28 states have laws similar to wisconsins. Here is aprils one hour opening argument in the case. Mitchell versus wisconsin. Mr. Hinkel. Mr. Hinkel mr. Chief justice, and may it please the court the state advances a bold and novel proposition here, that it can excuse itself from the Fourth Amendment warrant requirement simply by enacting a statute saying that some of its that its citizens have consented to a search. Here, that search is a blood draw, but theres no reason that similar statutes couldnt be enacted to authorize all manner of other searches. For example, a state could declare that driving on its roads constitutes consent to the installation of a gps tracking device on a persons vehicle, or consent to an officer scrolling through a persons cell phone if they happen to be stopped. Now this court has never approved a search on the theory that that a search that consent can be deemed by operation of law. And thats because, under schneckloth, consent is a question of fact. Chief Justice Roberts is it it doesnt strike me immediately as that horrendous to allow the officers to look, not through the cell phone, but to sort of calls, find out was this person calling somebody or talking to somebody at the time they, you know, ran over somebody else . Is that is that so obviously mr. Hinkel i dont know that its chief Justice Roberts is that so clearly something that they couldnt do . Mr. Hinkel well, i dont know that its more that its an equally intrusive search as opposed to a blood draw. Chief Justice Roberts yeah. Mr. Hinkel what im trying to express is that once we accept that a the simple existence of a statute can provide consent, then reasonableness doesnt really enter into the picture anymore. A a search thats based on consent is reasonable regardless of any other factors. If a Police Officer comes to my house and says, hey, id like to come in and look around, do you mind, and i say yes, it doesnt matter if he has any suspicion. So these are the kinds of situations that we find ourselves in if we permit that that a statute can bring about consent. Justice ginsburg how how how would it be if the statute simply said, if you dont consent lets say we have we now have a conscious driver if you dont consent, then we will immediately revoke your license and, when we try you for driving under the influence, we can tell the jury that you refused to consent to a blood test. Would that statute that statute wouldnt have a Fourth Amendment problem, would it . Mr. Hinkel under birchfield, no. Thats the whole thing of birchfield, that the states can impose that sort of condition on the decision to operate. Justice ginsburg what about the unconscious driver, who couldnt hear that notice . Mr. Hinkel who is incapable of having that conversation, is that Justice Ginsburg hes uncapable hes incapable of hearing what hes told, but, in the in in the case of the unconscious driver, could his license be revoked . Mr. Hinkel the wisconsin statute at issue here doesnt lead to that result. I dont see any constitutional problem with saying that it could be, but its just a fact that wisconsin statute doesnt permit that in this circumstance. The legislature could certainly remedy that. Now, regarding consent, this court said in schneckloth that the capacity for a conscious choice is the bare minimum for voluntary consent. Given that were talking about someone who is unconscious, thats a good enough reason for this court to reject the states consent theory. Justice sotomayor well, we let people give advance consent on any number of issues, including dnr, do not resuscitate consent forms, and, generally, they come into effect when youre not in a position to revoke. Why isnt this comparable . Mr. Hinkel that i mean, thats certainly true, Justice Sotomayor. Its not comparable because, in this instance, the state has never argued that mr. Mitchell or that any other person who operates on wisconsin roads has made that choice. In the case of a dnr, a person, you know, sits down and and makes a decision. Here, theres no indication that any decision like that was made to permit the search. Justice kagan do you think wisconsin could do that . Suppose, at the time you went in to get your drivers license, you had to sign something and it said, im im im agreeing that if im ever found unconscious, you know, im giving my consent now. Mr. Hinkel yes, i think thats a harder question. Its once we have knowledge and and some course of action that has been deemed to trigger a search, then it gets it starts to look more like what we commonsensically would think of as consent. You know, you knew this was going to happen if you did this; you did this. The problem with that analysis, though, is that, again, it opens it opens the world up in terms of what the state can the conditions that the state can put on different activities. And i think thats why this court, when its been invited to call sort of notice and then action regimes consent, has declined declined the request to do so. In the probation cases, both of those parolees or probationers had actually signed documents saying, i consent to this search, sometime before the searches occurred. And in both cases, the government asked the court to say, well, hey, they consented. But the court didnt do so. It decided those on the basis of a very limited expectation of probation. Chief Justice Roberts although its its you know, ignorance of the law is no excuse. And if the law says if youre going to operate a Motor Vehicle on our highways, you you impliedly consent to this. And so people are supposed to know the law, so they know if they drive, that their will be deemed to have consented. Why do you need to have them actually sign a piece of paper, as i guess some states do, but mr. Hinkel sure. The maxim ignorance of the law is no defense is is really another way of saying that we typically, in criminal statutes, dont make knowledge of illegality an element of the crime. Criminal statutes, of courts of course, define crimes, and they do so by operation of law. Thats a very different thing from saying that a the existence of a statute can, by by means of legal presumption, bring about the factual situation of consent in the individual. Justice alito well, these laws have have been labeled implied consent law, but implied consent laws, but its kind of a an unusual type of consent, and maybe what theyre really about is attaching a condition to the privilege of driving, so the state says you want to drive, this is a very dangerous activity, it causes thousands and thousands of deaths and serious injuries every year, and if you want to engage in this activity, you have to bear certain consequences that are very closely related, reasonably related, to to traffic safety. Now, if its analyzed that way, what would be wrong with that . Mr. Hinkel i agree with you, Justice Alito, that that is a more sensible way doctrinally to look at this than as consent. What would be wrong with it, some of the things that this court said in birchfield. First and birchfield, of course, was applying the exigency exception rather than a reasonable condition, but the analysis is essentially the same. Its a balancing of privacy interests versus government interest in the search. And as in birchfield, the state has perfectly adequate means, other than a warrantless blood draw, to vindicate its interest in in catching and punishing drink drivers. First, of course, there is the availability of the warrant, which this court has repeatedly recognized. Warrants are increasingly available, and available in a timely way in a lot of these cases. And, second of all, if for some reason they are not available in a particular case, we have resort to to the exigency exception. So the case is the state has pointed to no situation, whether it be a real case that actually happened or a hypothetical, in which this regime of get a warrant if you can, and if you cant, you dont have to, is insufficient to vindicate its interest in getting Justice Alito well, its very its easy to say, well, you can always get a warrant and at 2 00 on christmas morning. You can find you know, every state can find a prosecutor and wake up some judge to to grant the warrant. And, you know, maybe thats true everywhere. Maybe its not true everywhere. In the case in a case like the case of your client, what purpose is really served by that, where they come upon somebody who is has not been in an accident, and theres no other plausible explanation for his condition, other than having taken other than having drunk and or taken drugs. What what accounts for that . I mean, what what what purpose, really, is served by this warrant requirement . And in the case of the case of somebody whos involved in a very serious accident and is unconscious, how is a magistrate on the phone supposed to be able to distinguish between the possibility that this person is unconscious as a result of the accident or the possibility that the persons unconscious as a result of of imbibing alcohol or drugs . Mr. Hinkel to respond to the first part of your question, Justice Alito, of course, the two elements typically of drunk driving are are drunkenness and driving. And in in this case, the question was whether mr. Mitchell had driven. I mean, it was fairly apparent that he was intoxicated. So that is a and thats one situation in which you may well get differing various factual scenarios in which we have very good evidence that the person has been driving, such as that they are discovered, you know, passed out in the drivers seat, or we may have them some distance from their vehicle and were not sure whether theyve driven. And thats exactly the kind of decision that, you know, the officer could say, well, i have an eyewitness who puts him in the drivers seat. That would be a very different case than, eh, i think, you know, his car is nearby and hes drunk, so i think he was driving. And thats exactly the kind of decision that the constitution reserves for the neutral magistrate. Speaking more generally, taking a step back to, i guess, the second part of your question, in the circumstances of an unconscious driver, first of all, officers cant perform a lot of the standard field sobriety tests, which, in birchfield, the opinion discussed, hey, these are the basis of probable cause is going to be sort of the subjective observations, you know, he couldnt walk a straight line, he couldnt say the alphabet backwards, et cetera. Again, i think, with an unconscious motorist, you have a greater amount of factual variability. It could be that someone was in a crash and you might have great evidence of intoxication. They might have an open bottle of vodka next to them. You might have a faint smell of alcohol. You might have no no evidence of intoxication at all. So, again, thats the fact that the fact that probable cause might vary, as the 18 states amicus points out, or might be hard to establish isnt a reason for a warrant exception. Its a reason to apply the warrant requirement. Justice breyer if somebodys there lying down, hes unconscious, smells a little of alcohol perhaps, wouldnt the policeman take him to the hospital . Wouldnt that be the first thing that that hed think of . Mr. Hinkel yes, i would certainly hope so. Justice breyer all right. So, if he takes him to the hospital, theyre going to do various tests on him. So whats the policeman supposed to do . He doesnt know about the varying degrees and whether its this or that or a sniff here or a bottle there. He just thinks hes an unconscious person, so he takes him in. Now what . Whats supposed to happen then in your view, and when . Mr. Hinkel if the officer believes that there might be evidence of a crime in his blood, is that the hypothetical, or Justice Breyer im saying taking your case, but all the officer knows is somebodys lying here unconscious. Mr. Hinkel uhhuh. Justice breyer and in your opinion, whats supposed to happen . Mr. Hinkel in that opinion, i mean, if if theres a medical emergency that an officer comes upon, of course, they should make sure that theyre Justice Breyer no, isnt that always going to be true, i mean, or almost always . Hes lying here unconscious. Mr. Hinkel yeah. And that Justice Breyer take him to the hospital. And and now the question would be, well, will the hospital do a blood test on him . Normally, they do probably. Mr. Hinkel i would agree with that. Justice breyer all right. So so so whats a policeman supposed to do by way of calling a magistrate . I mean, whats whats he supposed to do . What i worry about, people the opposite of your side, it seems to me, is people will get mixed up. So you have to tell them fairly clearly what theyre supposed to do, particularly the officers. So id like you to say what theyre supposed to do. Mr. Hinkel the warrant requirement in the Fourth Amendment typically requires officers to make these sorts of judgments about Justice Breyer no, i didnt ask that question. I want you to tell me, who is pretending to be an officer mr. Hinkel uhhuh. Justice breyer what am i supposed to do when i get to a car and theres someone there lying unconscious . Other people may or may not be hurt. I have to say that very often in my experience this is a result of drunk driving. I look around. I dont see any other cause. What am i supposed to do . Mr. Hinkel well, certainly, youre supposed to get the person to the hospital. Thats Justice Breyer of course. Mr. Hinkel its not our position that you shouldnt. Justice breyer no, of course. Now what . Mr. Hinkel well, if you have evidence of a Justice Breyer no, no, dont say if. I just put the case because i want you to tell me what im supposed to do. Mr. Hinkel if theres no Justice Breyer you can make up whatever you want in situations, but just tell me as if i were this officer who wants to know. Mr. Hinkel if theres no indication that a crime has been committed, then there would be no justification for a search. Justice breyer well, we have a guy lying on the ground. Hes now what do i have to have . Mr. Hinkel i would think you would have to have some reason to think that that was due to intoxication, due to an intoxicated drunk. Justice breyer some reason . Okay. Now, so i add theres a whiskey bottle. Now what . Mr. Hinkel that seems like a much clearer case of probable cause. Justice breyer all right. Then now okay, theres a whiskey bottle. Now what am i supposed to do . Mr. Hinkel youre supposed to call well, youre supposed to arrange, first of all, for medical care. Justice breyer yeah. Mr. Hinkel and if, again, you believe that theres probable cause, youre supposed to call up the magistrate and say, i have probable cause to believe this person is intoxicated. Justice breyer so you bring him to the hospital . Mr. Hinkel correct. Justice breyer the intern or the emergency room says, we better take care of him. Were going to take a blood test. So they often do. Mr. Hinkel i agree. Justice breyer what does the officer say . Mr. Hinkel again, i think, if the officer wants access to that to that blood as evidence, then he needs to either get a warrant or have the magistrate say Justice Breyer does he say to the intern, dont do it until i can find the find the magistrate . Mr. Hinkel no, theres no reason that there cant be more than one blood draw. It doesnt have to interfere with medical care. And, in fact Justice Breyer okay. Mr. Hinkel it probably shouldnt. If, in fact, medical care is keeping the officer from from pursuing a warrant, thats a textbook case of exigency. Justice sotomayor i was going Justice Breyer hmm. Okay. Justice sotomayor to ask your adversary this, but maybe you know the answer. I know hipaa does not provide for the release of those information of that information to Law Enforcement. Does hipaa also prevent a subpoena . Mr. Hinkel yes, Justice Sotomayor. Actually, i mean, really, the question is those those questions, or the answers, those questions are sort of percolating up through the courts now. In general, the cases that ive seen, and i cant cite them, but they you know, there have been instances in which a prosecutor sometime after the fact wants to subpoena the blood from the hospital or the results of the blood test. And i think the correct rule that ive seen in some cases is, yes, if you can get judicial approval of that. What a person generally does, as you as you point out with hipaa, has an expectation of privacy. Even if theyre sharing information with a hospital, that doesnt mean that theyre sharing it with the whole world, including Law Enforcement. Justice sotomayor but it doesnt mean necessarily that the courts are precluded from subpoenaing that information . Mr. Hinkel oh, no, certainly. Certainly. But, again, there, you have judicial involvement. Justice sotomayor so lets go back to the hypothetical so i understand your position. Someones sitting after an accident unconscious. Theres no smell of alcohol. Theres no open bottle. Theres nothing else to suggest alcoholism. The first thing you do is you call and you go to the hospital. Doctors say to you its going to take three hours for the blood test to come back. Would exigent circumstances, because wed suggested as such in birchfield, in that situation, would exigent circumstances be different for you saying, well, draw the blood because we need to preserve the evidence or and why wouldnt that hold true if the officer knows its because of alcohol . Here, they were told he was drinking. He admitted he was drinking. They waited an hour and took him to the station, didnt do a breathalyzer. Maybe they couldnt. I dont know. But only took him to the hospital after he was unconscious. Is that why is that a difference . Mr. Hinkel if i understand the hypothetical, what youre proposing is would be an obstacle to them getting a warrant in time. And and that, again, is is essentially the definition of exigency. Justice sotomayor that would be the first hypothetical. Hes unconscious. They dont know why. His blood can dissipate and he can say itll take three hours mr. Hinkel yes, that would be that would be, i believe, exigent circumstances. Justice sotomayor the result. So how but why is that different than here, where, yes, they waited an hour plus, they talked to him, they put him in a cell, and he went unconscious . Whats the factual and legal difference between the two things . Mr. Hinkel the legal difference is that exigency, as as it was described in mcneely, involves some obstacle to getting a warrant or something that would make timely getting a warrant impractical. Justice sotomayor they knew he they needed the warrant when they arrested him. If they needed the evidence, then they didnt have to wait an hour to try to get it. Mr. Hinkel well, and there theres just no indication that that there was ever a thought of a warrant. I mean, theres no indication whatsoever there was any impediment to them getting a warrant. Chief Justice Roberts well, thats the i mean, this discussion has highlighted, i think, the reason you have these laws. I mean, its varying fact patterns with respect to probable cause, varying fact patterns with respect to exigencies, and the whole point is you dont want to have to go through all that when it makes sense, according to your friends on the other side, to say, look, heres heres this is a right its its not a right; its a privilege to drive on our roads. Its a very dangerous thing. If youre going to do it, you have to allow us to, you know, check bloodalcohol levels if youre in an accident. You have to agree to that. I mean, thats the whole point. Its to avoid all these these issues at a time when exigency is certainly a common aspect, given dissipation of alcohol in in in blood. So, again, i guess whats maybe ill go back. Did i understand your answer about actual consent . In other words, you go down to the dmv. When they take your you know, your drivers test, they say heres a form, we need you to sign this. And the form is, i consent to have my blood drawn. Thats actual consent. Is there anything wrong with that . Mr. Hinkel yes, theres something wrong with it, i mean, because, under schneckloth, we analyze consent under the totality of the circumstances. One factor isnt determinative. I agree, your honor, that if we have that initial agreement, it starts its certain thats certainly a heavy factor in the schneckloth balance. Chief Justice Roberts so what would count mr. Hinkel but there chief Justice Roberts whats on the other side . Mr. Hinkel i mean, certainly, the lapse of time. I mean, a person could chief Justice Roberts so, if he signed it two years ago, it doesnt count anymore . Mr. Hinkel i im willing i i i will allow that again, that those those hypotheticals look a lot more like consent than what happened here. Chief Justice Roberts but does that mean its okay . Mr. Hinkel i dont think its okay, but you dont have to agree with me to chief Justice Roberts well, no, but i do have to have a reason you dont think its okay. Mr. Hinkel because, again, when the state conditions, you know, participation in some activity on your consent to give up some part of your Fourth Amendment chief Justice Roberts right. Mr. Hinkel rights, it becomes very difficult to see where the limit to that is. Chief Justice Roberts yeah, but this is not i understand your argument, who knows where this will stop, and i guess the answer is itll stop with, you know, a license to drive on the roads. Just because they do this, which has been a very commonplace practice, it doesnt mean that theyre going to say, you know, walking on our sidewalks is a privilege, and if you do that, were going to imply that you consent to be, you know, searched whenever we want to. I mean, that parade of horribles doesnt seem to me to be that persuasive. Mr. Hinkel the the problem with again, the problem with using consent as the as the way to to analyze this is that consent doesnt take into account whether the conditions are reasonable or not. And for all the chief Justice Roberts well, the only conditions i mean, to belabor it, the only conditions you need to know about are the ones that i gave you. Youre perfectly compos mentis, youre taking your drivers test, it goes on, the person says here, read this carefully and sign it if you want. If you dont want to sign it, i guess we dont have to give you a license. What more circumstances do you need to know . Mr. Hinkel i agree with your honor, in that circumstance, its very likely that the schneckloth test would be met. But thats not the circumstance that we have here, as as im sure youre aware. Justice sotomayor dont you have an an unconstitutional conditions argument . Mr. Hinkel well, yes, i think there would be an argument of unconstitutional conditions. Justice sotomayor and dont you have an argument that the state cant extract a condition thats more invasive than reasonably necessary for its needs . Mr. Hinkel i think those i think Justice Sotomayor and a blood draw is different than than searching somebodys home . Mr. Hinkel i Justice Sotomayor intrusive as searching someones home is, invading someones body is a different level of intrusion. Mr. Hinkel i agree with you, and thats why i think its chief Justice Roberts well, youve come up youve come up with some good arguments there, but [laughter] but i guess i would say in terms of the unconstitutional conditions thing, its been pretty well established, i think uniformly, that driving on the roads is considered a privilege and not a right, to which certain conditions can can attach. And i so, again mr. Hinkel i i chief Justice Roberts go ahead. Mr. Hinkel if i may, i agree with your honor that conditions can be attached to to operating on the roads. And i i would also say that this court in birchfield established the outer limit of what conditions can be attached when it said that that criminal penalties that were associated with refusing a test would be unconstitutional because theyre unreasonable conditions. The position of the state takes that quite a bit further and says were not going to charge you with a crime for refusing. We simply arent going to give you the opportunity. Justice breyer well, let me go back for a second if i can. I was conceding to you there are dozens of good legal arguments. The law in this area is filled with complication. And so thats why i wanted to focus on a simple thing, i thought, the policeman. And i dont see why you perhaps you want to tell the policeman this, officer, if you see somebody unconscious in the car or not, get him to the hospital, okay . And if theyre going to take a blood test, which they probably will be, fine. Let them. Of course. But if you want to use that result in your case now thats the question yeah, you can. And why . Because, otherwise, what youre going to have to do, you get to the hospital, hes taking the blood test, you phone up a magistrate, you say hes there under a blood test anyway, you go through a certain amount, there was a whiskey bottle nearby and so forth, the magistrate says yes or no, hes going to have that blood test. I mean, so what . The simplest thing. Policeman, if they take him to the hospital, which you should do, and they give him a blood test, you can use it. Thats a reasonable thing to do. All right. Now what is your answer to that not in terms of this law over here or that law over there . Mr. Hinkel whether its reasonable simply to say that police can always use the blood . Justice breyer yeah, if they take the test, if he goes to the hospital, so forth. Mr. Hinkel if a nurse or or a doctor Justice Breyer yeah. Mr. Hinkel draws the blood for medical reasons, i understand. If i may answer the question . The difference is that when the hospital is performing a blood draw on a person, its for their benefit. Its we have actually a related but distinct concept called implied consent in the medical setting because we imagine that everyone who was in this circumstance would want medical treatment, and so, if they were capable of agreeing to it, they would. We dont have that same presumption when it comes to blood draws. People are not presumed to consent to things. Chief Justice Roberts thank you, counsel. Ms. Jurss. Ms. Jurss thank you, mr. Chief justice, and may it please the court. The fundamental question is reasonableness. Every state holds drivers to a bargain to comply with testing should police have probable cause of intoxicated driving. Wisconsin, like over half the states in the country, reasonably recognizes that a driver should not evade that bargain by becoming the most dangerous of intoxicated drivers. An unconscious driver has made all the choices that put other lives at risk but then, through no fault of the government, has put himself in a position where he cannot make further choices. As medical care for him must be a priority, and as that medical care will almost invariably involve a draw of his blood to test for intoxicants, a warrant offers him only slight protection but guarantees Law Enforcement distraction during a criminal time or a critical time. Justice breyer no, no, hes just take him to the hospital. See, his last answer, i thought, was pretty good. He said take him to the hospital. Have the blood draws. Okay. But, if you want to use it in evidence, call up the magistrate and say magistrate, i want to use this in evidence, i want to is that okay . And by doing that, youre not really interfering with the medical treatment. Youre all youre doing is asking him to make another phone call. Now whats is there anything wrong with that answer . Ms. Jurss there are potential problems with that, and we see that playing out. So, once weve once hes at the hospital, if Law Enforcement excuse me medical staff will want to draw his blood quickly because thats how theyre determining how to treat him. And so, if, at that point, Law Enforcement can say, instead of drawing x amount of blood, please draw a little bit more blood to be used for Law Enforcement purposes, then were talking about one blood draw all at that time. If, instead, a Law Enforcement officer has to get on the phone and call the magistrate, even if its not a tremendously significant delay in terms of time, whats happening is then interim medical care may be offered. There could be medication thats given. Medical staff may be wanting to provide other treatment, such that then, once that warrant is obtained, the person may may not be in a position where a second blood draw could happen. And then, at that point, as my friend acknowledged, were potentially talking about two needles instead of one. And even if we can obtain a sample at that time, if Law Enforcement can, theyre put then in the difficult position at times of having to try to interject themselves into additional medical care thats being provided. Justice kagan ms. Jurss, if i could, just to understand your argument, i mean, usually youre exactly right, that reasonableness is the core of the Fourth Amendment. But usually we say well, whats reasonable is you get a warrant ms. Jurss uhhuh. Justice kagan or you fall under one of the established, wellacknowledged, wellunderstood, historic exceptions to the warrant. Ms. Jurss uhhuh. Justice kagan which exception are you saying we fall under, or are you saying that it kind of doesnt matter, we could do the reasonableness inquiry freestyle . Ms. Jurss so this court could decide it under one of two theories either consent or as a condition of driving, which would fall under a general reasonableness balancing test. And, ultimately, under either of those theories, its going to come back to reasonableness, because, as this court acknowledged in birchfield, reasonableness sets the boundaries of this type of implied consent scheme. Justice kagan well, start with the consent. Do do you think that there is actual consent here . Ms. Jurss yes, its a special application of consent, but it still is consent. Justice kagan how is it consent . Ms. Jurss because the person has, through his voluntary actions, demonstrated his agreement with these conditions. And so, when we look at consent and the schneckloth consent, what were ultimately talking about is a voluntary decision, meaning not coerced by the government, and there doesnt have to be a knowing waiver. And so, here, both of those things are met. His actions of driving with probable cause then for police to believe he was driving while intoxicated are voluntary actions that hes taken. We know that this has to work and move a little differently because, in most consent scenarios, we wouldnt be able to impose Civil Penalties for someones decision to say no. And we also know that in most consent scenarios, someone being intoxicated would weigh against potentially a finding of voluntary consent, but thats all were dealing with here. Justice kagan i guess this isnt consent in you said it a little bit differently but it wouldnt seem as though this is consent in the normal way, where its like i understand the choice im making, i agree to that choice. Theres nothing to say that mr. Mitchell or anybody in his position understood this choice he was making. Right . Ms. Jurss not Justice Kagan i mean, if he had signed something at the dmv, you might have an argument, look, theres the manifestation of consent, his signature on a page saying that he agreed to a blood test. But theres nothing like that here, is there . Ms. Jurss no, theres not. I would note that wisconsin does have a statute that demands that as part of the knowledge test for obtaining drivers licenses, there are questions related to our implied consent laws and intoxicated driving, but we dont have any specific requirement when signing for the drivers license. But, to go to your point, it is its an atypical type of consent because it has to be, because we are only and exclusively dealing with intoxicated people. So the normal, what i would call the typical atthescene consent that you might expect in other circumstances simply cant work in this context because we are only dealing with intoxicated people. And so it makes sense to evaluate his actions while hes driving because thats when hes making all of the decisions that are putting other peoples lives at risk. Justice sotomayor now the problem that i have with this implied consent is i take the road. Ms. Jurss uhhuh. Justice sotomayor i should know the law. Ms. Jurss uhhuh. Justice sotomayor im guilty of violating the law if i drive intoxicated, whether with alcohol or drugs. All right . So that amount of knowledge is selfevident and everyone should know it and they cant plead ignorance of the law. Ms. Jurss right. Justice sotomayor this is not quite ignorance of the law. This is something substantially different because youre talking about not ignorance of the law but knowledge that your body can be invaded by the police to secure evidence to prove you drove intoxicated. And we go back to the presumption that Justice Kagan spoke about, which is a presumption that youre going to have a warrant if you think ive committed a crime before before you can you can invade my privacy. You have welldefined exceptions, exigent circumstances. You say there were none here. Youve stipulated to that. And now youre talking about implied consent. Thats really not consent in my mind. If i dont think its consent, what are you left with . Ms. Jurss if if you dont believe its consent, its still a reasonable condition of driving. Justice sotomayor but weve always said that reasonable how can it be reasonable when you dont know that that invasion is necessarily part of the law . You know that not driving intoxicated should be part of the law. If its not, everybody understands that. But why would you know that invading your blood is . Ms. Jurss well, i think its reasonable to expect, given that every state in the country has had implied consent laws for decades, which are specifically designed to test for evidence of intoxication, i think its reasonable to expect Justice Ginsburg but its a fiction, isnt it . Its not consent, no matter how much you call it implied or presumed. And its typical of the original nonresident Motor Vehicle statutes. They said, if you drive on our roads, then you will be deemed to have consented to appoint a secretary of state as your agent, and in time, we came to appreciate that that is not genuine. Ms. Jurss uhhuh. Justice ginsburg it doesnt mean that you cant say you can drive on our roads. You have to answer for any damages that you cause. But we dont use this presumed consent anymore because it is a fiction. Its the legislature has consented to have this thing happen. Its not the person who is arrested. Ms. Jurss and so, if this court wishes to look at it not through consent but as a condition of driving, its still a reasonable condition. And as to your question, Justice Sotomayor, why would this person expect it, for the unconscious driver in particular, he has every reasonable expectation that he will be facing bodily intrusion to test for evidence of intoxication. So he, more than other intoxicated drivers, has put himself in a position where the reasonable expectation is he will be taken to a hospital and there will be testing of his blood. Justice gorsuch counsel, im not sure he expects much of anything at that stage, but i i just have kind of a fundamental state law question for you. Ms. Jurss uhhuh. Justice gorsuch weve been proceeding on the assumption that that the state law operates to create implied consent or its a condition of driving. But has actually a majority of your Supreme Court ever so held . As i understand it, there were three justices who held that that is, indeed, how the law works, as youre arguing, but only three justices. And two others proceeded on exigency and treated it on that basis. And a number of justices have suggested that it isnt an implied consent statute at all but proceeds as a number of other states do to say, well, consent or no consent, if you fail to comply, there are collateral consequences. You may lose your license. So weve been proceeding on an assumption here that i just wonder how sound that presumption is about the nature of of state law. So can you advise us on that . Ms. Jurss your honor is correct that it was a threejustice plurality in this case that upheld this search under consent grounds. The two other justices, just as one point of clarification, recognized it as a valid search incident to arrest. Justice gorsuch im sorry, i misspoke. Search incident to arrest rather than exigency. But but you take my point. We dont we dont yet, i i believe, have a Majority Holding from your court as to the nature of this statute for purposes of state law. So how are we to assess it as a matter of u. S. Constitutional law . Ms. Jurss well, i think your honor and this court may still recognize it reasonably at under the Fourth Amendment as a form of consent or, if this court doesnt wish to do that, as a reasonable condition of driving. Justice gorsuch but we normally we normally take state law as its given to us. We are not great interpreters of state law. We may think were pretty good at a lot of things, but but were not the last word on state law. And we normally defer to state authorities on that, or are supposed to, and then assess how it how it proceeds under the federal constitution. If were not sure what the state law is here, what are we supposed to do . Ms. Jurss well, i would say that a majority of our court has recognized that a blood draw from an unconscious person is a reasonable search. And there at the wisconsin Supreme Court, there was discussion of both consent and search incident to arrest, as i mentioned, but i think there is sufficient ground here for this court to affirm it as reasonable. Though if this court should disagree and say that in some way the wisconsin Supreme Court hasnt provided that clarity, this court would could remand for further clarity, but i think we have that here. Justice alito but is there a way chief Justice Roberts how do we remand for i mean, you know, theres certification and all, which is i dont say usually but often doesnt quite work out the way you hope. But we already i mean, they would just give us another 32 opinion. Ms. Jurss and this was the second case from the wisconsin Supreme Court where that happened. And so were certainly asking for this courts chief Justice Roberts but im not faulting them for that. It happens, but ms. Jurss right. Chief Justice Roberts but it doesnt seem that it would help us with our particular conundrum. Ms. Jurss we would agree. And we agree that there we assert that there is enough here for this court to decide based on the wisconsin Supreme Courts rationale. Justice alito is there any doubt about what the Wisconsin Law does . Theres disagreement on the state Supreme Court about the the theoretical basis for the decision in this case, but is there any doubt that Wisconsin Law says that if you drive on our roads, and a Police Officer has probable cause to believe that you were driving under the influence, and you were unconscious, that the police that the police may, without obtaining a warrant, get a blood sample from you . Ms. Jurss there is no doubt of that. Petitioner Justice Ginsburg the the main rule, i think you would recognize, is that if youre going to seize blood or anything else from a person, you should get a warrant, with with exceptions. One thing that we take into account is, how difficult is it to get a warrant . And in this case, we are we were told that in wisconsin, magistrates are available around the clock by phone or by email, and often its only it takes only 15 minutes. Is that the case . Ms. Jurss so it varies from county to county across wisconsin. I would say, on the fastest end, youre looking at 15 minutes, though sometimes its half an hour, 45 minutes to an hour. At this point, my understanding is that most counties in wisconsin are using a variation of telephonic warrants, though that still requires that if a Law Enforcement officer and the judge do not have duplicate if the judge does not have a duplicate copy of the warrant in front of him or her, the officer will have to read the warrant verbatim to the judge. Justice kavanaugh does every county in wisconsin have a judge whos on duty 24 7 for these purposes or at least on call 24 7 . Ms. Jurss i dont know for sure with every county, but i think the common the common practice is to have an oncall judge. But what an important Justice Sotomayor could you have an issue Justice Kavanaugh that one of the Justice Sotomayor it it it im sorry. Justice kavanaugh go ahead. Justice sotomayor it seems to me that why did the officer wait to take him to the precinct . Meaning he didnt black out for an hour. If he thought that getting proof of this crime was critical, why wasnt he calling for a warrant as he was driving to the precinct, or why didnt he go straight to the hospital . Im a little bit confused as to what was in their mind. Ms. Jurss uhhuh. Justice sotomayor i think what was in their mind is we either get consent, and if we dont, theyre going to suspend his license anyway, and its only convenient for me now that i have to take him to the hospital to take the blood draw. Ms. Jurss so the officer in this case first took him to the Police Station because he wanted to first offer the lesser intrusive breath test. So he took him there to do a breath test. But then it was at the Police Station that mr. Mitchells condition really began to deteriorate. He was having a hard time keeping his eyes open and head up. So it was at that point that then the officer, recognizing that, said nope, weve got to get him to the hospital. Its an eightminute drive to the hospital. And thats where then the blood draw ultimately happened. And so one of the things i think thats important to keep in mind here is that Law Enforcement officers with an unconscious person are going to be confronted with at least one person who needs Urgent Medical care. And so we believe its important that Law Enforcement have clarity of a rule that says that they may be able to focus on getting that person that medical care, and then, again, once the person is at the hospital, almost invariably this testing will happen anyway. So the warrant for the unconscious intoxicated driver is offering little meaningful protection but is then going to take away from Law Enforcement resources and, as i mentioned, could potentially jeopardize then the legal blood once its drawn. Justice kavanaugh so that maybe answers a question i had, which is what are the practical problems with getting a warrant . Ms. Jurss uhhuh. Justice kavanaugh and maybe you just said that delaying medical care while youre getting a warrant is that what youre saying . Ms. Jurss thats a Justice Kavanaugh because youre not transporting the person right away . Or at least just can you spell out ms. Jurss sure. Justice kavanaugh maybe ill just ask it generally. What are the practical problems, in your view, with getting a warrant in this class of cases . Ms. Jurss sure. So if Law Enforcement has to be distracted at the scene and figuring out whether you can get a warrant is already something thats going to take some time. And so, for Law Enforcement, if they have to contemplate that, its potentially taking away time and resources from making sure that person gets medical care; if theres a crash thats happened, tending to the scene of the crash. And then, once were at the hospital Justice Kavanaugh in some of these situations, i assume itll be a single officer . Ms. Jurss some of these situations, it will be a single officer. And so that officers attention should be able to be undivided on ensuring that that person gets the medical care he needs. And then, once were at the hospital, a delay between the medical draw of the blood and the legal draw of the blood can potentially jeopardize the results if theres interim medication thats been offered or, if then, once a warrant is obtained, the person is receiving other medical care that would prohibit a second blood draw from happening. And so, given that, again, this person is in all likelihood going to be experiencing the intrusion of a blood draw, requiring Law Enforcement in those circumstances to obtain a warrant is not really offering him the protection against the intrusion. Our statute has a probable cause requirement built into it, so he can always challenge probable cause. And, again, the statute also limits the scope, right . So this can only be testing done for evidence of intoxication. It has to be done by a medical professional. Justice kavanaugh i assume most of these cases or at least many are cases where theres been an accident . Ms. Jurss yes, youre correct. One of the other things Justice Kavanaugh do you have any sense of the numbers in wisconsin on that . Ms. Jurss i dont have the numbers of the breakdown of car crash versus other circumstances. My understanding, though anecdotally, is that most of these are car crash cases. And one of the other things that were seeing is a dramatic rise in the instances of drugged driving, so particularly with regard to opiates and unconsciousness as a direct effect effect of excessive opiate usage. For example, according to the governor Highway Safety associations 2016 report, 16 percent of fatally injured intoxicated drivers tested positive for opiates. And so were seeing those numbers go up. And, in fact, heroin and other drugs, the actually they actually dissipate faster from the blood stream than alcohol. And so, given that increase, particularly with the unconscious person, and given that, as my friend noted, the unconscious Justice Sotomayor that sounds like an exigent circumstance argument, which you stipulated against in seeking ms. Jurss so there there may, in many of these cases, be exigent circumstances, but the question should not just simply be one of time because, as this court recognized in kentucky v. King, theres theres nowhere in the constitution that says that the Minute Police have probable cause, they need to drop everything and get a warrant. And that should be particularly true where we know Law Enforcement is going to be confronted with someone who needs Urgent Medical attention and, again, he hasnt withdrawn his implied consent. So Law Enforcement has every reason to believe that he is continuing to agree. Justice sotomayor why why do you the problem im having with your argument is i dont know where you get the implied consent from. I assume theres none. Ms. Jurss okay. Justice sotomayor if there is none for the reasons weve discussed, then you are back to exigent circumstances or some other recognized exception. You say incident to arrest. Thats a close call given the language in birchfield. Whats left for you . Ms. Jurss so general reasonableness in the same way that this court has applied it in maryland v. King and in other a number of other Justice Sotomayor well, what maryland v. King said was that an alcohol swab of your mouth ms. Jurss uhhuh. Justice sotomayor for purposes of identification, not for purposes of proof at trial but for purposes of identification, was not sufficiently intrusive to require a warrant. Thats what maryland v. King said. But birchfield said the intrusion into a body is something else. Ms. Jurss well, even in birchfield, this court said that, where theres been no clarity from the founding, it looks to reasonableness, and this court looks to reasonableness. And, again, were back to the balancing of the governments interests and the individuals privacy interests. And for the unconscious, intoxicated driver, we have even more so than for other intoxicated drivers a compelling interest in obtaining that evidence. This will be the blood evidence will be the only way to definitively prove his intoxication one way or another. We know its more compelling because we have the need for Law Enforcement to be able to focus on matters other than obtaining a warrant, i. E. , his care, and the individual has placed himself in a position where he has a lesser expectation of privacy against this Justice Ginsburg suppose ms. Jurss precise type of intrusion. Justice ginsburg suppose he had a card on his windshield that says if im unconscious, i do not consent to a blood draw. [laughter] ms. Jurss that that could very well make a difference, because, if were thinking about it through the lens of what ill call typical consent, if an officer objectively perceives a withdrawal of that consent, then the state may no longer proceed under his under the theory of that hes offered consent. He may always withdraw it. Chief Justice Roberts well, there may not be consent, but youd have pretty good evidence, wouldnt you . Ms. Jurss pretty good chief Justice Roberts i mean, you have a card saying if hes anticipating being unconscious while hes driving a car. [laughter] ms. Jurss well, that would certainly be helpful. That would certainly be helpful. But so, again, your honor, Justice Ginsburg gets to an important point here, that even with the unconscious person, its still a presumption. Unconsciousness with an intoxicated person is not a static state. Right . This is one person. His condition may change. And so, if prior to his blood being taken he explains, i do not want a blood draw taken, then we may no longer proceed under his implied consent. If he regains consciousness prior to the blood draw being taken and says, i do not consent, then we may no longer proceed under his implied consent. Chief Justice Roberts well, thats the i mean, thats actually the question presented, is how to deal with an unconscious person. To what extent do you think the ability to withdraw the consent that was given, and i mean, call it implied consent, im not quite i dont quite understand why its not consent if its a condition ms. Jurss right. Chief Justice Roberts upon driving the automobile. So, if you have that, the validity of that, to what extent does it depend on the ability to withdraw . Because thats the thats the problem here, of course, is the unconscious person cant withdraw at the moment. Ms. Jurss right. So that exchange that wisconsin, like most states, has with the conscious driver, where we read what ill call the pretest advisement, is not in any way a request for consent. The person has already consented. What it is, is an explanation that this testing is about to happen. And we explain to the conscious driver, because we realize when he hears that this test is about to happen, he may not like it and he may withdraw his implied consent. We, therefore, further explain the ramifications that will follow if he withdraws it, again, to incentivize the consent. So that exchange is not in any way constitutionally mandated, and it doesnt in any way apply to the unconscious driver. What that is designed to do is prevent confrontational encounters with Law Enforcement because, again, were dealing with intoxicated people. And so perhaps a helpful analogy is thinking about a tsa agent at an airport, right, the person has gone through security. Theyve gone through the body scanner. And now the agent has seen something that warrants a patdown. The agent is not just going to walk up to that person and start touching him or her without saying anything. Right . Theyre going to say the agent will Say Something to the effect of im about to pat you down. Okay . Well, thats not a request for consent. What that is, is this is a Human Exchange where one is about to effectuate a bodily search on the other. That is what the pretest advisement that is read to the conscious driver is. It doesnt apply to the unconscious driver because we dont have that concern of the confrontation and hes already demonstrated his implied consent. Justice kagan but i guess what you just said suggests the limits of these laws. You know, in general, these laws work fine, and the reason that they work fine are because most drivers are conscious. And so the Police Officer engages with them, and what the law does is it functions not as implied consent, it functions as induced consent or incentivized consent. The Police Officer comes up and says unless you consent, your license is going to be taken away. And then the person has a choice. Right . Okay, ill consent, or, no, take my license away. And thats the way these laws usually work. And we can understand how consent is how the law is inducing the consent and the person is giving the consent. But that just falls apart in this situation of the unconscious driver, where we cant possibly get to any real notion of consent. Ms. Jurss so two parts in response. I think its important here that the government has not put the person in that situation. Right . If if that opportunity if there is an opportunity thats offered to the conscious driver, the unconscious drivers lack of having that opportunity is his fault, not the governments. And then what i would say as a second response is, again, consent Justice Kagan the Fourth Amendment often applies against people who violate the law. And we dont usually say tough luck. Its your fault. [laughter] Justice Kagan youre a criminal. [laughter] ms. Jurss true enough. But, in the consent world, this court has also recognized that we the government doesnt have to provide a person an opportunity to withdraw consent. So this courts discussion of the facts of illinois v. Rodriguez and georgia v. Randolph, when were talking about an apparent cotenant at the door and another cotenant whos asleep, this court said, well, the government doesnt have to go rouse that person to give him an opportunity to withdraw his consent. And the other thing i would note in response to your question is that, again, this has to work a little bit unusually because were dealing with intoxicated people. So the danger of putting everything on that atthescene encounter and exchange is that its never going to be the product of a sober mind. And so thats whats so important of having the clarity upfront for Law Enforcement and the individual of how chief Justice Roberts finish your sentence. Ms. Jurss thank you of how that consent will be demonstrated and the expectations that person will be held to. Thank you. Chief Justice Roberts thank you, counsel. Chief Justice Roberts thank you, counsel. Mr. Hinkel, you have four minutes remaining. Mr. Hinkel thank you. This court has repeatedly recognized that a blood draw is a Significant Interest that affects sorry, that offends an individuals sense of dignity and bodily integrity. And, ordinarily, this is true whether or not the person is conscious. Again, against a significant intrusion, the state offers no interest that is not adequately served by either a warrant or the exigent circumstances doctrine. And, again, a warrant is the presumption of the Fourth Amendment, and and this court has certainly made exceptions to that, but its been in cases where the state could show, first, the need for a search, which we concede certainly there is here, but, second, some reason why the ordinary regime of a warrant or a warrant exception isnt sufficient to vindicate their interest. And thats just not present here. Justice alito didnt we just hear some reasons why the warrant would would the warrant requirement would create problems . I mean, id like to hear your response to that. If if theres a crash, the need to attend to people who may be injured in the crash, the need to attend to the medical needs of the person who is unconscious, once at the hospital the the potential that medical care may interfere with the with the accuracy of a subsequent blood draw, the possibility that if the medical treatment proceeds at the hospital before a warrant are warrant before the blood draw for the presence of drugs or alcohol can be administered, it may not be possible to do it because of what the care that the person is being given. Maybe the person is in surgery. I mean, what what is your answer to all of that . Mr. Hinkel those are all textbook factors that would go toward the exigency analysis. It might be present in many cases. It may be that in many cases the exigency the the answer to the question is this an exigent circumstance justifying the absence of a warrant is yes. But that, again, is not a reason for a categorical exception, because thats not every case. That is the case Justice Kavanaugh isnt it most . Mr. Hinkel the most extreme Justice Kavanaugh why not have a categorical exigency for this category of cases involving unconscious, because the factors in many cases are going to be such as were described. Mr. Hinkel well, i dont think we have any evidence that that is, in fact, the case, that that is most cases. You know, Police Departments all across the country are different. There are and and accidents are different and situations of arrests are different. I mean, certainly, the state is making a lot of assertions about how these things tend to go. But we just dont have any of that in the record and just no indication that that is typically the case. Justice alito well, whats on the other side of the balance where you have somebody whos unconscious, so will not even be able to perceive that the blood test is being administered, and the person is in all likelihood having a blood draw for other purposes anyway . Mr. Hinkel well, the reasonableness of the search hasnt ever depended on whether or not someone was around to see it. Its no less unreasonable to search a persons house without a warrant if that person happens to be absent or if that person happens to be asleep. The the problem that the Fourth Amendment seeks to protect against is the invasion of privacy. Thats the same. The interest that this court identified in birchfield, the anxiety that comes along with knowing that the government is in possession of this information about you, thats the same even if it happens a few minutes or a few hours later. Justice kavanaugh how many Justice Breyer so i mean, in birchfield, you say im going to take your license away unless youre going to agree. I mean, of course, hes going to agree. So so thats ridiculous. So, i mean, so you have very little protection when hes awake. Okay . So to say hes asleep, and youre going to take him to the hospital anyway, the thing that i cant get my hands on is this just seems like a sort of bureaucratic set of rules thats going to confuse people, achieving no real purpose. Mr. Hinkel i disagree. Justice breyer unless youre into birchfield, its sort of goodbye. I mean, do do do and i mr. Hinkel i disagree with Justice Breyer i cant get my hands on that, which is why i repeat it. Mr. Hinkel i disagree with the premise that the consequence of license revocation is going to lead to automatic consent in every case. In fact Justice Breyer no, no, youre right, not every case, but on many itll be confusing and a few hell say no, but 99 percent, sure. Mr. Hinkel if i may . Chief Justice Roberts sure. Mr. Hinkel i dont think thats true. I think theres actually its not one percent. Its a considerably higher percent of people who refuse a blood draw regardless of that license consequence. They make that choice. Justice breyer okay. Chief Justice Roberts thank you, counsel. The case is submitted. A cold war historian, historian of it communism. Friends of mine emailed me and asked why i want to tackle this issue, marriage, and family. You are jumping into the culture war. Do you really want to do this . He will be our guest on indepth sunday. His latest book is the divine plan. He also has books about the spiritual lives of ronald reagan, george w. Bush, and hillary clinton. Join other conversation with your phone calls, tweets, and facebook questions. Watch indepth with author paul king were live sunday from noon until 2 00 p. M. Eastern on book tv. Be sure to watch indepth with author lee edwards. 1979, a Small Network with an unusual name rolled out a big idea, that he was make up their own minds let viewers make up their own month. Cspan brings you unfiltered content of congress and beyond. Today, that big ideas more relevant than ever. , cspanision and online is your unfiltered view of government brought to you as a Public Service by your cable or satellite provider. On saturday night, Vice President mike pence addressed the faith and Freedom Coalition gala. Its chair announced wednesday that the group wants to spend at least 50 million in get out the vote efforts in 2020. He introduces the Vice President. This is 50 minutes. You may be seated. On wednesday, we opened our conference with a wonderful speech by the president of the united states. [applause] we have heard from senators and congressmen, radio and television host, grassroots leaders, activists in the hispanic and africanamerican communities and from cabinet officials. At a certain point, we had a quorum to hold a Cabinet Meeting in the green room if we could ha