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In The News

Thursday, June 27, 2019

The Supreme Court's Unconscious Blood Draw without a Warrant Decision: Much Ado About Nothing?

By Michael Nichols
Categories: Drunk-Driving

What is really troubling about the SCTUUS opinion in Wisconsin v Mitchell is that it accomplished so little and got the science, or the pharmacology of alcohol in the body so wrong. When alcohol enters your body it will enter it through the mouth, go into the stomach and gradually distribute through the blood stream and the liver, seeking out all the water in your body. The reason is that alcohol dissolves in water and so it seeks out water. Scientists call this "hydrophylic." The more food you eat, the more you engage in certain activities and other factors: the longer it will take for alcohol to be fully-absorbed after you stop drinking and you then reach the "elimination" phase.

Elimination of alcohol from the body is the whole idea behind dissipation. It is NOT true that every time you drive after drinking or are in the hospital after driving that alcohol is "dissipating" from your blood stream.

Justice Alito stated otherwise and it was based on a misapprehension of the science of pharmacology of alcohol and other drugs in the human body. In short, sometimes you are on the "way up" or "plateaued and you are not necessarily "always" dissipating alcohol.

In a 5-4 opinion of the United States Supreme Court, Justice Alito held that while the Rule of Law in McNeely v Missouri is that the constant dissipation of alcohol or "evidence" in blood does not, in itself, prove an exigent circumstance to get around the general search warrant requirement to obtain a blood sample, if combined with other pressing needs, an exigency can exist because of the dissipation of alcohol and a warrant may not be required. In the case of Mitchell v Wisconsin, Mr. Mitchell was unconscious and unable to give a breath sample and could not consent to a blood draw, because he obviously could not speak.

The test for a BAC exigency is “when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so a prior precedent in Schmerber v California controls: "With such suspects, too, a warrantless blood draw is lawful.”

Oddly enough, the Supreme Court technically sided with Mr. Mitchell, deciding that his case should be reversed and remanded to allow Mitchell an opportunity to show that “his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”

For the lawyers on the cutting edge of the latest in the law, contact Mike Nichols at the Nichols Law Firm, 517 432 9000 or

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.