State v. Dawn M. Prado ( 2021 )

2021 WI 64SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP308-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Dawn M. Prado,
Defendant-Respondent-Cross Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 393 Wis. 2d 526, 947 N.W.2d 182PDC No:2020 WI App 42 - Published
OPINION FILED: June 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 18, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: David T. Flanagan, III
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which REBECCA GRASSL BRADLEY, DALLET, HAGEDORN, and
KAROFSKY, JJ., joined. ROGGENSACK, J., filed a concurring
opinion, in which ZIEGLER, C.J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Anthony Jurek and AJ Attorney, the Law Office of Anthony
Jurek, Middleton. There was an oral argument by Anthony Jurek.
For the plaintiff-appellant, there was a brief filed by
Michael C. Sanders, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Michael C. Sanders.
An amicus curiae brief was filed by Douglas Hoffer, assistant
city attorney, Stephen C. Nick, city attorney and City of Eau
Claire, Eau Claire.
2
2021 WI 64NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP308-CR
(L.C. No. 2015CF859)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
FILED
Dawn M. Prado, JUN 18, 2021
Defendant-Respondent-Cross Sheila T. Reiff
Clerk of Supreme Court
Petitioner.
ANN WALSH BRADLEY, J., delivered the majority opinion of the Court,
in which REBECCA GRASSL BRADLEY, DALLET, HAGEDORN, and KAROFSKY,
JJ., joined. ROGGENSACK, J., filed a concurring opinion, in which
ZIEGLER, C.J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Both the State of Wisconsin and
Dawn Prado seek review of a published decision of the court of
appeals, which determined that Wisconsin's incapacitated driver
provision contained within the implied consent statute, Wis. Stat.
No. 2016AP308-CR
§ 343.305 (2017-18),1 is unconstitutional.2 However, the court of
appeals additionally determined that under the facts of this case,
the application of the good faith exception to the exclusionary
rule allows for the admission of the blood test evidence Prado
sought to suppress.
¶2 The State asks us to review the court of appeals'
determination that the incapacitated driver provision is
unconstitutional. Prado requests review of the court of appeals'
application of the good faith exception and its conclusion that
the evidence need not be suppressed despite the constitutional
violation.
¶3 We conclude that the incapacitated driver provision is
unconstitutional beyond a reasonable doubt. 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.
¶4 However, we further conclude that under the facts of
this case, law enforcement drew Prado's blood in reasonable
reliance on a statute that had not been determined to be
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version unless otherwise indicated. As the court of
appeals did, we refer to Wis. Stat. § 343.305 as the "implied
consent" statute and the several subsections that pertain to
incapacitated drivers as the "incapacitated driver provision."
State v. Prado, 2020 WI App 42, 393 Wis. 2d 526, 947
2
N.W.2d 182 (reversing order of the circuit court for Dane County,
David T. Flanagan, III, Judge).
2
No. 2016AP308-CR
unconstitutional. Consequently, the good faith exception to the
exclusionary rule applies and the evidence resulting from the draw
of Prado's blood need not be suppressed.
¶5 Accordingly, we affirm the decision of the court of
appeals.
I
¶6 On the evening of December 12, 2014, law enforcement was
called to a serious two-vehicle crash in Fitchburg. An initial
investigation revealed that a black minivan had crossed the center
line and struck a red Pontiac. Upon arrival, police found one
person deceased; one person, later identified as Prado, ejected
from a vehicle; and a third person, later identified as Deshonn
Banks, standing near one of the involved vehicles.
¶7 Fitchburg police officer Andre Poehnelt made contact
with Banks, who stated that he had been sleeping at the time of
the crash and was not the driver. He further indicated that "Dawn"
was driving.
¶8 Dawn Prado had been thrown from her vehicle and was found
lying in a ditch. An off-duty firefighter who came upon the scene
rendered aid to her. He rolled Prado over and upon doing so
smelled the odor of intoxicants on her breath.
¶9 Ultimately, Prado was transported to a nearby hospital.
Officer Johnathan Parker was sent to the hospital to make contact
with Prado. Upon Officer Parker's arrival at the hospital, he
found Prado intubated and unconscious.
3
No. 2016AP308-CR
¶10 Despite Prado's unconscious state, Officer Parker read
to Prado the statutory "Informing the Accused" form.3 Being
unconscious, Prado did not respond. Officer Parker then instructed
a nurse to conduct a draw of Prado's blood. He did not apply for
a warrant and he testified that it did not occur to him to do so
because the incapacitated driver provision applied. A subsequent
test of Prado's blood revealed an alcohol concentration of 0.081
percent, over four times Prado's legal limit, which due to her
prior convictions was set at 0.02 percent.4
¶11 Prado was ultimately charged with nine separate counts
arising from the crash.5 She moved to suppress the blood test
results, arguing that the incapacitated driver provision sets
forth an unconstitutional per se exception to the warrant
requirement in cases where a driver is unconscious.
3 See Wis. Stat. § 343.305(4).
4 See Wis. Stat. § 340.01(46m)(c).
5 Initially, Prado was charged with: (1) homicide by
intoxicated use of a vehicle while having a prior intoxicant-
related conviction contrary to Wis. Stat. § 940.09(1)(a) and
(1c)(b); (2) homicide by use of a vehicle with a prohibited alcohol
concentration while having a prior intoxicant-related conviction
contrary to § 940.09(1)(b) and (1c)(b); (3) operating while
intoxicated causing injury as a second and subsequent offense
contrary to Wis. Stat. §§ 346.65(3p) and 346.63(2)(a)1.; (4)
operating with a prohibited alcohol concentration causing injury
as a second and subsequent offense contrary to §§ 346.65(3p) and
346.63(2)(a)2.; (5) operating while intoxicated as a fourth
offense contrary to §§ 346.63(1)(a) and 346.65(2)(am)4.; and (6)
operating with a prohibited alcohol concentration as a fourth
offense contrary to §§ 346.63(1)(b) and 346.65(2)(am)4. Three
counts related to driving while having a detectable amount of a
restricted controlled substance in her blood were later added.
4
No. 2016AP308-CR
¶12 Agreeing with Prado, the circuit court granted the
motion to suppress. It determined that the blood draw was taken
without Prado's consent and without the authority of a search
warrant in violation of the Fourth Amendment. Further, it declined
to apply the good faith exception, concluding that Missouri v.
McNeely, 569 U.S. 141 (2013), clearly required a warrant and "the
claim of good faith cannot carry the day when a warrant was just
a phone call away and had been so available for well over a year."
¶13 The State appealed, and the court of appeals reversed
the circuit court's decision. State v. Prado, 2020 WI App 42, 393
Wis. 2d 526, 947 N.W.2d 182. Although its ultimate mandate was to
reverse, the court of appeals agreed with the circuit court
regarding the unconstitutionality of the incapacitated driver
provision. Specifically, the court of appeals concluded 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 the searches are justified by
a separate warrant exception." Id., ¶64.
¶14 Further, the court of appeals reasoned that even if a
separate exception to the warrant requirement applied in a given
case, "that does not save the constitutionality of the
incapacitated driver provision." Id. In the court of appeals'
view, this is because "[i]f a court ultimately determines that
such a search is constitutional in any given case, it will be on
the basis of an exception such as exigent circumstances, not on
5
No. 2016AP308-CR
the basis of anything set forth in the implied consent statute
itself." Id.
¶15 Where the court of appeals diverged from the circuit
court was in its application of the good faith exception. Contrary
to the circuit court, the court of appeals determined that "the
State has met its burden to show that the officer who ordered the
warrantless blood draw acted in objective good-faith reliance on
the incapacitated driver provision." Id., ¶73. Accordingly, it
concluded that the blood test results need not be suppressed. Id.,
¶74.
¶16 Both the State and Prado petitioned for review of the
court of appeals' decision. The State asked this court to review
the court of appeals' conclusion that the incapacitated driver
provision is unconstitutional, while Prado sought review of the
court of appeals' determination that the good faith exception
applies and precludes suppression of the blood test evidence. This
court granted both petitions.
II
¶17 This case requires us to first determine the
constitutionality of the incapacitated driver provision. The
constitutionality of a statute presents a question of law we decide
independently of the determinations rendered by the circuit court
and court of appeals. State v. Weidner, 2000 WI 52, ¶7, 235
Wis. 2d 306, 611 N.W.2d 684. A party challenging a statute as
unconstitutional must demonstrate that it is unconstitutional
beyond a reasonable doubt. State v. Wood, 2010 WI 17, ¶15, 323
Wis. 2d 321, 780 N.W.2d 63.
6
No. 2016AP308-CR
¶18 We are also asked to determine whether the good faith
exception to the exclusionary rule applies in this case. The
application of the good faith exception is likewise a question of
law we review independently of the decisions of the circuit court
and court of appeals. State v. Scull, 2015 WI 22, ¶17, 361
Wis. 2d 288, 862 N.W.2d 562.
III
¶19 We begin by setting forth the statutory provisions on
which our analysis centers. Next, we recount the history of the
issue now before us in previous litigation before the court of
appeals, this court, and the United States Supreme Court. With
this background in hand, we then address the constitutionality of
the incapacitated driver provision.6 Finally, we turn to the
application of the good faith exception to the exclusionary rule.
A
¶20 In an effort to curb the devastating effects of drunk
driving on Wisconsin roads, this state (like all others) has passed
laws prohibiting operating while intoxicated and operating with a
prohibited alcohol concentration. See Wis. Stat. § 346.63(1).
Further, Wisconsin has passed an implied consent law, which is
6 Prado contends that the State lacks standing to petition
for review of the court of appeals' determination that the
incapacitated driver provision is unconstitutional because the
court of appeals' decision was not adverse to the State. We
disagree. A decision that is "partially adverse to the State" is
sufficient to allow the State to appeal. State v. Bentdahl, 2013
WI 106, ¶21, 351 Wis. 2d 739, 840 N.W.2d 704. Although the court
of appeals ultimately decided in the State's favor, it also
determined that the incapacitated driver provision is
unconstitutional——a determination adverse to the State.
7
No. 2016AP308-CR
designed to facilitate the gathering of evidence to remove drunk
drivers from the road. State v. Zielke, 137 Wis. 2d 39, 41, 403
N.W.2d 427 (1987).
¶21 The implied consent statute, Wis. Stat. § 343.305(2),
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).
¶22 When a law enforcement officer requests a specimen
pursuant to the implied consent law, the officer is required to
read to the suspect the "Informing the Accused" form.7 Wis. Stat.
7 The "Informing the Accused" form provides:
You have either been arrested for an offense that
involves driving or operating a motor vehicle while
under the influence of alcohol or drugs, or both, or you
are the operator of a vehicle that was involved in an
accident that caused the death of, great bodily harm to,
or substantial bodily harm to a person, or you are
suspected of driving or being on duty time with respect
to a commercial motor vehicle after consuming an
intoxicating beverage.
This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine
the concentration of alcohol or drugs in your system.
If any test shows more alcohol in your system than the
law permits while driving, your operating privilege will
be suspended. If you refuse to take any test that this
agency requests, your operating privilege will be
revoked and you will be subject to other penalties. The
8
No. 2016AP308-CR
§ 343.305(4). The form is "designed to inform drivers of the
rights and penalties applicable to them." State v. Piddington,
2001 WI 24, ¶18, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting Cnty. of
Ozaukee v. Quelle, 198 Wis. 2d 269, 279, 542 N.W.2d 196 (Ct. App.
1995)).
¶23 It sets forth the consequences of refusing the test,
which include revocation of operating privileges, and the
consequences of consenting to the test, i.e., that the results can
be used against the suspect in court. Wis. Stat. § 343.305(4).
Essentially, the implied consent statute gives those who are
capable of responding a choice: submit to the test and risk that
the results are presented in court, or refuse the test and face
license revocation and other civil penalties. See § 343.305(9).
The court of appeals has described the operation of the implied
consent statute as follows:
test results or the fact that you refused testing can be
used against you in court.
If you take all the requested tests, you may choose to
take further tests. You may take the alternative test
that this law enforcement agency provides free of
charge. You also may have a test conducted by a
qualified person of your choice at your expense. You,
however, will have to make your own arrangements for
that test.
If you have a commercial driver license or were operating
a commercial motor vehicle, other consequences may
result from positive test results or from refusing
testing, such as being placed out of service or
disqualified.
Wis. Stat. § 343.305(4).
9
No. 2016AP308-CR
[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. Framed
in the terms of "implied consent," choosing the "yes"
option affirms the driver's implied consent and
constitutes actual consent for the blood draw. Choosing
the "no" option acts to withdraw the driver's implied
consent and establishes that the driver does not give
actual consent. Withdrawing consent by choosing the
"no" option is an unlawful action, in that it is
penalized by "refusal violation" sanctions, even though
it is a choice the driver can make.
State v. Padley, 2014 WI App 65, ¶39, 354 Wis. 2d 545, 849
N.W.2d 867.
¶24 When a suspect is unconscious or incapacitated, that
person obviously cannot respond to the choice presented by the
"Informing the Accused" form. Accordingly, officers are not
required to read the form to an unconscious person because such an
exercise would be "useless." State v. Disch, 129 Wis. 2d 225,
233-34, 385 N.W.2d 140 (1986).
¶25 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 . . . ." As a result, if a law enforcement
officer has probable cause to believe that an incapacitated person
has violated the OWI statutes, the statute indicates that the
officer may take blood from the person for testing without a search
warrant. § 343.305(3)(b).
¶26 Thus, as the court of appeals in this case set forth,
"on its face, the incapacitated driver provision purports to
authorize blood draws of incapacitated drivers solely based on
10
No. 2016AP308-CR
statutorily implied consent." Prado, 393 Wis. 2d 526, ¶18. The
instant case is not the first time we have wrestled with this
attribute of the incapacitated driver provision, and it is this
history to which we turn next.
B
¶27 The issue we address today has taken a long and winding
road to get here. It begins in 1993 with this court's decision in
State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). In
Bohling, the court determined that the dissipation of alcohol in
a person's bloodstream is a sufficient exigency so as to justify
a warrantless blood draw from a person arrested for a drunk driving
offense under ordinary circumstances. Id. at 547-48. This per se
exigency rule was the law in this state for 20 years. State v.
Kennedy, 2014 WI 132, ¶28, 359 Wis. 2d 454, 856 N.W.2d 834.
¶28 In 2013, the United States Supreme Court fundamentally
"changed the landscape of warrantless blood draws in Wisconsin"
and around the country with its decision in McNeely, 569 U.S. 141.
State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d 421, 857
N.W.2d 120. The McNeely Court spurned the notion that the
dissipation of alcohol in the bloodstream constitutes a per se
exigency and instead determined that "[w]hether a warrantless
blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the
circumstances." McNeely, 569 U.S. at 156.
¶29 The United States Supreme Court followed McNeely with
its decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.
Ct. 2160 (2016). There, the Court considered whether a law making
11
No. 2016AP308-CR
"it a crime for a motorist to refuse to be tested after being
lawfully arrested for driving while impaired" violates the Fourth
Amendment. Id. at 2166-67. In its analysis, the Court centered
on the search incident to arrest exception to the warrant
requirement. Drawing a distinction between a breath test and a
blood test, the Court concluded that "the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving."
Id. at 2184.
¶30 The Court, however, indicated that a blood test is a
wholly separate matter. Having previously recognized that a blood
test is an "intrusion[] beyond the body's surface" that implicates
"interests in human dignity and privacy[,]" Schmerber v.
California, 384 U.S. 757, 769-70 (1966), the Birchfield Court
explained that the privacy interests that attend a blood test are
greater than those involved in a breath test.8 Birchfield, 136 S.
Ct. at 2178. As such, it concluded that although the
administration of a breath test is permissible as a search incident
A blood test can provide a
8 much greater amount of
information than a simple breath test:
[A] blood test, unlike a breath test, places in the hands
of law enforcement authorities a sample that can be
preserved and from which it is possible to extract
information beyond a simple BAC reading. Even if the
law enforcement agency is precluded from testing the
blood for any purpose other than to measure BAC, the
potential remains and may result in anxiety for the
person tested.
Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2178
(2016).
12
No. 2016AP308-CR
to arrest for drunk driving, the administration of a blood test is
not. Id. at 2185.
¶31 Of particular note, the Birchfield court acknowledged
that "prior opinions have referred approvingly to the general
concept of implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply." Id.
at 2185. Yet, the Court further concluded that criminal penalties
may not be imposed for a refusal. Id. In reaching this
determination, it emphasized: "There must be a limit to the
consequences to which motorists may be deemed to have consented by
virtue of a decision to drive on public roads." Id.
¶32 The change in the United States Supreme Court's approach
to warrantless breath and blood tests on drunk driving suspects as
manifested in McNeely and Birchfield gave rise to several
challenges in Wisconsin that reached this court. First, in State
v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812, the court
of appeals certified to this court the very question we now
address: the constitutionality of the incapacitated driver
provision. The Howes court ultimately upheld the search at issue
in that case in a split decision. Nevertheless, the court issued
13
No. 2016AP308-CR
no majority opinion declaring any law with regard to the
constitutionality of the incapacitated driver provision.9
¶33 Subsequent to this court's decision in Howes, the court
of appeals again certified to this court a case raising the
constitutionality of the incapacitated driver provision, State v.
Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151. Again,
this court did not issue a majority opinion declaring any law with
regard to the provision's constitutionality. As in Howes, the
search at issue in Mitchell was upheld, but no rationale garnered
a majority vote.10 After Mitchell, the court of appeals again
attempted to certify the issue to this court, but we ultimately
denied the certification. State v. Hawley, No. 2015AP1113-CR,
9Then-Chief Justice Roggensack's lead opinion, joined by
Justice Rebecca Grassl Bradley and Justice Kelly, determined that
the search was permissible due to exigent circumstances. State v.
Howes, 2017 WI 18, ¶3, 373 Wis. 2d 468, 893 N.W.2d 812 (lead
opinion). Justice Gableman's concurrence, joined by Justice
Ziegler, concluded that the incapacitated driver provision is not
facially unconstitutional. Id., ¶57 (Gableman, J., concurring).
Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley
and joined in part by Justice Kelly, determining that the
incapacitated driver provision is unconstitutional. Id., ¶93
(Abrahamson, J., dissenting).
Then-Chief Justice Roggensack's lead opinion, joined by
10
Justice Ziegler and Justice Gableman, determined that the
incapacitated driver provision passes constitutional muster.
State v. Mitchell, 2018 WI 84, ¶3, 383 Wis. 2d 192, 914 N.W.2d 151(lead opinion). Justice Kelly, joined by Justice Rebecca Grassl
Bradley, disagreed with the lead opinion's constitutional analysis
but upheld the search on other grounds. Id., ¶67 (Kelly, J.,
concurring). Justice Ann Walsh Bradley, joined by Justice
Abrahamson, dissented, concluding that the incapacitated driver
provision is unconstitutional. Id., ¶89 (Ann Walsh Bradley, J.,
dissenting).
14
No. 2016AP308-CR
unpublished certification (Wis. Ct. App. Nov. 21, 2018),
certification denied 2019 WI 98, 389 Wis. 2d 33, 935 N.W.2d 680.
¶34 Meanwhile, the United States Supreme Court granted
certiorari in Mitchell. As the court of appeals in the instant
case stated, when it did so "the natural expectation was that the
court would resolve the constitutionality of the incapacitated
driver provision." Prado, 393 Wis. 2d 526, ¶27. Indeed, the case
squarely presented the issue and the State had expressly conceded
that exigent circumstances were not present.
¶35 However, the resulting opinion did not resolve the
question and, like this court's opinions on the subject, did not
produce a majority opinion. Instead of addressing the
constitutionality of the incapacitated driver provision, a four-
justice plurality opinion, authored by Justice Alito, determined
that exigent circumstances "almost always" permit a blood draw
without a warrant from an unconscious drunk driving suspect.
Mitchell v. Wisconsin, 588 U.S. __, 139 S. Ct. 2525, 2531 (2019).
Specifically, the plurality set forth:
When police have probable cause to believe a person has
committed a drunk-driving offense and the driver's
unconsciousness or stupor requires him to be taken to
the hospital or similar facility before police have a
reasonable opportunity to administer a standard
evidentiary breath test, they may almost always order a
warrantless blood test to measure the driver's BAC
without offending the Fourth Amendment. We do not rule
out the possibility that in an unusual case a defendant
would be able to show that his blood would not have been
drawn if police had not been seeking BAC information,
and that police could not have reasonably judged that a
warrant application would interfere with other pressing
needs or duties. Because Mitchell did not have a chance
15
No. 2016AP308-CR
to attempt to make that showing, a remand for that
purpose is necessary.
Id. at 2539.11 Ultimately, the case was remanded to the circuit
court for further proceedings.
C
¶36 With this necessary background in hand, we turn now to
address the issue raised in several of the above-cited cases and
the instant case, namely the constitutionality of the
incapacitated driver provision.
¶37 A party who challenges the constitutionality of a
statute bears a significant burden. We presume that a statute is
constitutional and the challenger must demonstrate that the
statute is unconstitutional beyond a reasonable doubt. Wood, 323
Wis. 2d 321, ¶15.
¶38 Prado asserts that the incapacitated driver provision
violates the Fourth Amendment.12 This Amendment to the United
States Constitution protects against unreasonable searches and
Justice Thomas concurred in the judgment, but did not join
11
the plurality's reasoning. Instead, he concluded that exigent
circumstances will always be present in the case of an unconscious
driver due to the dissipation of alcohol in the bloodstream and
that the Court should do an about face from its holding in McNeely.
Mitchell v. Wisconsin, 588 U.S. __, 139 S. Ct. 2525, 2539 (Thomas,
J., concurring).
Although Prado does not specify with particularity whether
12
her challenge to the incapacitated driver provision is a facial
challenge or an as-applied challenge, like the court of appeals we
understand it to be a facial challenge. See Prado, 393
Wis. 2d 526, ¶30 n.9. A party challenging a law as
unconstitutional on its face must demonstrate that the law cannot
be constitutionally enforced under any circumstances. State v.
Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765 (citing
Michels v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486).
16
No. 2016AP308-CR
seizures.13 State v. Dalton, 2018 WI 85, ¶38, 383 Wis. 2d 147, 914
N.W.2d 120. A warrantless search is presumptively unreasonable
unless an exception to the warrant requirement applies. Id.¶39 Prado argues that consent implied by statute does not
constitute actual consent sufficient for purposes of the Fourth
Amendment. Because the incapacitated driver provision purports to
create a statutory exception to the warrant requirement where
actual consent has not been obtained, Prado asserts that it
violates the Fourth Amendment's proscription of unreasonable
searches.
¶40 Conversely, the State contends that the court of appeals
should have applied the determination of the United States Supreme
Court's plurality opinion in Mitchell, i.e., that a warrantless
search of an unconscious drunk driving suspect is almost always
permissible under the exigent circumstances exception to the
warrant requirement and that it is up to the defendant to
demonstrate that the "unusual case" exception applies. It further
argues that the incapacitated driver provision is constitutional
13 The Fourth Amendment to the United States Constitution sets
forth:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath of affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV.
17
No. 2016AP308-CR
because, pursuant to Mitchell, the blood draws it authorizes are
almost always justified.
¶41 We agree with Prado that the incapacitated driver
provision cannot be constitutionally enforced under any
circumstances and is unconstitutional beyond a reasonable doubt.
In arriving at this conclusion, we begin with the premise that
consent and exigent circumstances are two separate and distinct
exceptions to the Fourth Amendment's warrant requirement. Indeed,
this court has previously set forth that "[t]wo of the carefully
delineated exceptions to the warrant requirement are consent
searches and searches based on exigent circumstances." State v.
Krajewski, 2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d 385.
¶42 The State's essential argument in this case boils down
to an assertion that the incapacitated driver provision is
constitutional because exigent circumstances may have been
present. This argument conflates the consent and exigent
circumstances exceptions to the warrant requirement. The
incapacitated driver provision of the implied consent statute is
not focused on exigent circumstances. As the moniker "implied
consent" connotes, the statute addresses consent, which is an
exception to the warrant requirement separate and apart from
exigent circumstances.
¶43 Thus, the determination of whether there were exigent
circumstances does not involve any application of the
incapacitated driver provision. In other words, if the State
relies on exigent circumstances to justify a search, it is not
relying on the statute. See Prado, 393 Wis. 2d 526, ¶64 ("If a
18
No. 2016AP308-CR
court ultimately determines that such a search is constitutional
in any given case, it will be on the basis of an exception such as
exigent circumstances, not on the basis of anything set forth in
the implied consent statute itself."). Searches of unconscious
drivers may almost always be permissible as the State contends,
but then they are almost always permissible under the exigent
circumstances exception to the warrant requirement pursuant to the
Mitchell plurality, not under the statute.
¶44 In the context of warrantless blood draws, consent
"deemed" by statute is not the same as actual consent, and in the
case of an incapacitated driver the former is incompatible with
the Fourth Amendment. Generally, in determining whether
constitutionally sufficient consent is present, a court will
review whether consent was given in fact by words, gestures, or
conduct. State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786
N.W.2d 430. This inquiry is fundamentally at odds with the concept
of "deemed" consent in the case of an incapacitated driver because
an unconscious person can exhibit no words, gestures, or conduct
to manifest consent.
¶45 Under the incapacitated driver provision, we ask
"whether the driver drove his car" and nothing more. State v.
Brar, 2017 WI 73, ¶¶64-65, 376 Wis. 2d 685, 898 N.W.2d 499 (Kelly,
J., concurring). The statute thus reduces a multifaceted
constitutional inquiry to a single question in a manner
inconsistent with this court's precedent regarding what is
constitutionally required to establish consent.
19
No. 2016AP308-CR
¶46 The constitution requires actual consent, not "deemed"
consent.14 Indeed, consent for purposes of a Fourth Amendment
search must be "unequivocal and specific." State v. Reed, 2018 WI
109, ¶8, 384 Wis. 2d 469, 920 N.W.2d 56. Consent that is "deemed"
by the legislature through the incapacitated driver provision is
neither of these things. It cannot be unequivocal because an
incapacitated person can evince no words, gestures, or conduct to
demonstrate such an intent, and it is generalized, not specific.
¶47 Further, a person has a constitutional right to refuse
a search absent a warrant or an applicable exception to the warrant
requirement. See Dalton, 383 Wis. 2d 147, ¶61. The incapacitated
driver provision does not even afford a driver the opportunity to
exercise the right to refuse such a search. Under the statute,
the constitutional right to refuse a warrantless search is
transformed into simply a matter of legislative grace. Such a
transformation is incompatible with the Fourth Amendment.
¶48 United States Supreme Court precedent further supports
the determination that actual consent and "deemed" consent are
separate and distinct concepts that must be treated differently
under the Fourth Amendment. The concept of a statutory per se
14Courts in several other states have reached similar
conclusions regarding statutes allowing warrantless blood draws on
unconscious drivers. See Bailey v. State, 790 S.E.2d 98, 104-05
(Ga. Ct. App. 2016), overruled on other grounds by Welbon v. State,
799 S.E.2d 793 (Ga. 2017); Commonwealth v. Dennis, 135 N.E.3d 1070,
1078-79 (Mass. App. Ct. 2019); State v. Vargas, 404 P.3d 416, 422
(N.M. 2017); State v. Romano, 800 S.E.2d 644, 652 (N.C. 2017);
Stewart v. State, 442 P.3d 158, 162 (Okla. Crim. App. 2019); State
v. Ruiz, 581 S.W.3d 782, 786-87 (Tex. Crim. App. 2019).
20
No. 2016AP308-CR
exception to the warrant requirement violates both McNeely and
Birchfield. To explain, in McNeely, the Court concluded that
"[w]hether a warrantless blood test of a drunk-driving suspect is
reasonable must be determined case by case based on the totality
of the circumstances." 569 U.S. at 156. A statutory per se
exception is antithetical to the case by case determination McNeely
mandates.15
¶49 As to Birchfield, the fundamental holding of that Court
was that a blood test cannot be administered as a search incident
to arrest for drunk driving. Birchfield, 136 S. Ct. at 2185. Yet
what the State seeks through the incapacitated driver provision is
just what Birchfield disallowed——a per se exception essentially
allowing a blood test on an unconscious driver as a search incident
to an arrest for drunk driving. Further, in Birchfield the United
States Supreme Court addressed the situation we encounter here.
Specifically, it set forth:
It is true that a blood test, unlike a breath test, may
be administered to a person who is unconscious (perhaps
as a result of a crash) or who is unable to do what is
needed to take a breath test due to profound intoxication
15We recognize that McNeely was an exigent circumstances case
and not a consent case. However, subsequent case law has hinted
at a broad application of the case by case determinations McNeely
requires. In Aviles v. Texas, 571 U.S. 1119 (2014), the Court
vacated a judgment upholding a warrantless blood draw based solely
on consent derived through Texas's implied consent statute and
remanded to the Texas court of appeals for further consideration
in light of McNeely. On remand, the Texas appellate court
concluded that the Texas implied consent statute "flies in the
face of McNeely's repeated mandate that courts must consider the
totality of the circumstances of each case." Aviles v. State, 443
S.W.3d 291, 294 (Tex. Ct. App. 2014).
21
No. 2016AP308-CR
or injuries. But we have no reason to believe that such
situations are common in drunk-driving arrests, and when
they arise, the police may apply for a warrant if need
be.
Id. at 2184-85 (emphasis added). Such a warrant application is
thus necessary unless another recognized exception to the warrant
requirement applies.
¶50 The Birchfield Court additionally opined: "There must
be a limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public roads."
Id. at 2185. A warrantless search on an unconscious person that
is justified only by statutorily "deemed" consent and no recognized
exception to the warrant requirement lies beyond that limit.
¶51 Contrary to the State's argument, the United States
Supreme Court's decision in Mitchell does not change this
conclusion. The plurality's determination in Mitchell said
nothing about the constitutionality of the incapacitated driver
provision, but simply said that exigent circumstances will almost
always be present in the situation that the statute addresses.
Mitchell, 139 S. Ct. at 2531. Because Mitchell addressed exigent
circumstances and not consent, reliance on Mitchell does not equate
to reliance on the statute and that case thus does not affect our
determination. As the court of appeals put it:
[E]ven if a separate warrant exception may often
apply . . . that does not save the constitutionality of
the incapacitated driver provision. If a court
ultimately determines that such a search is
constitutional in a given case, it will be on the basis
of an exception such as exigent circumstances, not on
the basis of anything set forth in the implied consent
statute itself.
22
No. 2016AP308-CR
Prado, 393 Wis. 2d 526, ¶64.
¶52 We recognize that our determination in the instant case
is inconsistent with the court of appeals' conclusion in State v.
Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745. In
Wintlend, the court of appeals concluded that drivers give implied
consent to the type of search at issue here when they apply for a
Wisconsin driver's license, and that such consent is consistent
with the Fourth Amendment. Id., ¶¶13, 17. In other words, the
Wintlend court determined that actual consent provided at the scene
of an accident or arrest is irrelevant because the driver already
gave consent through the act of applying for a license. See Prado,
393 Wis. 2d 526, ¶35.
¶53 This result cannot stand given our conclusion in the
present case. To the extent that Wintlend rested on a premise
that a driver consents to a search through the simple act of
applying for a driver's license, it must be overruled. Such a
conclusion does not take into account the constitutionally
significant difference between "deemed" and actual consent we
explain above.
¶54 Accordingly, we conclude that the incapacitated driver
provision is unconstitutional beyond a reasonable doubt. 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.
23
No. 2016AP308-CR
IV
¶55 The determination that the incapacitated driver
provision is unconstitutional does not end our inquiry. We turn
next to the applicability of the good faith exception to the
exclusionary rule. The application of the good faith exception is
examined on a case by case basis. See United States v. Leon, 468
U.S. 897, 918 (1984).
¶56 Evidence obtained through an unlawful search is
ordinarily excluded at trial. State v. Blackman, 2017 WI 77, ¶68,
377 Wis. 2d 339, 898 N.W.2d 774. However, the exclusionary rule
bar is not absolute, instead requiring the weighing of pertinent
interests. Kennedy, 359 Wis. 2d 454, ¶36 (citing State v. Eason,
2001 WI 98, ¶43, 245 Wis. 2d 206, 629 N.W.2d 625). As such, courts
have crafted some exceptions to the rule where exclusion of the
evidence would not serve the exclusionary rule's purpose.
¶57 "[T]he exclusionary rule serves to deter deliberate,
reckless, or grossly negligent conduct, or in some circumstances
recurring or systemic negligence." Herring v. United States, 555
U.S. 135, 144 (2009). "To trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system." Id.¶58 While the exclusionary rule serves to protect the
constitutional rights of defendants, as a necessary consequence it
also "interfere[s] with the criminal justice system's truth-
finding function." Leon, 468 U.S. at 907. "Particularly when law
enforcement officers have acted in objective good faith or their
24
No. 2016AP308-CR
transgressions have been minor, the magnitude of the benefit
conferred on . . . guilty defendants offends basic concepts of the
criminal justice system." Id. at 907-08.
¶59 With these competing principles in mind, the United
States Supreme Court and this court have recognized a good faith
exception providing limited circumstances in which evidence
obtained in violation of the Fourth Amendment is not excluded at
trial. See Blackman, 377 Wis. 2d 339, ¶70. First, "[t]he good
faith exception has generally been applied when a law enforcement
officer has reasonably and objectively relied on settled law
(whether statute or binding judicial precedent) that was
subsequently overruled." Id. (citation omitted). Second, the
exception is applicable when law enforcement relies on "a warrant
that was subsequently invalidated or that was based on erroneous
information resulting from isolated police negligence attenuated
from the arrest." Id. (citations omitted).
¶60 The court of appeals in the instant case applied the
good faith exception and determined that the evidence obtained as
a result of the unconstitutional blood draw need not be suppressed.
It reasoned that "the State has met its burden to show that the
officer who directed the warrantless blood draw acted in objective
good-faith reliance on the incapacitated driver provision."
Prado, 393 Wis. 2d 526, ¶71. "At the time that Prado's blood was
drawn, the incapacitated driver provision had been on the books
for decades, and its constitutionality had not been challenged in
any published appellate decision." Id.25
No. 2016AP308-CR
¶61 Prado contends that the court of appeals' application of
the good faith exception was in error. She asserts that the law
surrounding the incapacitated driver provision was not well-
settled so as to justify law enforcement's reliance on it.
Additionally, Prado argues that use of the exclusionary rule should
be expanded beyond mere deterrence of police misconduct, and should
be applied as a remedy for constitutional violations.
¶62 We disagree with Prado's argument on this point. First,
accepting Prado's argument would run afoul of the United States
Supreme Court's decision in Illinois v. Krull, 480 U.S. 340 (1987).
In Krull, the Court considered whether the good faith exception
"should be recognized when officers act in objectively reasonable
reliance upon a statute authorizing warrantless administrative
searches, but where the statute is ultimately found to violate the
Fourth Amendment." Id. at 342.
¶63 Answering this question in the affirmative, the Court
stated: "The application of the exclusionary rule to suppress
evidence obtained by an officer acting in objectively reasonable
reliance on a statute would have as little deterrent effect on the
officer's actions as would the exclusion of evidence when an
officer acts in objectively reasonable reliance on a warrant."
Id. at 349. The Court further explained:
Unless a statute is clearly unconstitutional, an officer
cannot be expected to question the judgment of the
legislature that passed the law. If the statute is
subsequently declared unconstitutional, excluding
evidence obtained pursuant to it prior to such a judicial
declaration will not deter future Fourth Amendment
26
No. 2016AP308-CR
violations by an officer who has simply fulfilled his
responsibility to enforce the statute as written.
Id. at 349-50. This court has echoed such a maxim, referencing a
statute as "settled law" for purposes of the exclusionary rule.
Blackman, 377 Wis. 2d 339, ¶70.
¶64 These principles apply here. We can discern no reason
for applying the good faith exception based on objectively
reasonable reliance on a warrant or court decision, but not on a
statute. At the time of the search at issue, the incapacitated
driver provision remained in effect and had not been declared
unconstitutional. Officer Parker testified that it never occurred
to him to attempt to procure a search warrant due to the existence
of the statute.16
¶65 Even accepting arguendo Prado's contention that court
decisions had muddied the status of the incapacitated driver
provision, what is clear is that no court had explicitly declared
it to be unconstitutional until now. It would be unreasonable to
expect a police officer to synthesize the relevant case law to
divine that the statute was unconstitutional when no court had
clearly said so.
¶66 We also are compelled to decline Prado's invitation to
redefine the breadth of the exclusionary rule. Prado seeks to
apply the exclusionary rule not as a deterrent to police
Although our good faith inquiry is objective, when
16
examining whether a reasonably well trained officer would have
known that a search was illegal in light of all the circumstances,
we recognize that those circumstances "frequently include a
particular officer's knowledge and experience." Herring v. United
States, 555 U.S. 135, 145 (2009).
27
No. 2016AP308-CR
misconduct, but as a remedy in and of itself to constitutional
violations.
¶67 Adherence to the principle of stare decisis dictates
that we reject Prado's argument. Stare decisis, the principle
that courts must stand by things decided, is fundamental to the
rule of law. Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶66, 389
Wis. 2d 669, 937 N.W.2d 37 (citation omitted). Any departure from
stare decisis requires "special justification." Schultz v.
Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266.
¶68 Just three years ago, a majority of this court in State
v. Kerr, 2018 WI 87, ¶6, 383 Wis. 2d 306, 913 N.W.2d 787,
circumscribed the breadth of the exclusionary rule, emphasizing
that police misconduct is the essence of the inquiry. Prado has
not provided a compelling "special justification" that would cause
us to revisit this recent determination.
¶69 We therefore conclude that under the facts of this case
law enforcement drew Prado's blood in reasonable reliance on a
statute that had not been determined to be unconstitutional.
Accordingly, the good faith exception to the exclusionary rule
applies and the evidence resulting from the draw of Prado's blood
need not be suppressed.
V
¶70 In sum, we conclude that the incapacitated driver
provision is unconstitutional beyond a reasonable doubt. The
provision's "deemed" consent authorizes warrantless searches that
do not fulfill any recognized exception to the warrant requirement
28
No. 2016AP308-CR
and thus the provision violates the Fourth Amendment's
proscription of unreasonable searches.
¶71 However, we further conclude that under the facts of
this case, law enforcement drew Prado's blood in reasonable
reliance on a statute that had not been determined to be
unconstitutional. Consequently, the good faith exception to the
exclusionary rule applies and the evidence resulting from the draw
of Prado's blood need not be suppressed.
¶72 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
29
No. 2016AP308-CR.pdr
¶73 PATIENCE DRAKE ROGGENSACK, J. (concurring). Although
I agree with the bottom line of the majority opinion, i.e.,
affirming the court of appeals decision that permitted use of the
results of Dawn Prado's blood test in her trial, I do not agree
with 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.1
¶74 I also write to emphasize that there is nothing in the
majority opinion that precludes law enforcement from relying on
the legal standard set out in Mitchell v. Wisconsin, 139 S. Ct.
2525 (2019), to obtain a blood sample from an unconscious driver
for whom law enforcement has probable cause to believe drove while
intoxicated when "it is very likely that the driver would be taken
to an emergency room and that his blood would be drawn for
diagnostic purposes." Id. at 2531.
¶75 Therefore, while the majority opinion reaches a bottom
line result with which I agree, I do not join the opinion.
Accordingly, I concur in mandate only.
1 The majority opinion also does not apply a reasoned
statutory interpretation that presumes the constitutionality of
Wis. Stat. § 343.305. I do not address that failure in this
concurrence because I apply Mitchell v. Wisconsin, 139 S. Ct. 2525(2019), to uphold the search of Prado's blood.
1
No. 2016AP308-CR.pdr
I. BACKGROUND2
¶76 The vehicle Prado was driving crossed the centerline and
collided with an oncoming vehicle, killing the other driver and
injuring Prado's passenger and herself. A first responder saw
Prado lying in a ditch near the crash and smelled the odor of
intoxicants on her breath when he approached her. Prado, who had
three prior OWI convictions, was transported to a hospital.
Officer Parker met the unconscious Prado in the hospital. He read
her the Informing the Accused form and then ordered that Prado's
blood be drawn and tested. Her blood test revealed that she had
a prohibited alcohol concentration (PAC) of 0.081 and that her
blood also contained benzoylecgonine, the major metabolite of
cocaine.3
¶77 Prado was charged with: homicide by intoxicated use of
a motor vehicle, while having a prior OWI-related conviction;
homicide by use of a motor vehicle, while having a PAC; homicide
by use of a motor vehicle with a detectable amount of a restricted
controlled substance; causing injury by operation of a motor
vehicle while intoxicated as a second or subsequent offense;
causing injury by use of a motor vehicle with detectable amount of
a restricted controlled substance as a second or subsequent
2The majority opinion ably sets forth the factual background,
so I recount only that which is necessary to understand the
discussion that follows.
3Benzoylecgonine is the major metabolite of cocaine. A.W.
Jones et al., Concentrations of Cocaine and its Major Metabolite
Benzoylecgonine in Blood Samples From Apprehended Drivers in
Sweden, Forensic Sci. Int'l, May 20, 2008.
2
No. 2016AP308-CR.pdr
offense; operating a motor vehicle while under the influence of an
intoxicant as a 4th offense and three other related counts.
¶78 She moved to suppress the results of her blood test,
claiming that the unconscious driver provisions in Wis. Stat.
§ 343.305(3)(b) and (ar) were unconstitutional, facially and as
applied to her. The circuit court granted suppression because
Prado's blood was drawn without a warrant, and the circuit court
concluded that the lack of a warrant violated her Fourth Amendment
right to be free from unreasonable searches.
¶79 The State appealed. The court of appeals reversed, in
reliance on the good faith exception to the exclusionary rule.
State v. Prado, 2020 WI App 42, ¶66, 393 Wis. 2d 526, 947 N.W.2d
182. However, the court of appeals chose not to apply the legal
standard set out by the Supreme Court in Mitchell. This choice is
interesting because the District IV panel that decided Prado had
two out of three judges who were the same judges as decided State
v. Richards, 2020 WI App 48, ¶12, 393 Wis. 2d 772, 948 N.W.2d 359,
where Mitchell's legal standard for blood draws from an unconscious
driver was employed.
II. DISCUSSION
A. Standard of Review
¶80 We review a grant or denial of a suppression motion
grounded in the Fourth Amendment of the United States Constitution
and Article, I, Section 11 of the Wisconsin Constitution as a
question of constitutional fact. State v. Howes, 2017 WI 18, ¶17,
373 Wis. 2d 468, 893 N.W.2d 812. To answer that question, we
employ a two-step inquiry. Id.3
No. 2016AP308-CR.pdr
¶81 First, we review the circuit court's findings of
historical facts, which we will affirm unless they are clearly
erroneous. Id., ¶18. Second, we independently determine whether
the historical facts establish circumstances sufficient to justify
a warrantless search. Id.
B. General Principles
¶82 A blood draw is a search of the person within the meaning
of the Fourth Amendment. State v. Tullberg, 2014 WI 134, ¶31, 359
Wis. 2d 421, 857 N.W.2d 120. Both "[t]he Fourth Amendment to the
United States Constitution and Article I, Section 11 of the
Wisconsin Constitution protect the right of the people to be secure
in their persons, houses, papers and effects, against unreasonable
searches and seizures." Id., ¶29 (internal quotations and citation
omitted).
¶83 However, the Fourth Amendment and Article I, Section 11
do not proscribe all searches, only those that are "unreasonable."
State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d
463. "An action is 'reasonable' under the Fourth Amendment,
regardless of the individual officer's state of mind, 'as long as
the circumstances, viewed objectively, justify [the] action.'"
Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott v.
United States, 436 U.S. 128, 138 (1978)).
¶84 The Fourth Amendment does not mention securing a warrant
prior to a search. However, in part to protect against
unreasonable searches, we have held that "[a] warrantless search
is presumptively unreasonable." Tullberg, 359 Wis. 2d 421, ¶30.
Nevertheless, there are well-established exceptions to the warrant
4
No. 2016AP308-CR.pdr
requirement. State v. Brar, 2017 WI 73, ¶16, 376 Wis. 2d 685, 898
N.W.2d 499. Exigent circumstances, which include a risk that
evidence will be destroyed, have created exceptions to the warrant
requirement. Howes, 373 Wis. 2d 468, ¶24.
¶85 When exigent circumstances are present in an OWI case,
there are four additional considerations that bear on the
reasonableness of the search.
(1) The blood draw is taken to obtain evidence of
intoxication from a person lawfully arrested for a
drunk-driving related violation or crime, (2) there is
a clear indication that the blood draw will produce
evidence of intoxication, (3) the method used to take
the blood sample is a reasonable one and performed in a
reasonable manner, and (4) the arrestee presents no
reasonable objection to the blood draw.
Id., ¶25 (quoting State v. Kennedy, 2014 WI 132, ¶17, 359 Wis. 2d
454, 856 N.W.2d 834). "[C]lear indication" is supported by the
same facts that yield probable cause to arrest. Howes, 373 Wis. 2d
468, ¶25.
¶86 The required legal standard for addressing the
unconscious driver is set out in Mitchell. As explained by the
plurality, when there is probable cause that an unconscious driver
is under the influence of intoxicants and likely would be treated
at a medical facility for which blood would be drawn for diagnostic
purposes, obtaining a blood sample does not require a warrant.
Mitchell, 139 S. Ct. at 2531.
¶87 Justice Clarence Thomas would have gone farther than the
plurality and concluded that the Court should apply the per se
rule he proposed in Missouri v. McNeely, 569 U.S. 141 (2013).
"Under that rule, the natural metabolization of alcohol in the
5
No. 2016AP308-CR.pdr
blood stream 'creates an exigency once police have probable cause
to believe the driver is drunk,' regardless of whether the driver
is conscious." Mitchell, 139 S. Ct. at 2539 (Thomas, J.,
concurring).
¶88 I note that based on Marks v. United States, 430 U.S.
188, 193 (1977), the plurality opinion written by Justice Alito in
Mitchell has the narrowest grounds supporting the judgment of the
Court, and therefore, it sets the legal standard in regard to
obtaining blood samples from unconscious drivers. In Richards,
393 Wis. 2d 772, the court of appeals applied the Mitchell standard
in a published opinion.
¶89 There, a sheriff's deputy found Donnie Gene Richards
behind the wheel of a motor vehicle at the scene of an accident.
Id., ¶1. He was unconscious and severely injured. Id. The deputy
determined there was probable cause to believe Richards had been
operating the vehicle while intoxicated and that his injuries were
so serious that he would soon be transported by helicopter to a
hospital approximately fifty miles away. Id. Therefore, the
deputy ordered that blood be drawn from Richards before he was
placed in the helicopter. Id.
¶90 Richards was charged with OWI, 12th offense. Id., ¶2.
He moved to suppress the results of the blood test4 because his
blood was drawn without a warrant. Id. The circuit court denied
suppression, finding there were exigent circumstances, which the
court concluded obviated the need for a warrant. Id. On appeal,
4Richards had a PAC of 0.196. State v. Richards, 2020 WI
App 48, ¶12, 393 Wis. 2d 772, 948 N.W.2d 359.
6
No. 2016AP308-CR.pdr
the court of appeals affirmed, "[a]pplying the factors set forth
in Mitchell." Id.C. Prado's Blood Draw
¶91 Prado fitted within the category of exigent circumstance
cases for which no warrant was needed to obtain a sample of her
blood to test for alcohol and other intoxicants. Law enforcement
had probable cause to believe that she drove while intoxicated;
she was unconscious; blood was likely to be drawn for medical
procedures to assist in her care and obtaining a blood sample to
test for intoxicants was compelling because PAC evidence was
"dissipating" and "some other factor create[d] pressing health,
safety or law enforcement needs that would take priority over a
warrant application." Mitchell, 139 S. Ct. at 2537.5 Here, it
was Prado's own health and safety that set law enforcement's
priorities.
¶92 Further, my evaluation of the four additional
considerations that we have reviewed when exigent circumstances
are said to exist confirms that obtaining a sample of Prado's blood
without a warrant was reasonable. First, the parties stipulated
that there was probable cause to believe that Prado was driving
while intoxicated at the time of the accident. Second, there was
probable cause to believe that the blood sample would yield
evidence of intoxicants due to the stipulation and the smell of
5 Mitchell v. Wisconsin, 139 S. Ct. at 2539, left open a
possibility that a warrant might have been required if blood were
not likely to be drawn for medical reasons. However, that
possibility does not apply here, nor does Prado argue that it
applies.
7
No. 2016AP308-CR.pdr
intoxicants about Prado. Third, Prado was unconscious, so there
was no opportunity for an evidentiary breath test.6 Fourth, her
blood sample was taken at a hospital, by hospital staff who had
been securing blood for Prado's medical requirements. Obtaining
a blood sample to test for intoxicants was compelling based on
metabolic evidence destruction. Accordingly, the blood draw was
reasonable and the results of the blood test should not be
suppressed at Prado's trial.
D. Impaired Driver Concerns
¶93 In the case before us, Prado had three OWI convictions
prior to the accident that took the life of the driver of the
vehicle she struck while intoxicated. Drunk drivers causing death
and disarray on Wisconsin's roads are not new phenomenons.
Recently, the Milwaukee Journal Sentinel had a front page article
about a young man who had served five tours of duty in Vietnam
where he was a helicopter pilot. He received more than 100 medals
because of his bravery and dedication to our country. He survived
the war, but shortly after returning home to Wisconsin, he was
killed by a drunk driver. Somehow Wisconsin has to get this
problem under control.
III. CONCLUSION
¶94 Although I agree with the bottom line of the majority
opinion, i.e., affirming the court of appeals decision that
6Blood tests are important for conscious as well as
unconscious drivers because it is only with a blood test that a
driver's use of cocaine will be detected. Prado would have avoided
a charge of driving after ingesting a prohibited substance, e.g.,
cocaine, without a blood test.
8
No. 2016AP308-CR.pdr
permitted use of the results of Dawn Prado's blood test in her
trial, I do not agree with 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.
¶95 I also write to emphasize that there is nothing in the
majority opinion that precludes law enforcement from relying on
the legal standard set out in Mitchell to obtain a blood sample
from an unconscious driver for whom law enforcement has probable
cause to believe drove while intoxicated when "it is very likely
that the driver would be taken to an emergency room and that his
blood would be drawn for diagnostic purposes." Id. at 2531.
¶96 Therefore, while the majority opinion reaches a bottom
line result with which I agree, I do not join the opinion.
Accordingly, I concur in mandate only.
¶97 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
9
No. 2016AP308-CR.pdr
1