Lower Court Proceedings

At the trial court, Mitchell made a motion to suppress the results of the hospital blood draw on the grounds that it was a warrantless search and thus unconstitutional under the Fourth Amendment. The prosecutor argued that Wisconsin's state laws constitute implied consent to blood draws once someone begins driving a vehicle.^[2] Sheboygan County Judge Terence Bourke sided with the prosecutor, denying Mitchell's motion to suppress. A jury then convicted Mitchell of all charges.^[3]

Mitchell appealed his conviction to the state appellate court on the basis that the evidence gained from his blood draw should have been suppressed. The appellate court declined to hear the case, and instead certified two questions to the Wisconsin Supreme Court - whether the "implied consent" rule was constitutional, and whether a warrantless blood draw from an unconscious person was a violation of the Fourth Amendment.^[3]

In a 5-2 decision written by Chief Justice Roggensack, the Wisconsin Supreme Court upheld Mitchell's conviction, answering that the "implied consent" rule was constitutional, and thus the blood draw was permissible under the Fourth Amendment. Justice Kelly wrote a concurring opinion that was joined by Justice Rebecca Bradley. In it, he argued that the "implied consent" rule is unconstitutional, but that the exigent circumstances doctrine, along with United States Supreme Court precedent, allow for a warrantless blood draw from an unconscious driver who is suspected of being intoxicated. Justice Ann Walsh Bradley wrote a dissent joined by Justice Abrahamson, which argued that "implied consent" is not the same as actual consent, and that a blood draw is such an invasive type of search that exigent circumstances do not apply. Thus, nothing the officers did was constitutional, and the blood draw should have been thrown out as evidence.^[4]