Wisconsin Justices Take Up Constitutionality of Blood Tests for Passed-Out Drivers

A state appellate court previously declared a provision allowing police to draw and test unconscious drivers’ blood unconstitutional after the U.S. Supreme Court punted on the issue in a similar case.

(Pexels image via Courthouse News)

MADISON, Wis. (CN) — The consequential debate over implied consent laws continued in the Wisconsin Supreme Court on Thursday with arguments in a case involving an unconscious driver in the hospital who had her blood drawn and tested for alcohol content by police without securing a warrant.

On Dec. 12, 2014, Dawn 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 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 analysis revealed a controlled substance and an unlawful concentration of alcohol.

Prado later moved to suppress the blood test results on the grounds that the law’s incapacitated driver provision is unconstitutional. The trial court granted the motion after determining the officer did not have authority to draw Prado’s blood without a warrant.

A Wisconsin appeals court declared the law unconstitutional last summer, but ruled that in Prado’s case the officer had acted in good faith with the understanding that the law was constitutional, so the trial court should not have suppressed her test results.

Germane to Prado’s case and Thursday’s arguments is another implied consent case out of Wisconsin that went all the way to 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 had previously ruled in that case that the driver’s extreme intoxication gave the police probable cause for the blood test.

Arguing for the state at Thursday’s virtual hearing, Assistant Attorney General Michael Sanders emphasized that the controlling case law decided by the U.S. Supreme Court makes Prado’s blood draw constitutional and that the only thing the state high court really needs to settle is whether the test results should have been suppressed, which Sanders asserted should have not have happened.

Madison-based attorney Anthony Jurek countered on behalf of Prado that the generally unsound good faith exception should not apply to his client’s case and that the entire case rests on unsettled law.

“The good faith doctrine is a judicially invented rationalization of executive branch lawlessness,” Jurek said, insisting that applying it renders the judiciary complicit in that lawlessness.

Jurek also argued that Prado was unconscious due to brain injuries sustained in her car accident, not because of her relatively moderate blood alcohol content. He charged that the law gives unconscious citizens less protections than conscious ones and effectively allows the legislature to unconstitutionally consent on behalf of citizens.

Justice Brian Hagedorn pushed Sanders to defend the constitutionality of the implied consent law through comparison with a hypothetical law that would allow the state to search every person who walked into the state Capitol, positing that he could not think of another context in which the legislature can simply declare “oh, by the way, you consented to this.”

Sanders maintained that the implied consent law has been consistently defended, in part because a refusal to comply with an officer’s request for a blood draw does not result in the driver being jailed. In any case, he said, Prado cannot prove that the law is unconstitutional on the whole or as applied to her.

In rebuttal, Jurek offered that unconscious people are “axiomatically unable to give consent,” pointing to the way consent works in cases of the sexual assault of someone who is unconscious. Despite Sanders’ opinion that the high court need not address the constitutionality of the law, Jurek asserted that judicial prudence does not necessitate ceding to the legislature and allowing a patently unconstitutional law to remain on the books.

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