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If someone is brought to the hospital after an accident and that person’s blood is drawn for medical reasons, the results are admissible in civil or criminal proceedings to show his or her blood alcohol level or the presence of a controlled substance. No warrant is required—this is true regardless of consent. MCL 257.625a(6)(e).

This provision of Michigan’s implied consent law survived a 1990 constitutional challenge in People v Perlos. In Perlos, the Michigan Supreme Court held that when a blood draw is performed by hospital personnel for medical purposes, rather than at the request of an officer, there is no state action and the Fourth Amendment is not implicated.

But what happens if an officer requests a blood draw of an unconscious (suspected) drunk driver? The U.S. Supreme Court analyzed these facts this summer in Mitchell v Wisconsin. A plurality of the Court, led by Justice Alito, concluded that a warrantless blood test of an unconscious person who is a suspected drunk driver is almost always constitutional. The plurality acknowledged unusual circumstances in which this general rule might not apply and remanded the case to Wisconsin to consider these issues. Justice Thomas concurred but added that the rule should be extended to instances when the person is conscious. 

As Professor Dave Moran explained to me recently, the basis for the decision was somewhat unexpected. The justices granted certiorari on whether drivers consented to alcohol tests under Wisconsin’s implied consent law. Instead, the plurality held that unconscious blood draws were permissible under the exigent-circumstances exception to the warrant requirement. (Justice Gorsuch dissented for this reason.) The three-justice dissent led by Justice Sotomayor criticized the plurality’s application of this exception for multiple reasons, including Wisconsin’s concession that the exception didn’t actually apply in the instant case.

I asked Dave whether Mitchell could be logically extended to other offenses. He said that it might come into play in controlled substances cases. Something to watch for sure. In the meantime, it will be interesting to see how Michigan courts deal with MCL 257.625a and Mitchell.