Supreme Court upholds warrantless blood tests for unconscious drunk driving suspects.

Amy Howe Independent Contractor and Reporter

Fri, June 28th, 2019 6:07 am

Yesterday a divided Supreme Court ruled that the Fourth Amendment generally does not bar states from taking a blood sample from an unconscious drunk-driving suspect without a warrant.

The issue came to the Supreme Court in the case of Gerald Mitchell, whom police found six years ago on a beach in Sheboygan, Wisconsin. Mitchell was wet, shirtless, covered in sand and slurring his words. Police arrested Mitchell after a preliminary breath test indicated that his blood-alcohol level was three times the legal limit. But those test results couldn’t be used in court, and police soon realized that Mitchell was too drunk to do a second breath test, so they took him to the hospital for a blood test instead. Before they arrived at the hospital, Mitchell had passed out. But hospital staff drew blood anyway, obtaining a sample with a blood-alcohol level of 0.222.

Mitchell was charged with driving while intoxicated. He fought to keep the results of the blood test from being used against him, arguing that the Fourth Amendment required the police to get a warrant. The state answered that the blood test was constitutional, because of a state law that assumes both consent to a blood test for anyone who drives on Wisconsin’s roads and that an unconscious driver has not withdrawn his consent.

Writing for four justices – Chief Justice John Roberts, Justices Stephen Breyer and Brett Kavanaugh and himself – Justice Samuel Alito explained that although the Fourth Amendment generally requires a warrant for a search, there are a variety of exceptions to this rule, including one for “exigent circumstances,” which allows searches without a warrant to “prevent the imminent destruction of evidence.”

The exigent-circumstances exception, Alito continued, will normally allow police to take blood from an unconscious drunk-driving suspect without having to get a warrant. Blood-alcohol limits serve an important purpose, Alito wrote: They “are needed for enforcing laws that save lives.” And they need to be performed promptly, Alito added, because alcohol will disappear from the bloodstream over time. “Evidence is literally disappearing,” he summarized, “by the minute.” When a suspect can’t take a breath test, then the only option is to perform a blood test; indeed, Alito observed, it would be “perverse” if it were harder to do the blood test when someone is unconscious, and therefore even more intoxicated.

Moreover, Alito noted, the fact that the driver is unconscious will create an extra burden on police officers, who likely will have to take the driver to the hospital “not just for the blood test itself but for urgent medical care.” The driver’s condition may create other problems that take up the officers’ time – for example, preserving evidence or directing traffic. Having to deal with all of these issues, Alito posited, would create a “dilemma” for police: “It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the” blood-alcohol test. And although technology has made it possible for police to get a warrant “faster and more easily,” “the time required has shrunk, but it has not disappeared.”

Finally, although yesterday’s decision creates a general rule that police do not need to get a warrant to take a blood sample from an unconscious driver, Alito left open the possibility that, “in an unusual case,” the rule would not apply – for example, if the suspect could show “that his blood would not have been drawn if police had not been seeking” blood-alcohol information, and that police didn’t have any reason to believe that they couldn’t have gotten a warrant. Because Mitchell had not had a chance to meet this standard, Alito concluded, his case would go back to the Wisconsin courts to give him a chance to do so.

Justice Clarence Thomas agreed with Alito on the result, if not his reasoning. Thomas maintained that because alcohol disappears from the blood with time, police should be able to perform a blood test whenever they suspect someone of drunk driving – conscious or not.

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg and Elena Kagan. Sotomayor criticized the Alito decision as resting on a “false premise” – the idea that police shouldn’t have to choose between getting a warrant for a blood test and dealing with the problems created by a drunk driver. Sotomayor acknowledged that “drunk driving poses significant dangers that Wisconsin and other States must be able to curb,” but she suggested that, under the Fourth Amendment, “the answer is clear: If there is time, get a warrant.”

What’s more, Sotomayor added, Wisconsin cannot rely on the exigent-circumstances exception. Not only has it has never made that argument in the Supreme Court, it has in fact “conceded” that the exception does not justify the blood test in Mitchell’s case.

Justice Neil Gorsuch also dissented. He complained that the justices had granted review to decide whether “Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute.” But the Supreme Court didn’t answer that question today, Gorsuch wrote, instead resolving the case on “an entirely different ground.” He would have dismissed the case without deciding it and waited for another case in which the exigent-circumstances exception was squarely presented.

This post was originally published at Howe on the Court.

McLemore Law, Ltd. Supports Fayetteville's Stone Sculpture Park.

From Fayetteville Flyer:

A new stone sculpture pocket park is set to open at 10 a.m. Friday, June 21 near Town Branch Trail in south Fayetteville.

The park, called Stone Altar, is located on private land near the intersection of the trail and Stirman Avenue, but is open to the public. It includes a stone entrance and pathway that leads to an altar with more stone work and seating areas.

The project was first envisioned by local resident Jimmy Glenn after a visit to the annual Burning Man event in the Nevada desert.

Glenn was inspired by the annual temples that are built on the event site, which allow visitors to make notations on the structure with messages of love or grief, to honor friends or relationships, or to say goodbye to those who have died. When the temple is burned on the final day of the event, a quiet ceremony serves as a means of letting go.

The stone altar project, Glenn said, is an attempt to reproduce that experience on a much smaller and more intimate scale. Visitors can burn their own writings at the altar, or just enjoy a quiet place to rest, talk or reflect.

Glenn said he’s had plenty of support for the idea since its inception. He said the park land is owned by local resident Cary Arsaga, and much of the stone was donated by Flagstone Heights in Prairie Grove. Others donated money and the use of tractors or heavy equipment needed to dig holes and move the large stones on the site.

A non-profit was formed to receive donations, oversee the project, and to take care of maintenance and liability.

Glenn said he hopes to add new features over time, including a small pavilion and commissioned pieces from local sculptors.

“We feel as though we have started a process that can continue to grow and change over the years,” Glenn said. “We believe it can become a very special place in Fayetteville to visit on your own or to bring friends and family.”

McLemore Law, Ltd. supports Terrific Tuesday Nights at the Botanical Garden of the Ozarks

Terrific Tuesday Night Concerts at the Botanical Garden of the Ozarks

4703 N Crossover Rd 
Fayetteville, AR 72764 
Botanical Garden of the Ozarks

From June through August, the botanical garden will be open and free to the public from 5:00 to 8:00* pm on Tuesdays. Guests are invited to make a donation to support garden programs. *Please note: Concerts will end at 9 pm. Activities on select evenings may include concerts, enchanted garden walks and other fun activities! June 18: NWA Ballet Theatre Dance Beat pop-up show – dance performances throughout the garden by the Bentonville-based professional classical ballet company For more information visit

McLemore LAW, Ltd. supports the 2019 Gully Park Concert Series!

Gully Park.jpg

Gulley Park Summer Concert Series 2019

Nothing says sweet, sweet summertime in Fayetteville, Arkansas like the Gulley Park Summer Concert Series. Gathering a perfect cross-section of the community in one of the city’s most-loved parks, the multi-show lineup provides free live music representing a range of genres. Keeping the fun going until the sun goes down, all concerts are held on Thursday evenings at the Gulley Park gazebo, and feature a food truck rally to help satisfy hungry bellies.

Attendees are encouraged to bring lounge chairs or picnic blankets to add to the patchwork of comfortable spots to enjoy the tunes. Well-behaved, leashed furry friends are welcome, too.

McLemore Law, Ltd. supports the 2019 Arkansas Pride Parade!



NWA Pride Weekend – We’re excited to announce Arkansas’s largest LGBTQ Pride celebration!

In June 2019, join us to mark the 50th Anniversary of the Stonewall rebellion – a pivotal moment in our LGBTQ history!

NWA Pride weekend is June 14-16, 2019. The Parade and Festival will take place Saturday, June 15 on and around Dickson Street in downtown Fayetteville. See you there!

For more information and updates:

Fayetteville Springfest 2019!

Springfest is this Saturday, April 20.

There are all kinds of things to do and see from bed races down Dickson St. to live music at multiple stages. Get out and enjoy the sunshine and festivities!

 Proceeds from the event will benefit Tri Cycle Farms, and Lifesource International.

  A link to a list of all events and happenings is below.

ARKANSAS Civil Asset Forfeiture Reform Act of 2019

On March 18, 2019, Arkansas Governor Asa Hutchinson signed a new law that will require police and prosecutors to obtain a criminal conviction in most cases before they can seize someone's property. The law is titled "The Civil Asset Forfeiture Reform Act of 2019.” The Act passed the Arkansas Senate and House by a unanimous vote and will become effective 90 days after the current session adjourns.

The new law will require prosecutors to obtain a criminal conviction to forfeit property. Exceptions to the criminal conviction include if the property owner is deceased, deported, flees the jurisdiction or fails to challenge the forfeiture, or if the property is abandoned.

Under current civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is never charged or convicted of a crime.

The proceeds of asset forfeiture are often split between local prosecutors' offices and police departments. The Arkansas Democrat-Gazette reports that state law enforcement agencies rake in tens of millions of dollars a year through asset forfeiture. More than half of all U.S. states have passed some form of asset forfeiture reform over the past decade in response to bipartisan concerns.

On February 20, 2019, the U.S. Supreme Court ruled in a 9-0 decision that the Eighth Amendment's protections against excessive fines and fees applied to the states. The case, Timbs v. Indiana, challenged the seizure of a $42,000 Land Rover—four times the maximum fine for the drug crime that resulted in the seizure.

Below are links pertaining to the topic and response to the Timbs v Indiana decision.

McLemore Law, Ltd. Supports the Fayetteville Farmers' Market on the Historic Downtown Square


The Fayetteville Farmers’ Market has operated on the Downtown Square since 1973. It has thrived, growing into one of the most popular and successful markets in the region. Locally grown fresh produce, flowers, meats and handmade arts and crafts are featured throughout the season. At the market you will also find live music, non-profit booths and lively political discussions. The Downtown Square hosts the market from April through October, Tuesdays and Thursdays from 7:00 a.m. to 1:00 p.m. and Saturdays from 7:00 a.m. to 2:00 p.m. Stop by and support our local farmers and artisans!