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In a normal year, the annual death toll from drunk driving accidents in the United States will roughly equal the total number of victims of the September 11th terrorist attacks and service members killed in the War on Terror combined. And while every state has enacted increasingly progressive laws to prevent and punish driving under the influence (DUI), episodes of drunk driving remain consistent year to year and less than one percent of self-reported drunk drivers are arrested. Drunken and drugged driving is, both in lay terms and legally speaking, a compelling public issue. But the Fourth Amendment of the U.S. Constitution does not discriminate based on the social cost of specific criminal activity, or at least it ought not to. That is why the Supreme Court’s 2019 plurality opinion in Mitchell v. Wisconsin may have come as a shock to those who study criminal law and procedure.

Six years after rejecting any per se warrant exception for blood draws in DUI investigations, the Mitchell plurality blesses virtually all warrantless blood draws on unconscious DUI suspects. This Essay analyzes and critiques the Mitchell plurality opinion, examining warrantless blood draw caselaw before 2019 and evaluating Mitchell against that precedent. Part I summarizes Mitchell. Part II examines Mitchell as a departure from precedent and an attempt to create law through the rose-tinted lens of public policy.



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