seize or do something else that they ordinarily may not do, then police act reasonably when they act on that consent. Consent searches and seizures are efficient, because they spare the police the need to jump through procedural hoops.
Implied consent essentially means that the law is going to treat something as amounting to consent even when no one has actually consented (in the normal sense of the word). Here is a simple illustration. Imagine that New York State passes a law that says that anyone who enters the State impliedly consents to being strip-searched at any time. Such a law would mean that even though no one has consented to a strip search, a suspect’s mere presence in the State of New York would authorize police to strip search him without a warrant, without probable cause, and without actual permission. Another way in which the law sometimes describes such situations is by speaking of “constructive” consent. A person takes some action that in no way signifies actual consent, but the law treats the action as consent anyway.
We can find an old (but not old enough) variation on this idea in the marital rape exemption. Under the law in all states at one time and then in some states, well into the late twentieth century, a married man could rape his wife without triggering application of the criminal law against rape. The thinking by such leading lights as seventeenth-century jurist Sir Matthew Hale was that when a woman married a man, she constructively consented—or impliedly consented—to sex on demand. This formulation meant that even if a woman was not consenting, however forcefully and volubly, her earlier consent to be a man’s wife would authorize the man to force her to have sex against her will.
When you see the words “implied consent,” it therefore makes sense for you to think the word “without” before the word “consent.” The question at issue in the Supreme Court, then, is whether the Fourth Amendment permits a police officer, who has probable cause to believe that an unconscious suspect was driving under the influence, to take blood from the suspect without getting a search warrant. That is, may the law treat driving in Wisconsin as if the driver had said “okay” to a police officer’s request to take the suspect’s blood?
The Court has previously addressed the role of the warrant requirement in blood-alcohol testing of suspects. In Birchfield v. North Dakota, decided in 2016, the Court confronted the question whether the Fourth Amendment would permit police to perform warrantless breathalyzers and/or blood draws incident to arrests for DUI. The Supreme Court held that a warrantless breathalyzer incident to a DUI arrest is permissible, but a warrantless blood test in similar circumstances is impermissible. A blood test is more invasive and reveals more information than a breathalyzer and accordingly requires a warrant.
The North Dakota approach was somewhat different from the Wisconsin one. In both cases, the law gave police the option of taking blood from a DUI suspect, in the presence of probable cause, without having to first jump through the warrant hoop. In the earlier case, however, the government sought to proceed on the basis of a lawful DUI arrest alone. In the case now before the Court, the government defends a warrant exception on the basis of implied consent.
Recall that implied consent means that no one has actually consented. The law of Wisconsin provides that anyone who drives a car in that state thereby “consents” to the police drawing his blood if he is unconscious and they have probable cause to believe that he was driving while intoxicated. Consent cases fall under a very different rubric from that governing nonconsensual searches and seizures. If police simply wish to perform a blood test, then they have to justify the test and—if they want to skip the warrant step—justify the failure to obtain a warrant. With consent, on the other hand, police may perform almost any search or seizure, no matter how baseless. The Court has held, in Schneckloth v. Bustamonte, that a consensual search is a reasonable search, for Fourth Amendment purposes, even if police lack any reason for doing it.
Does the phrase “implied consent” place blood tests under the rubric of consent searches, which are categorically permissible, or does it leave in place the reality that preceded the use of the phrase “implied consent”? If “implied consent” does nothing to change the blood draw, then we would likely revert back to the Court’s earlier ruling and regard the warrantless search as a presumptive Fourth Amendment violation. And as a factual matter, driving a car does not in any real sense convey a driver’s “consent” to a warrantless blood test.
One could potentially argue that driving a car is a privilege rather than a right and may therefore carry conditions. For example, laws that require working headlights and taillights carry the condition that if one of these lights is broken, the police may pull over the driver. Might the blood test be the same thing, where driving a car carries the condition that if probable cause arises to believe that the driver is intoxicated, the police may take the driver’s blood? Maybe, but the argument is weak. The headlight requirement demands that drivers keep working headlights. If a headlight is broken, then police may pull over the driver because she has violated the law, and they have probable cause (or reasonable suspicion) to that effect. The analogous requirement is that the driver remain sober, and police may pull over the driver if they have probable cause to believe she is drunk. By hypothesis, however, the implied consent law allows police to go beyond searching or seizing in the presence of a warrant or probable cause or whatever the Fourth Amendment requires. The law says that in the absence of a warrant certifying probable cause to believe a driver has committed a crime, police may still search because of a fictional consent.
Given how the Court has ruled in the past, it seems likely that it will reject the implied consent argument, especially given the 2016 ruling in Birchfield. Furthermore, it ought to be said that there is something quite disturbing about the whole notion of “implied consent,” quite apart from the warrant requirement for blood tests. When we speak of someone “consenting,” it should be because someone has actually given the police permission for a search or seizure. Driving in the state of Wisconsin in no way represents consent to a blood test. Driving communicates nothing about waiving the warrant requirement. If one believes that police should have to get a warrant to perform a blood test on a DUI suspect, absent an exception, then the Court should enforce that requirement and not be mesmerized by the phrase “implied consent.”