The Supreme Court heard arguments on Tuesday in a six-year-old case out of Wisconsin that involved a drunk driver and boiled down to whether an unconscious individual can give their consent or not for an intrusive procedure like a blood draw.
Justice Ruth Bader Ginsburg even drew a laugh as she gave her opinion on the health issue, suggesting the driver could post a card on the window: “If I’m unconscious, I do not consent to a blood draw.”
Wisconsin man Gerald Mitchell was detained by police in 2013 on suspicion of drunk and drugged driving, but by the time officers had transported him to a hospital for a blood test, Mitchell had passed out and was unconscious, and was therefore unable to consent to the test.
Wisconsin, along with many other states, operates under the presumption that any and all drivers automatically give their “implied consent” simply by taking the wheel of a vehicle.
But critics say that there
The high court split on the matter, with some justices — such as Chief Justice John Roberts and Justice Samuel Alito — supporting the state law.
“Ignorance of the law is no excuse,” Roberts said. “And if the law says if you’re going to operate a motor vehicle on our highways, you impliedly consent to this.”
The liberal justices — plus perhaps even Justice Neil Gorsuch — worried that the “implied consent” law was unclear or went too far.
Ginsburg speaks out
Ginsburg particularly took issue with the notion of “implied consent,” which she viewed as a “fiction” that simply didn’t exist.
“We don’t use this presumed consent anymore because it is a fiction. It’s the legislature (that) has consented to have this thing happen. It’s not the person who is arrested,” Ginsburg explained.
To be sure, this is a complicated case with legitimate principled arguments on both sides that highlight the divide between states’ rights and individual liberties.
The court is expected to reach a decision in the case this summer.