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South Carolina Supreme Court Rejects U.S. Supreme Court’s Shifting of Burden to Defendant to Prove Absence of Exigent Circumstances in DUI Cases

by Douglas Ankney

The Supreme Court of South Carolina rejected the U.S. Supreme Court’s ruling in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), to the extent that Mitchell shifts to the defendant the burden to prove the absence of exigent circumstances to justify a warrantless blood draw.

Kathryn Martin Key drove her vehicle across the center line, struck an oncoming vehicle, drove off the road, and hit a tree. Trooper Aaron Campbell arrived within 15 minutes of the accident. Key was transported to the hospital while Campbell stayed on the scene to investigate. In Key’s glove compartment, Campbell found an almost-empty mini bottle of Jack Daniel’s whiskey.

Campbell decided to charge Key with DUI and open container, but when he arrived at the hospital, he found Key in the emergency trauma bay — intubated and unconscious from her injuries. Campbell arrested the unconscious Key for DUI. Without seeking a search warrant, Campbell asked a nurse to draw Key’s blood and subsequent testing revealed Key’s blood alcohol concentration (“BAC”) was .213%.

Key moved pretrial in summary court to have the BAC evidence suppressed on the grounds that Campbell’s failure to obtain a warrant violated the Fourth Amendment to the U.S. Constitution and Article I, Section 10 of the South Carolina Constitution. Key contended there were no exigent circumstances to excuse the failure.

The State responded that under S.C. Code Ann. § 56-5-2950(A) (2018) (the “implied consent statute”) Key had consented to the blood draw. The State further argued, “Judge, this is not a case where we have to look for exigent circumstances. We are not looking for an exception to the warrant requirement.” The summary court denied the motion to suppress and, after a bench trial, found Key guilty.

Key appealed to the circuit court where the State urged affirmance not only on the consent argument, but also argued that the record was “replete with evidence of exigent circumstances.” The circuit court rejected the State’s position that the implied consent statute permitted a warrantless blood draw, reversed Key’s conviction, and remanded for a new trial. The circuit court did not address the State’s exigent-circumstances argument. The State appealed, ultimately relying solely on its exigent-circumstances argument in the South Carolina Supreme Court.

The Court observed “[i]t is settled that the collection of a person’s blood for BAC testing is a search and seizure under the Fourth Amendment.” Schmerber v. California, 384 U.S. 757 (1966). The Fourth Amendment prohibits unreasonable searches and seizures, and evidence seized in violation thereof must be excluded from trial. State v. Khingratsaiphon, 572 S.E.2d 456 (S.C. 2002). Searches conducted without a warrant are per se unreasonable. Kentucky v. King, 563 U.S. 452 (2011). But the warrant requirement may be overcome in certain situations where the search was reasonable in the absence of a warrant. Id. Consent and exigent circumstances are two of the recognized exceptions to the warrant requirement. State v. Brown, 736 S.E.2d 263 (S.C. 2012). The burden is on the State to justify a warrantless search. State v. Peters, 248 S.E.2d 475 (S.C. 1978). The Court recognized that the U.S. Supreme Court, all state, and lower federal courts had consistently held that the State bears the burden of establishing exigent circumstances.

However, Mitchell seemed to be an exception. In Mitchell, a DUI defendant argued that a warrantless blood draw was unconstitutional. Justice Alito and three additional justices ruled that when a DUI suspect is unconscious, it “almost always” satisfies the exigent circumstances exception to permit a warrantless blood draw. Justice Thomas provided the necessary fifth vote — concurring in judgment but explaining that he would impose a more expansive rule that created an exigent circumstance in every DUI case “regardless of whether the driver is conscious.”

Justice Alito’s opinion also stated that there may be situations where police encountering an unconscious DUI suspect won’t give rise to exigent circumstances. Because Mitchell had not been given an opportunity to prove an absence of exigent circumstances, the case was remanded to give Mitchell an opportunity to do so. But because Mitchell was decided by a fragmented U.S. Supreme Court, only the position that had the consent of at least five justices can be said to be the true “holding.” Marks v. United States, 430 U.S. 188 (1977). The ruling that Mitchell was to prove the absence of exigent circumstances did not have the support of at least five justices.

Because a defendant enjoys constitutional protection from unreasonable searches, the South Carolina Supreme Court opined it “must ... part company with the Mitchell Court, as we will not impose upon a defendant the burden of establishing the absence of exigent circumstances. We have consistently held the prosecution has the sole burden of proving the existence of an exception to the warrant requirement.”

The Court concluded that in Key’s case the question of exigent circumstances was not litigated. Accordingly, the Court reversed the circuit court’s decision and remanded to the summary court with the burden upon the State to establish the existence of exigent circumstances. If the State fails to meet its burden, Key would receive a new trial with the BAC evidence suppressed. If the State establishes exigent circumstances, Key’s conviction will stand. See: State v. Key, 2020 S.C. LEXIS 71(2020).

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