Do police need a warrant to take blood from an unconscious motorist? The US Supreme Court earlier this month decided to answer that question by accepting the case of Gerald P. Mitchell. The justices will decide whether Wisconsin's implied consent law can affirmatively state that individuals, like Mitchell, who are not awake automatically agree to have their blood taken.

Wisconsin's highest court saw no problem with the law used to take Mitchell's blood on May 30, 2013. After receiving a phone report, Sheboygan police Officer Alex Jaeger found Mitchell walking near the beach, drunk. He told the officer that he parked his gray minivan because he was "too drunk to drive." A unofficial, portable breath test estimated his blood alcohol at 0.24, so the officer placed Mitchell under arrest for driving under the influence (DUI).

On the way to the station, Mitchell passed out. He was brought to the hospital where his blood was drawn without consent, and the alcohol content was 0.22. Mitchell challenged his eventual DUI conviction on the grounds that his blood should not have been taken without a warrant.

"This case is an opportunity for the court to resolve an important constitutional question: can state legislatures obviate the warrant requirement by 'deeming' their citizens to have consented to Fourth Amendment searches?" Mitchell's public defender, Andrew R. Hinkel, argued in his brief to the US Supreme Court.

The Wisconsin Supreme Court upheld the statute, but the state's justices could not all agree on the rationale for finding Mitchell guilty. One faction believed the legislature could affirmatively waive a constitutional right. Another believed the blood was taken as a valid search incident to an arrest under exigent circumstances because the alcohol dissipates from the blood over time.

"Any other conclusion would have given those who drink so much that they become unconscious the windfall of avoiding the lawful civil choice, which other drunk drivers must face, of having their blood drawn or losing their license," Wisconsin Attorney General Brad D. Schimel argued.