MADISON, Wis. (CN) --- The Wisconsin Supreme Court on Friday struck down a state law provision allowing police to draw blood from unconscious drivers and test it for alcohol content without a warrant, finding the practice violates Fourth Amendment protections against unreasonable searches.
On Dec. 12, 2014, Dawn Prado was thrown from her car and severely injured in an accident that killed the other driver. An off-duty firefighter who found her lying in a ditch sometime after the accident noted the smell of alcohol on her breath.
While Prado was intubated in her hospital bed, a police officer had a nurse draw a sample of her blood for analysis after reading the unconscious Prado the "informing the accused" script laid out in Wisconsin's implied consent law to ask for permission to draw her blood.
Since she was unconscious, Prado did not answer. The officer, believing he was acting in good faith according to the law, drew her blood without getting a warrant, and the resulting analysis revealed an alcohol content four times Prado's legal limit, which was set at 0.02% due to three prior DUI convictions.
Prado moved to suppress the blood evidence at trial, which the circuit court did because the officer lacked authority to take her blood without a warrant and without Prado's consent. An appeals court later declared the law unconstitutional but averred that since the officer in Prado's case believed he was following a constitutional law in good faith, the trial court should not have suppressed the blood test results.
Both the state and Prado asked the Wisconsin Supreme Court for review, with the state wanting review of the appellate court's unconstitutionality finding and Prado wanting review of its good faith finding. Virtual arguments took place in March ahead of the supreme court's decision on Friday.
"We conclude that the incapacitated driver provision is unconstitutional beyond a reasonable doubt," Justice Ann Walsh Bradley wrote for the majority. "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."
That being said, Bradley also found that "law enforcement drew Prado's blood in reasonable reliance on a statute that had not been determined to be unconstitutional," so the good faith exception applies and Prado's blood test results do not need to be suppressed at trial.
Complicating matters somewhat is a similar Wisconsin case that reached the U.S. Supreme Court, which decided in June 2019 that exigent circumstances almost always justify a warrantless blood draw if the driver is unconscious. The Wisconsin Supreme Court also previously ruled in that case, known as State v. Mitchell, that the driver's extreme intoxication gave the police probable cause for the blood test.
Bradley was not convinced Mitchell applied to Prado's case because Wisconsin's implied consent law specifically has to do with consent, which she considered "an exception to the warrant requirement separate and apart from exigent circumstances."
In a concurring opinion on Friday, Justice Patience Roggensack, joined by Chief Justice Annette Ziegler, agreed with the bottom line that Prado's test results are fair game at trial, but broke from the majority opinion because "its reasoning does not follow the direction of the United States Supreme Court in regard to the evaluation of unconscious drivers."
Roggensack countered that Mitchell applies to Prado because of a legal standard set by Mitchell allowing for law enforcement to test an unconscious driver's blood if they have probable cause the driver drove while intoxicated and the driver's blood is already likely to be drawn in the emergency room for medical reasons, which hospital staff did in Prado's case.
Anthony Jurek, a Madison-based attorney representing Prado, expressed mixed feelings on Friday about the ruling.
Jurek appreciated that the state's highest court "finally got it right" and declared the incapacitated driver provision unconstitutional, calling it "a big win for the people of Wisconsin." He was disappointed, however, that the court acknowledged his client's rights were violated but ultimately refused to provide her with any remedy.
"Instead, they are rewarding the state for violating the constitution, so that is clearly awful," Jurek said.
The attorney said he would have to confer with his client to determine next steps, offering that they could either appeal the good faith issue to the U.S. Supreme Court, "or proceed to trial with unconstitutionally obtained evidence."
The Wisconsin Department of Justice could not be immediately reached for comment on Friday's decision.
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