“What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.” In Mitchell v. Wisconsin, there was time; therefore, the Constitution mandates that the officer should have sought a warrant. Through its reasoning and holding in Mitchell, the plurality wrongly departed from the Court’s precedent to manufacture an exigency out of thin air. The plurality ignored the question presented by the lower court’s ruling, doing a disservice both to the spirit and letter of the Fourth Amendment, and to state courts looking for clarity on the validity of implied consent statutes.

In light of this injurious and misguided decision, this piece first surveys the history of the exigent circumstances exception to the Fourth Amendment. It then discusses the progression of the Supreme Court’s application of the exception to cases involving drunk driving and blood draws, including Mitchell v. Wisconsin. Finally, it addresses the starkness of the Mitchell plurality’s disregard of precedent regarding both blood draws and the exigency doctrine, as well as its likely consequences.

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