2022 WI App 31

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2019AP1942-CR

Complete Title of Case: 

†Petition for Review filed

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

GERALD P. MITCHELL,

 DEFENDANT-APPELLANT.†

Opinion Filed: June 15, 2022

Submitted on Briefs: February 10, 2022

Oral Argument: 

JUDGES: Gundrum, P.J., Neubauer and Kornblum, JJ. 

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Andrew R. Hinkel, assistant state public defender of Madison. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Michael C. Sanders, assistant attorney general, and Joshua L. 

Kaul, attorney general. 
COURT OF APPEALS

DECISION

DATED AND FILED

June 15, 2022

Sheila T. Reiff

Clerk of Court of Appeals

2022 WI App 31

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2019AP1942-CR Cir. Ct. No. 2013CF365

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

GERALD P. MITCHELL,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Sheboygan

County: TERENCE T. BOURKE and REBECCA L. PERSICK, Judges. Affirmed. 

Before Gundrum, P.J., Neubauer and Kornblum, JJ. 

¶1 GUNDRUM, P.J. This operating-a-motor-vehicle-while-intoxicated (OWI) 

case has a significant history as it has already been to the United States Supreme Court and 

back. In Mitchell v. Wisconsin, 139 S. Ct. 2525, 2539 (2019) (plurality), the Court held 

that “[w]hen police have probable cause to believe a person has committed a drunk-driving 

offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital 
No. 2019AP1942-CR

2

or similar facility before police have a reasonable opportunity to administer a standard 

evidentiary breath test,” as was the case with Mitchell, they may lawfully order a blood test 

without a warrant. Such testing will not be determined to have “offend[ed] the Fourth 

Amendment,” the Court continued, unless the defendant shows both (1) “that his blood 

would not have been drawn if police had not been seeking BAC [blood alcohol 

concentration] information” and (2) “that police could not have reasonably judged that a 

warrant application would interfere with other pressing needs or duties.” Id. The Court 

remanded the case to afford Mitchell the opportunity to try to make these two showings.

¶2 Following an evidentiary hearing, the circuit court denied Mitchell’s 

suppression motion on the basis that he failed to make these showings.1 Mitchell appeals 

this ruling, but we agree with the circuit court and affirm. 

Background

¶3 Since our decision today relies heavily upon Mitchell, we will also borrow 

heavily from it for the background.

¶4 When an officer located motorist Mitchell, he was “[s]tumbling and slurring 

his words” and “could hardly stand without the support of two officers.” Id. at 2532. With 

field sobriety tests deemed “hopeless, if not dangerous,” the officer arrested Mitchell for 

OWI and drove him to a police station for a breath test. Id. At the station, Mitchell was 

“too lethargic even for a breath test,” so the officer took him to a hospital for a blood draw. 

Id. Before reaching the hospital, Mitchell lost consciousness and “had to be wheeled in.” 

Id. Despite Mitchell’s lack of consciousness, the officer, pursuant to Wisconsin’s Implied 

Consent Law, “read aloud to a slumped Mitchell the standard statement giving drivers a 

 

1

 The Honorable Terence T. Bourke entered the judgment of conviction. The Honorable 

Rebecca L. Persick held the evidentiary hearing after remand and entered the order denying the motion to 

suppress.
No. 2019AP1942-CR

3

chance to refuse BAC testing.” Id. With no response from Mitchell, the officer asked 

hospital staff to draw his blood. “Mitchell remained unconscious while the sample was 

taken, and analysis of his blood showed that his BAC ... was 0.222%.” Id. 

¶5 Charged with two related drunk-driving violations, Mitchell moved to 

suppress the results of the blood test, contending “it violated his Fourth Amendment right 

against ‘unreasonable searches’ because it was conducted without a warrant.” Id. The 

circuit court denied his motion, and he was found guilty of both charges following a jury 

trial. Id. Mitchell appealed, and the Wisconsin Supreme Court accepted our certification 

and affirmed the convictions. Id.

¶6 On further appeal, the United States Supreme Court ultimately considered

“what officers may do when a driver’s unconsciousness (or stupor) eliminates any 

reasonable opportunity” for a “reliable, evidence-grade breath test[]” to be performed upon 

the driver. Id. at 2534 (citation omitted). Addressing this issue, the Court declared that, in 

the OWI context, “exigency exists when (1) BAC evidence is dissipating and (2) some 

other factor creates pressing health, safety, or law enforcement needs that would take 

priority over a warrant application. Both conditions are met when a drunk-driving suspect 

is unconscious, so ... [w]ith such suspects ... a warrantless blood draw is lawful.” Id. at 

2537 (emphasis added). The Mitchell Court further stated that 

unconsciousness does not just create pressing needs; it is itself a 

medical emergency. It means that the suspect will have to be rushed 

to the hospital ... not just for the blood test itself but for urgent 

medical care. Police can reasonably anticipate that such a driver

might require monitoring, positioning, and support on the way to the 

hospital; that his blood may be drawn anyway, for diagnostic 

purposes, immediately on arrival; and that immediate medical 

treatment could delay (or otherwise distort the results of) a blood 

draw conducted later, upon receipt of a warrant, thus reducing its 

evidentiary value. 
No. 2019AP1942-CR

4

Id. at 2537-38 (first emphasis in original; citation omitted). Referring to Schmerber v. 

California, 384 U.S. 757, 770-71 (1966)—in which the Court held that the exigent 

circumstances doctrine applied to a warrantless blood draw on an intoxicated driver 

involved in a car accident because of pressing duties related to that accident taking priority 

over applying for a warrant—the Mitchell Court continued, “Just as the ramifications of a 

car accident pushed Schmerber over the line into exigency, so does the condition of an 

unconscious driver bring his blood draw under the exception.” Mitchell, 139 S. Ct. at 2538

(emphasis added).2 

¶7 Ultimately, the Mitchell Court adopted a “rule” for “an entire category of 

cases”—those in which there is probable cause to believe a driver has committed an OWI 

offense and the driver is either unconscious, id. at 2534 n.2, or in such a stupor that he/she 

cannot properly perform a breath test, id. at 2539.

 When police have probable cause to believe a person has 

committed a drunk-driving offense and the driver’s unconsciousness 

or stupor requires him to be taken to the hospital or similar facility 

before police have a reasonable opportunity to administer a standard 

evidentiary breath test, they may almost always order a warrantless 

blood test to measure the driver’s BAC without offending the Fourth 

Amendment. We do not rule out the possibility that in an unusual 

case a defendant would be able to show that his blood would not 

have been drawn if police had not been seeking BAC information, 

and that police could not have reasonably judged that a warrant 

application would interfere with other pressing needs or duties. 

Id. Because the Court could not “rule out the possibility” that Mitchell’s situation could 

be the “unusual case,” it remanded the matter to afford Mitchell the opportunity to try to 

show “that his blood would not have been drawn if police had not been seeking BAC 

 

2

 The Court also expressed that the interests in keeping our highways safe from drunk drivers “are 

greater” with drunk drivers so inebriated that they cannot properly perform a breath test because “[d]rivers 

who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be 

perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish.” 

Mitchell v. Wisconsin, 139 S. Ct. 2525, 2537 (2019).
No. 2019AP1942-CR

5

information” and “that police could not have reasonably judged that a warrant application 

would interfere with other pressing needs or duties.” Id. at 2539. 

¶8 Upon remand, the circuit court held an evidentiary hearing at which Mitchell 

attempted to show these two factors and thus show that the otherwise lawful warrantless 

blood draw of the unconscious Mitchell was unlawful. Following an evidentiary hearing 

at which the arresting officer provided testimony relevant to this issue, the circuit court 

determined that Mitchell failed to show that either factor existed, and it again denied his 

suppression motion. Mitchell appeals from that ruling.

Discussion

¶9 “The review of a circuit court’s order granting or denying a suppression 

motion presents a question of constitutional fact. We will uphold the court’s factual 

findings unless they are clearly erroneous, but we independently apply constitutional 

principles to those facts.” State v. Ionescu, 2019 WI App 68, ¶8, 389 Wis. 2d 586, 937 

N.W.2d 90 (citation omitted).

¶10 The key holding of Mitchell relevant to this appeal is that 

[w]hen police have probable cause to believe a person has 

committed a drunk-driving offense and the driver’s unconsciousness 

or stupor requires him to be taken to the hospital or similar facility 

before police have a reasonable opportunity to administer a standard 

evidentiary breath test, they may almost always order a warrantless 

blood test to measure the driver’s BAC without offending the Fourth 

Amendment.

Id. at 2539 (emphasis added). The only circumstance in which police may not order the 

test without offending the Fourth Amendment—the “almost always” part of the holding—

is where the motorist shows both that (1) his/her blood “would not have been drawn if 

police had not been seeking BAC information,” and (2) “police could not have reasonably 

judged that a warrant application would interfere with other pressing needs or duties.” Id.
No. 2019AP1942-CR

6

(emphasis added); see State v. Richards, 2020 WI App 48, ¶29 n.4, 393 Wis. 2d 772, 948 

N.W.2d 359 (“Mitchell’s holding that a defendant must ‘show’ [these two factors] places 

the burden on [the defendant] to establish those factors.”). Because Mitchell failed to show 

that the first factor existed in this case,3the circuit court correctly determined that the 

warrantless blood draw was lawful.

¶11 Mitchell suggests we should look to the arresting officer’s subjective intent 

in taking him to the hospital for a blood draw. He points to testimony of the officer that 

suggests that the reason the officer left the police station to take him to the hospital was to 

secure BAC evidence, not to ensure he received medical attention. Relatedly, citing 

Mitchell, 139 S. Ct. at 2537-38, he asserts: “As the [Mitchell] Court put it ... if police can 

‘reasonably anticipate that [a driver’s] blood may be drawn anyway, for diagnostic 

purposes, immediately on arrival’ they need not seek a warrant.” (Last alteration in 

original; emphasis added.) Playing off of this, Mitchell then writes that “at the time the 

officer [in this case] elected to proceed with a warrantless blood draw, he could not 

‘reasonably anticipate’ that Mitchell’s blood would be ‘drawn anyway’ if [the officer] had 

not ‘been seeking BAC information.’” Mitchell expands on this in his reply brief, 

contending that the officer “had no reason to think Mitchell’s blood would be taken if he 

did not take Mitchell to the hospital for his own [investigatory] purposes.”

¶12 The Mitchell Court did not “put it” the way Mitchell does. As noted earlier, 

the Mitchell Court stated that an OWI-motorist’s unconsciousness 

does not just create pressing needs; it is itself a medical emergency. 

It means that the suspect will have to be rushed to the hospital ... 

not just for the blood test itself but for urgent medical care. Police 

 

3

 The circuit court found not only that Mitchell failed to make this necessary showing but that the 

evidence showed just the opposite, that it was “clearly established” that Mitchell’s blood would have been 

drawn even if police were not seeking such information “because his condition was so dire by the time he 

arrived at the hospital.”
No. 2019AP1942-CR

7

can reasonably anticipate that ... [the driver’s] blood may be drawn 

anyway, for diagnostic purposes, immediately on arrival.

Id. at 2537-38 (first emphasis in original). Mitchell does not, as Mitchell represents, 

indicate that a warrantless blood draw of an unconscious OWI-motorist is constitutional 

only “if” an officer in a particular case “can reasonably anticipate that [the driver’s] blood 

may be drawn anyway, for diagnostic purposes, immediately on arrival.” Rather, the Court 

stated that where there is probable cause to believe an unconscious person has operated a 

vehicle while intoxicated, the person “will have to be” rushed to a hospital for a “blood 

test”4 and “urgent medical care.”5 Id. The Court did express that police can reasonably 

anticipate or expect that medical personnel “may” draw such a motorist’s blood for medical 

reasons, id. at 2538, but whether or not a particular officer does in fact anticipate that a 

draw will occur for such reasons in a particular case is completely irrelevant to the legality 

 

4

 The Court further stated that because “BAC tests are crucial links in a chain on which vital 

interests hang[,] when a breath test is unavailable to advance those aims,” a blood test becomes “essential,” 

Mitchell, 139 S. Ct. at 2535, and “necessary,” id. at 2536-37 (citation omitted).

5

 The Mayo Clinic describes alcohol poisoning as 

a serious—and sometimes deadly—consequence of drinking large 

amounts of alcohol in a short period of time. Drinking too much too 

quickly can affect your breathing, heart rate, body temperature and gag 

reflex and potentially lead to a coma and death. 

 .... 

 A person with alcohol poisoning needs immediate medical attention. If 

you suspect someone has alcohol poisoning, call for emergency medical 

help right away.

See, e.g., Alcohol Poisoning: Symptoms & Causes, http://mayoclinic.org/diseases-conditions/alcoholpoisoning/symptoms-causes/syc-20354386 (last visited June 7, 2022).

Relatedly, the Mitchell Court noted that “[s]erum glucose and blood alcohol concentrations are two 

pieces of information that are of paramount importance when an apparently intoxicated patient arrives at 

the [emergency room].” Mitchell, 139 S .Ct. at 2538 n.8 (emphasis added; second alteration in original; 

citation omitted). As previously indicated, see supra ¶10 n.3, at the hearing following remand, the circuit 

court found that Mitchell’s blood would have been drawn by medical professionals even if police had not 

been seeking BAC information because Mitchell’s condition “was so dire by the time he arrived at the 

hospital.”
No. 2019AP1942-CR

8

of the blood draw. The Mitchell Court provided clear guidance related to all OWI motorists 

who are unconscious or in such a stupor they cannot perform a breath test—taking such 

motorists to the hospital and performing a warrantless blood draw is reasonable and 

constitutional, and the related blood test will not be suppressed unless the motorist later 

shows both “that his blood would not have been drawn if police had not been seeking BAC 

information” and “that police could not have reasonably judged that a warrant application 

would interfere with other pressing needs or duties.” Id. at 2539.

¶13 The Mitchell Court determined the facts of this case to be that when the 

officer located Mitchell, he was “[s]tumbling and slurring his words, [and] could hardly 

stand without the support of two officers.” Id. at 2532. The officer “judged a field sobriety 

test hopeless, if not dangerous, and gave Mitchell a preliminary breath test” that indicated 

a BAC level of 0.24%—three times the legal limit. Id. The officer took Mitchell to the 

station to conduct a breathalyzer test. Id. On the way, Mitchell’s condition “continued to 

deteriorate,” and at the station “he was too lethargic even for a breath test. [The officer]

therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness 

on the ride over and had to be wheeled in.” Id. Considering this factual scenario, the Court 

stated: “Mitchell’s stupor and eventual unconsciousness ... deprived officials of a ... 

reasonable opportunity to give Mitchell a breath test using ‘evidence-grade breath testing 

machinery.’ ... [W]hen Mitchell’s condition got in the way, it was reasonable for [the 

officer] to pursue a blood test.” Id. at 2533-34 (emphasis added). Thus, the Mitchell Court 

determined that because Mitchell’s extreme drunken condition at the police station made 
No. 2019AP1942-CR

9

him “too lethargic” to properly perform a breath test, id. at 2532, the officer’s decision to 

take him to the hospital for a blood test “was reasonable,”6id. at 2534. 

¶14 At the hearing upon remand, the officer testified that when he first made 

contact with Mitchell, he was “[v]ery lethargic,” had been “swaying,” and “nearly fell 

going from the street to the sidewalk.” His condition deteriorated on the way to the police 

station and then continued to deteriorate while there. During the time when Mitchell 

“would normally be doing” the breath test at the station, the officer determined he would 

take Mitchell to the hospital for a blood draw because Mitchell “couldn’t even stand” and 

“was physically unable to perform the breath test.”7 Mitchell “was very lethargic” to the 

point of being essentially “incapacitated.”

¶15 On the way to the hospital, Mitchell’s condition continued to decline as he 

“was beginning to sleep or go unconscious.” When they arrived at the hospital, Mitchell

“couldn’t be woken ... No stimulus worked to wake him,” giving the officer concern for 

 

6

 See State v. Howes, 2017 WI 18, ¶21, 373 Wis. 2d 468, 893 N.W.2d 812 (“The touchstone of the 

Fourth Amendment is reasonableness. As such, ‘[t]he Fourth Amendment does not proscribe all stateinitiated searches and seizures; it merely proscribes those which are unreasonable.’ An action is 

‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as 

the circumstances, viewed objectively, justify [the] action.’” (citation omitted)).

7

 The officer explained that:

[T]o do the breath test, you would need to stand up at the counter, and it 

wouldn’t reach down to a chair.... It’s a large unit[;] ... [i]t’s not 

something we can lift off the counter and bring to him. And there’s 

specific instructions that we follow. So he would have to take a deep 

breath in and extend a significant amount of breath into the machine. And 

I didn’t feel that he was physically able to do that.
No. 2019AP1942-CR

10

Mitchell’s medical condition.8 The officer needed assistance lifting Mitchell into a 

wheelchair, and medical staff began evaluating him after the officer wheeled him into the 

emergency room. Staff assessed him with “[m]ultiple tests” and “[m]onitors,” and they 

drew his blood for medical as well as evidentiary purposes.

¶16 When the Mitchell Court remanded this case, it did so for a very narrow 

purpose—to give Mitchell an opportunity to show that: (1) his blood “would not have been 

drawn if police had not been seeking BAC information,” and (2) the police “could not have 

reasonably judged that a warrant application would interfere with other pressing needs or 

duties.” Mitchell, 139 S. Ct. at 2539. Because Mitchell has failed to make even the first 

showing, the officer’s decision to “order a warrantless blood test to measure [Mitchell’s]

BAC [did not] offend[] the Fourth Amendment.” Id. Thus, the warrantless blood draw 

was lawful.

By the Court.—Judgment and order affirmed.

 

8

 The officer testified that during the eight minute drive from the station to the hospital, Mitchell’s 

condition went from extreme drunken stupor to completely unconscious and unable to be roused. The 

evidence provides no reason to believe that had Mitchell stayed at the station during those eight minutes 

that he would not have, at that location, lost consciousness and had to have been taken to the hospital then. 

See Mitchell, 139 S. Ct. at 2537-38 (“[U]nconsciousness does not just create pressing needs; it is itself a 

medical emergency. It means that the suspect will have to be rushed to the hospital ... not just for the blood 

test but for urgent medical care.” (second emphasis added)).