U.S. Supreme Court Grants Review on Issue of Implied Consent

The United States Supreme Court granted certiorari a few weeks ago to consider whether a state statute authorizing the withdrawal of blood from an unconscious driver suspected of impaired driving provides an exception to the Fourth Amendment warrant requirement. The case, Mitchell v. Wisconsin, arose in Wisconsin, but the issue may sound familiar to practitioners in North Carolina.  Our state supreme court held in State v. Romano, 369 N.C. 678 (2017) (discussed here) that the warrantless withdrawal of blood from an unconscious DWI suspect pursuant to state statute when there was no exigency violated the Fourth Amendment. The Supreme Court of Wisconsin reached a different conclusion in Mitchell. The case provides the United States Supreme Court with an opportunity to tie up the ends it left loose in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016) by clarifying how implied consent laws authorizing blood draws without a suspect’s consent do or do not comport with the Fourth Amendment. Facts in Mitchell. Law enforcement officers began looking for Gerald Mitchell one May afternoon in 2013 after receiving a call that he was driving while impaired. An officer found Mitchell walking near a beach a short time later. Mitchell was “wet, shirtless and covered in sand.” State v. Mitchell, 914 N.W.2d 151, 154 (Wis. 2018). In addition, his speech was slurred and he “had difficulty maintaining his balance.” Id. Mitchell admitted to drinking before he drove. In fact, he said that he parked near the beach because he was “too [...]