If you are pulled over for OWI, stay awake. You lose some of the constitution’s protection if you pass out, according to a new ruling by the U.S. Supreme Court. If you remain awake, law enforcement officers must obtain a warrant before drawing your blood for a chemical test. If you’re unconscious, however, they can draw your blood without bothering to get a warrant.
We’ve discussed this case before. It arose from Wisconsin, which has what’s called an “implied consent” law — as does Iowa. These laws create a legal assumption that, by driving on the state’s roadways, you have automatically consented to a drug or alcohol blood test when ordered by the police.
Here in Iowa, as in Wisconsin, you can withdraw your consent — for a price. You’re driving privileges will be suspended for at least a year. If you want a restricted license that will allow you to get to work or school, you will be required to pay a $200 fine and install an ignition interlock device on your vehicle.
The question in the case was whether drivers who are unconscious and unable to be roused loses their right to withdraw their consent to a blood test. If they do, their implied consent to a blood test would remain in effect. With this consent, Wisconsin argued, no warrant is needed.
Warrants are required to draw blood from conscious suspects
This is an interesting question for several reasons, but particularly in light of an earlier Supreme Court case holding that warrants are always required to perform blood tests, as opposed to breath or urine tests.
That case, Missouri v. McNeely, even involved a driver who refused a blood test in a state with an implied consent law. The court specifically held that an involuntary blood draw was a search for Fourth Amendment purposes, so it generally requires a warrant. It also found that the natural dissipation of alcohol in the blood does not create an emergency that overcomes the need for a warrant.
In the Wisconsin case, the high court ruled 5-4 that no warrant is necessary in the case of an unconscious suspect because the fact that the driver is unconscious creates an emergency situation. The ruling assumes that there was an implied consent law in place (these exist in 28 states) and that the officer has probable cause to assume the unconscious person was driving drunk.
The justices sent the case back to the lower courts for a ruling on whether the officers actually had time to get a warrant, or fi their duties were so pressing that they had no time.