In urging the Supreme Court to hear the case, Mr. Rehaif relied on a 2012 concurrence from Justice Neil M. Gorsuch, who at the time was a federal appeals court judge in Denver. Judge Gorsuch wrote that logic and the rules of grammar required proof that every element of the crime in question had been committed knowingly. “It makes no sense,” he wrote, “to read the word ‘knowingly’ as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.”
The case on drawing blood from motorists, Mitchell v. Wisconsin, No. 18-6210, concerns Gerald P. Mitchell, a Wisconsin man arrested on suspicion of drunken driving. A police officer took him to a hospital, where he was slumped over and unresponsive. The officer instructed medical personnel to draw blood from Mr. Mitchell, and they found that his blood alcohol concentration was 0.22, which is above the legal limit for driving.
It was Mr. Mitchell’s seventh offense for driving under the influence. He was convicted and sentenced to three years in prison, and he challenged his conviction on Fourth Amendment grounds.
A splintered Wisconsin Supreme Court rejected that argument, relying on a state law that presumes drivers have consented to blood tests and punishes them if they decline to cooperate by revoking their driver’s licenses. The law says unconscious motorists are “presumed not to have withdrawn consent” to having their blood drawn.
Twenty-eight states have similar laws, according to Mr. Mitchell’s petition seeking Supreme Court review, but some of them have been struck down after two recent Supreme Court decisions.
In 2013, the court ruled that a warrant is ordinarily needed before drawing blood in drunken-driving investigations. In 2016, the court added that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” In Mr. Mitchell’s case, the penalty of losing a driver’s license is a civil one.
In urging the Supreme Court to deny review, lawyers for the state said Mr. Mitchell should not benefit because he “got so drunk that, after driving while under the influence, he passed out and became unconscious.”
Mr. Mitchell should not, the state’s brief said, receive “the windfall of avoiding the lawful civil choice, which other drunk drivers must face, of having their blood drawn or losing their license.”