by Douglas Ankney

The Supreme Court of Wisconsin affirmed the decision of the Court of Appeals (“COA”) that had held the incapacitated driver provision of Wisconsin’s implied consent statute, Wis. Stat, § 343.305(3)(b), is unconstitutional because the provision’s “deemed” consent authorizes warrantless searches in violation of the Fourth Amendment.

Dawn M. Prado was driving a black minivan that crossed the center line and struck a red Pontiac. Upon arrival at the scene, police found an unconscious Prado lying in a ditch, one deceased person, and a man identified as Deshonn Banks, who stated Prado had been driving while he was sleeping. Prado was transported to a nearby hospital; Officer Johnathan Parker was dispatched to the hospital. He found Prado intubated and unconscious.

Despite Prado’s unconscious state, Parker read the statutory “Informing the Accused” form to her. Naturally, the unconscious Prado did not respond, and Parker then instructed a nurse to conduct a draw of Prado’s blood. He did not apply for a warrant because he relied upon the incapacitated driver provision. A subsequent test revealed Prado’s blood-alcohol concentration was 0.081 percent—more than four times her legal limit of 0.02 percent based upon prior convictions. Prado was charged with nine counts, including two homicide-by-use-of-a-vehicle offenses.

Prado moved to suppress the blood test results, arguing that the incapacitated driver provision sets forth an unconstitutional per se exception to the warrant requirement when the driver is unconscious. The circuit court agreed with Prado and granted the motion. The State appealed. The COA agreed with the circuit court that the incapacitated driver provision is unconstitutional. State v. Prado, 947 N.W.2d 182 (Wis. Ct. App. 2020). However, the COA reasoned that the “good-faith exception” to the exclusionary rule applied. The COA reversed the circuit court, concluding that the blood test results need not be suppressed. Id. Both the State and Prado petitioned for review of the COA’s decision, and the Wisconsin Supreme Court granted their petitions, resolving whether the statutory provision is unconstitutional and whether the good-faith exception is applicable to the present case.

The Court observed “[a] party challenging a statute as unconstitutional must demonstrate that it is unconstitutional beyond a reasonable doubt.” State v. Wood, 780 N.W.2d 63 (Wis. 2010). Wisconsin passed its implied consent law to facilitate the gathering of evidence to remove drunk drivers from the roads. State v. Zielke, 403 N.W.2d 427 (Wis. 1987).

The implied consent statute provides: “Any person who ... drives or operates a motor vehicle upon the public highways of this state ... 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 or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs, or other drugs, or any combination [thereof], when requested to do so by a law enforcement officer under sub. (3)(a) or (am) or when required to do so under sub. (3)(ar) or (b).” Wis. Stat. §343.305(2). 

When a law enforcement officer requests a specimen pursuant to the implied consent statute, the officer is required to read the “Informing the Accused” form to the suspect. Wis. Stat. §343.305(4). 

The form informs drivers that they may choose to submit to the request and that the results may be used against them in court. Id. Or the driver may refuse the test and suffer penalties that include license revocation. Id. “[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions.” State v. Padley, 849 N.W.2d 867 (Wis. Ct. App. 2014).

But when a driver is unconscious or incapacitated, that person obviously cannot respond to the choice presented by the “Informing the Accused” form. Therefore, officers are not required to read the form to unconscious persons. State v. Disch, 385 N.W.2d 140 (Wis. 1986). Addressing this scenario, Wis. Stat. §343.305(3)(b) provides: “A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection....” Thus, “on its face, the incapacitated driver provision purports to authorize blood draws of incapacitated drivers solely based on statutorily implied consent.” Prado. 

After reviewing the statutory framework of implied consent, the Court turned its focus to the Fourth Amendment, noting that it protects against unreasonable searches and seizures and all warrantless searches are presumptively unreasonable. State v. Dalton, 914 N.W.2d 120 (Wis. 2018). The presumption may be overcome, and the warrantless search made reasonable if a recognized exception to the warrant requirement applies. Id. One such exception is consent. See State v. Artic, 786 N.W.2d 430 (Wis. 2010). In determining whether consent was given for constitutional purposes, courts review whether consent was given by words, gestures, or conduct. Id. Of course, an unconscious person cannot exhibit any words, gestures, or conduct to manifest consent. Consequently, the Court explained that the concept of an unconscious or incapacitated person’s “deemed” content is inconsistent with the Court’s case law regarding what is required constitutionally to establish consent for Fourth Amendment purposes.

The Court further explained that the concept of a statutory per se exception to the warrant requirement violates U.S. Supreme Court precedent. See Missouri v. McNeely, 569 U.S. 141 (2013); Birchfield v. North Dakota, 136 S. Ct.  2160 (2016). McNeely concluded that a decision whether a warrantless blood test of a drunk driving suspect is reasonable must be made case by case based on the totality of the circumstances. And Birchfield disallowed a blood test of an unconscious driver based on the search-incident-to-arrest exception to the warrant requirement. What Birchfield disallowed is the very conducted permitted by Wisconsin’s incapacitated driver provision, the Court stated. Therefore, the Wisconsin Supreme Court agreed with the COA and held that §343.305(3)(b) is unconstitutional beyond a reasonable doubt. 

Turning to the present case, the Court addressed the good-faith exception to the exclusionary rule. The Court noted that the purpose of the exclusionary rule is to “deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring v. United States, 555 U.S. 135 (2009). By excluding unlawfully obtained evidence it serves to deter those who would deliberately violate the Fourth Amendment. See id.; State v. Blackman, 898 N.W. 2d 774 (Wis. 2017). But there are instances where the deterring effect of the exclusionary rule would serve no purpose; consequently, exclusion of unlawfully obtained evidence would serve only to thwart the truth-finding process. Blackman. This is true when a law enforcement officer “reasonably and objectively relied on settled law (whether statute or binding judicial precedent) that was subsequently overruled.” Id. In such circumstances, the good-faith exception is applied. Id. 

Applying the foregoing principles to the instant case, the Court ruled that the officer relied on settled law that was later found unconstitutional in the instant opinion. Thus, the Court agreed with the COA that the good-faith exception to the exclusionary rule applies and the evidence obtained as a result of Prado’s blood doesn’t need to be suppressed. 

Accordingly, the Court affirmed the COA’s decision. See: State v. Prado, 960 N.W.2d 869 (Wis. 2021). 

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