Under the Fourth Amendment, warrantless searches are per se unreasonable unless one of the many exceptions to the warrant requirement apply. Recently, the Wisconsin Supreme Court made a definitive ruling on one of the most hotly debated aspects of Operating While Intoxicated litigation -- the implied consent law.
Wisconsin’s implied consent law states that anyone who operates a motor vehicle on a Wisconsin public road is “deemed to have given consent to one or more tests of his or her breath, blood or urine” for the purpose of determining the presence of drugs or alcohol. Wis. Stats. § 343.305(2). The statute includes an additional provision, which states that “a person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent.” Wis. Stats. § 343.305(3)(b). In 2019, a Wisconsin case on the implied consent law made it to the United States Supreme Court, holding that the exigent circumstances exception to the warrant requirement of the Fourth Amendment almost always allows for a warrantless blood draw absent very unusual circumstances. Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019). However, the U.S. Supreme Court declined to answer whether Wisconsin’s implied consent law alone could support a warrantless blood draw on an incapacitated or unconscious person and left it up to the Wisconsin Supreme Court to address.
As of this past June, the Wisconsin Supreme Court has finally shed some light on this issue. Recently, in State v. Prado, 2021 WI 64, a majority of the Wisconsin Supreme Court ruled that the implied consent law, as applied to incapacitated drivers, is “unconstitutional beyond a reasonable doubt.” Here is a brief summary of the facts to give a little context:
In 2014, Dawn Prado was involved in a two-car head-on collision in a Madison, Wisconsin suburb. The driver of the other vehicle was killed, and when law enforcement arrived on scene, Ms. Prado was found unconscious and in a ditch. An off-duty officer found rolled her over and reportedly smelled the odor of intoxicants. Ms. Prado was transported to a local hospital, and while still unconscious, a police officer instructed a nurse to do a blood draw. When the results came back from the state hygiene lab, it was discovered that Ms. Prado was over four-times her legal limit, which was .02 based on her prior Operating While Intoxicated convictions. The test revealed that she also had cocaine in her system at the time of the accident. Ms. Prado was ultimately charged with Homicide by Intoxicated Use of A Vehicle and Operating While Intoxicated — Fourth Offense, among several other charges. Ms. Prado, by her attorney, moved to suppress the results of the blood test arguing that the incapacitated driver provision of Wisconsin’s implied consent law is a per se unconstitutional exception to the warrant requirement of the Fourth Amendment. The trial court granted her motion and rejected the State’s good-faith exception argument. The State appealed the trial court’s decision, and the Wisconsin Court of Appeals held that the incapacitated driver provision is unconstitutional, however the officer who ordered the warrantless blood draw acted in good faith based on his reliance on the law as it existed at the time. Both sides then requested review by the Wisconsin Supreme Court.
Ultimately, the Wisconsin Supreme Court affirmed (meaning it upheld) the decision of the Court of Appeals, and by doing so, the Court invalidated the incapacitated driver provision of the implied consent law statewide. The Court went on to say that the “provision’s ‘deemed’ consent authorizes warrantless searches that do not fulfill any recognized exception to the warrant requirement and thus the provision violates the Fourth Amendment’s proscription of unreasonable searches.”
Unfortunately for Ms. Prado, the Court held that the blood draw in her case was admissible at trial based on the good-faith exception to the warrant requirement. Because this area of law was unclear at the time of the incident and the officer who ordered the warrantless blood draw was acting in good-faith reliance on the incapacitated driver provision, the majority agreed that the results of the blood draw should be admissible at trial despite being obtained in violation of the Fourth Amendment. Note that this decision doesn’t mean law enforcement cannot obtain a warrant for a blood draw of a person that is unconscious, nor does it mean that there are no circumstances where a warrantless blood draw might be justified due to other exceptions to the warrant requirement. That said, this ruling gives much needed guidance on a long-standing issue.