The U.S. Supreme Court will decide soon whether police should be allowed to draw your blood while you are unconscious, without first obtaining a search warrant.

State of Wisconsin vs. Mitchell: Can The Unconscious Give Consent?

Specifically, the Supremes will decide whether your “implied consent” to breath/blood testing creates an exception to your 4th amendment right to be free from unwarranted searches and seizures if you are unconscious due to your inebriation. All states have implied consent laws, which mean that by granting you the privilege to drive on roads/highways, you have impliedly consented to take a breath/blood test if an agent of the State thinks you are DUI/DWI. And the states tend to believe that, even if you have fallen unconscious because of your alcohol consumption, that you have NOT withdrawn your consent to have your blood drawn. Implied consent laws do permit you to withdraw your consent, but it’s always in exchange for a penalty (like loss of the privilege to drive for a greater amount of time and/or lengthier mandatory jail sentence if convicted of DUI).

One Direction They May Take

Here is one way I believe the Supreme Court could conclude that an unconscious person has withdrawn his/her implied consent to an unwarranted search for breath/blood alcohol evidence.

So long as implied consent laws allow a person the right to withdraw consent (in exchange for a penalty), then blood draws on the unconscious cannot be viewed as an exception to the 4th amendment, for we do not give up our individual rights by going to sleep, going under anesthesia, or going unconscious.

“Consider this…A man and a woman are on a date, they have a lot of drinks, and then mutually agree to go back to her place to have sex. Upon arrival, she walks over and sits down on the couch. After hanging up his jacket, he turns around and sees her passed out on the couch. Does he still have her consent to have sex with her (while she’s unconscious)?”

Of course not. Why? Well, for one, she is totally incapable of saying “Stop, I’ve changed my mind!” Consent, whether implied or express, can be withdrawn at the whim of the consentor. If she has lost the ability to withdraw consent (by going unconscious), then by definition she has also lost the ability to consent to anything. An exception to that would be when she has expressly consented to being medically treated while under anesthesia or, when a medical emergency arises (gets knocked unconscious in a car accident) and she needs emergent care.

Cui bono? Who Benefits & Why It Matters?

In the first instance, the treatment provider has her express consent to perform the invasive procedure while she’s unconscious. In the second instance, the treatment provider has her implied consent to treat her (that’s one of the reasons why we have EMTs on call and 911 dispatch operators). So why, in this second instance, has the implied consent for medical treatment not been withdrawn if she’s unconscious? Because the invasive medical treatment about to be provided is for her benefit – not the State’s. If the invasive procedure is for your benefit (to save your life), we presume that you would want the invasive procedure performed for your benefit (unless you have expressly revoked it via a living will).

If the invasive procedure is designed to be used against you, for the State’s benefit, as evidence against you, then we must presume that you would not want the blood draw, that you withdrew your implied consent the moment you lost your ability to say “Stop, I’ve changed my mind!”

It’s your right to privacy; it’s your freedom from unwarranted searches and seizures – not the State’s.