Wisconsin Court Finds Blood Test for Passed-Out Drivers Unconstitutional

A similar case out of the Badger State made its way to the U.S. Supreme Court, but the justices did not rule on the constitutionality of the law at issue.  

MADISON, Wis. (CN) — A provision allowing for an unconscious driver to have their blood drawn and tested was declared unconstitutional by a Wisconsin appeals court Thursday, marking a consequential turn in the ongoing debate on implied consent laws.

A three-judge panel of the Wisconsin Court of Appeals’ District IV in Madison concluded in a 43-page decision that “the incapacitated driver provision is unconstitutional because the implied consent that incapacitated drivers are deemed to have given and presumed not to have withdrawn does not satisfy any exception to the Fourth Amendment’s warrant requirement.”

The ruling penned by Judge Rachel Graham, who was appointed by Democratic Governor Tony Evers last year, notes that “we are not alone in reaching this conclusion.”

“Indeed, the clear majority of state courts to consider this issue within the last decade agree with the conclusion we reach today,” Graham wrote, highlighting the tricky balance implied consent laws must strike between enabling the fact-finding work of police and the Fourth Amendment rights of individuals against warrantless searches.

Wisconsin’s implied consent statute provides that drivers in the state are “deemed to have given consent” to have their blood drawn and tested when they drive on a state road and if police have probable cause to believe a crime has been committed. All 50 states in the U.S. have some kind of implied consent law on the books.

In the Badger State, the statute contains a provision laying out that incapacitated drivers are “presumed not to have withdrawn” the consent implied by the statute, even if they are unconscious.

That was the case for Dawn Prado, the defendant in the case at the heart of Thursday’s decision.

On Dec. 12, 2014, Prado was severely injured in a car accident which resulted in the death of the other car’s driver. 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 statute to ask for consent 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 applying for a warrant, and the analysis revealed a controlled substance and an unlawful concentration of alcohol in Prado’s blood.

Later, Prado moved to suppress the blood test results in court on the grounds that the incapacitated driver provision is unconstitutional. The trial court granted the motion after determining that the officer did not have the authority to direct the blood draw without getting a warrant.

Graham explained in Thursday’s decision that the appeals court then stayed resolution of the state’s appeal for more than two years pending resolution of other Wisconsin appeals raising the same question about whether the incapacitated driver provision is constitutional.

Chief among those appeals was a Wisconsin case that went all the way to the U.S. Supreme Court, which ruled 5-4 last summer that exigent circumstances “almost always” justify a warrantless blood test if a suspected drunk driver is unconscious, even though the court’s liberal wing pointed out that the state never brought up exigency in arguing its case.

That lawsuit ascended to the nation’s highest court after the Wisconsin Supreme Court found that, in that case, the driver’s extreme intoxication gave the police probable cause to carry out a blood test.

Graham noted in Thursday’s decision that even though the Wisconsin Supreme Court has dealt with the incapacitated driver provision on at least three occasions, no court has directly answered the question of the provision’s constitutionality, and “the answer is of significant importance to the functioning of the Wisconsin court system.”

That answer arrived Thursday. Graham wrote that “because the incapacitated driver provision purports to authorize warrantless searches that do not fit within any exception to the warrant requirement, the searches it authorizes will always violate the Fourth Amendment,” unless some other warrant exception exists.

However, the appeals court’s decision also found that since the officer who ordered Prado’s blood drawn relied in good faith on the understanding that the incapacitated driver provision was constitutional, the circuit court should not have suppressed the test results as evidence.

Graham was joined on the panel by Judges JoAnne Kloppenburg and Brian Blanchard rounded out the appeals court panel.

Anthony Jurek, whose namesake firm operates out of Middleton, represented Prado and applauded the appeals court’s decision in an email Thursday.

“I’m delighted that a precedent-setting court has finally stepped up to the plate and done its job,” Jurek said. “Deciding this recurring constitutional issue as it’s been repeatedly presented is something both the Wisconsin and U.S. Supreme Courts have been unable or unwilling to do. It’s a politically loaded issue in a number of ways, and the Wisconsin Court of Appeals showed bravery by finally deciding it.”

Despite being happy with the ruling on the constitutionality of the incapacitated driver provision, Jurek said he was disappointed in the court’s good-faith finding, as “the circuit court’s rejection of ‘good faith’ was clear, cogent, and should not have been reversed.”

In terms of the impact of Thursday’s decision, Jurek said “we’ve finally got a clear precedent that the fictitious consent supposedly granted by the ‘implied consent’ statute is unconstitutional as the sole justification absent any other exception to the Fourth Amendment.”

Sarah Schmeiser, vice president of the Wisconsin Association of Criminal Defense Lawyers, also spoke to the impact of Thursday’s decision in a phone interview Thursday, saying that the ruling helps settle a longstanding argument over whether the statute allows arresting officers to skip the kind of constitutional analysis the Wisconsin Court of Appeals has now crystallized.

Schmeiser noted that “Wisconsin is not the first state to explicitly state that this provision is a Fourth Amendment violation,” but Thursday’s decision alters the state’s implied consent statute and will change how those cases are handled going forward in that “it makes clear that there is now a requirement for a warrant or an already established reason not to get a warrant.”

Madison District Attorney Ismael Ozanne, who represented the state in the Prado case, could not be immediately reached for comment on the ruling Thursday.

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