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Mr. Mitchell Goes to Washington: Blood Draws, Drunk Driving, and the Warrant Requirement

By Donald J. Ramsell and Michelle L. Behan

For more than 50 years, the constitutionality of a search of a defendant’s blood for the presence of alcohol (or drugs) has been the focus of several cases that have come before the U.S. Supreme Court. The government will not let go of the straightforward principle that a warrant must be obtained before a nonconsensual blood draw can be performed. The latest Supreme Court case involves Gerald Mitchell, whose blood was involuntarily extracted from his body by the police while he lay unconscious in a Wisconsin hospital. A review of the past drunk driving blood draw cases is helpful in order to fully understand the constitutional issues Mr. Mitchell raises.

Schmerber v. California

In Schmerber v. California,1 the police arrested the defendant at a hospital as he received treatment for injuries suffered in an accident involving the automobile that he had apparently been driving. At the direction of a police officer, a physician at the hospital took a blood sample from the defendant’s body. T

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