Last week, the Supreme Court of the United States decided Mitchell v. Wisconsin. In this opinion the Court held that cases involving an unconscious driver “almost always permits a blood test without a warrant” under the exigent circumstances exception to the warrant requirement. Mitchell v. Wisconsin, ____ U.S. ____ (2019) (emphasis added).

The key to this holding is the word “almost.”

Mitchell does not reverse the Court’s prior ruling that there is no per se exception to the warrant requirement based on exigent circumstances. Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). In North Carolina, the Court’s ruling in Mitchell, must be viewed in light of State v. Romano, which specifically outlines when exigency does not exist despite the driver being unconscious. Id. 800 S.E.2d 644 (N.C. 2017).

Mitchell v. Wisconsin in Light of Missouri v. McNeely

In McNeely, the Court found that there is no per se exception to the warrant requirement simply due to the fact that alcohol is dissipating from a person’s system. McNeely, 133 S. Ct. at 1563 (“while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case . . . it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”)

At the end of the day, the only piece Mitchell adds to the exigency analysis puzzle is that a suspect’s unconscious state should be a strong factor in determining whether exigency exists.

Justice Thomas jabs at the holding of the majority in his concurrence by pointing out that their ruling ridiculously states: “exigent circumstances are generally present when police encounter a person suspected of drunk driving—except when they aren’t.” Mitchell, ____ U.S. ____ (Thomas, J. Concurring).

Mitchell v. Wisconsin in Light of Birchfield v. North Dakota

Not long before it’s ruling in Mitchell, the Supreme Court addressed the situation of an unconscious person suspected of driving impaired.

“It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2184-85, 195 L. Ed. 2d 560 (2016) (emphasis added).

Mitchell v. Wisconsin in Light of State v. Romano

Exigent circumstances as applied in a case involving an unconscious person have already been applied in North Carolina. In finding no exigency existed despite the fact that the Defendant was unconscious the North Carolina Supreme Court noted the following important facts:


  1. Multiple officers were present to assist in the investigation.
  2. An officer could have left the hospital to drive to the magistrate’s office which was only a few miles away.
  3. The charging officer was familiar with the warrant process and knew that it involved fill-in-the-blank forms that are not time-consuming.
  4. Magistrates were on duty and available during the relevant time period.

Romano, 800 S.E.2d at 646. The N.C. Supreme Court noted that despite the fact that the Defendant was unconscious “there is no dispute that the officer did not get a warrant and that there were no exigent circumstances.” Id. at 653.

Implied Consent: Mitchell and Romano

Mitchell also points out, as have many Supreme Court decisions, the validity and importance of implied consent laws. However, by applying the exigent circumstances exception in its holding as opposed to implied consent, the U.S. Supreme Court’s holding in Mitchell does not meaningfully add anything to its prior holdings regarding implied consent.

Romano specifically addresses North Carolina’s implied consent law.

“Whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Further, the State has the burden to prove that consent was, in fact, freely and voluntarily given. Consent is not voluntary if it is the product of duress or coercion, express or implied. A court’s decision regarding whether a suspect’s consent was voluntary is based on a careful scrutiny of all the surrounding circumstance and does not turn on the presence or absence of a single controlling criterion. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness.” Id. at 652-53 (internal citations and quotations omitted).

“To be sure, the implied-consent statute, as well as a person’s decision to drive on public roads, are factors to consider when analyzing whether a suspect has consent to a blood draw, but the statute does not create a per se exception to the warrant requirement.” Id. at 653.


Mitchell’s holding reinstates that exigent circumstances is a case by case determination but that a person’s unconsciousness is a factor that weighs in favor of a finding of exigency.