State v. Prado

Decision Date25 June 2020
Docket NumberAppeal No. 2016AP308-CR
Citation393 Wis.2d 526,2020 WI App 42,947 N.W.2d 182
Parties STATE of Wisconsin, Plaintiff-Appellant, v. Dawn M. PRADO, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael C. Sanders, assistant attorney general, and Brad D. Schimel, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the briefs of Anthony J. Jurek, of AJ Attorney, the Law Office of Anthony Jurek, Middleton.

Before Blanchard, Kloppenburg, and Graham, JJ.


¶1 Dawn Prado was involved in a fatal car crash, and while she was unconscious, law enforcement directed that a sample of her blood be drawn for chemical testing. The officer who directed the blood draw did not obtain a warrant, and instead relied on the incapacitated driver provision of Wisconsin's implied consent statute. The implied consent statute provides that drivers are "deemed to have given consent" to a blood draw when they drive on a Wisconsin road and certain probable cause requirements are met. WIS. STAT. § 343.305(2) (2017-2018).1 Its incapacitated driver provision further provides that incapacitated drivers are "presumed not to have withdrawn" the consent that is implied by statute. See § 343.305(3)(ar)1., (3)(ar)2., (3)(b). Prado does not dispute that the probable cause requirements were met, but she argues that the blood draw was unconstitutional because implied consent does not satisfy the Fourth Amendment, which prohibits warrantless searches unless a recognized exception to the warrant requirement applies. The circuit court suppressed the result of Prado's blood test, and the State appeals.

¶2 We are again presented with the following question: whether the "implied consent" that incapacitated drivers are deemed to have given by the implied consent statute and presumed not to have withdrawn by its incapacitated driver provision satisfies the Fourth Amendment. We have certified this question to the Wisconsin Supreme Court on three prior occasions, and it was also taken up by the Supreme Court of the United States on certiorari review of a Wisconsin appeal. However, no majority on either court has directly answered the question. The answer is of significant importance to the functioning of the Wisconsin court system. If, as the State contends, Prado had already given Fourth Amendment consent to a warrantless blood draw when she drove on a Wisconsin road, then the fact that the officer did not obtain a warrant could not be a basis for suppressing the resulting blood test. And if we accept the State's contention, when circuit courts are faced with an incapacitated driver scenario in future cases, they would have no basis for suppressing the evidence and no need to evaluate whether some other Fourth Amendment doctrine—such as exigent circumstances or good faith—applies in any individual case.

¶3 We conclude 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. However, we also conclude that the circuit court should not have suppressed the test result in this case because the State has met its burden to prove that the officer who drew Prado's blood acted in objective good-faith reliance on the constitutionality of the incapacitated driver provision. Accordingly, we reverse the order suppressing the test result and remand for further proceedings consistent with this opinion.


¶4 For purposes of this appeal, none of the material facts are in dispute. Two vehicles collided in Fitchburg on December 12, 2014. The police had probable cause to believe that Prado had been the driver of one of the vehicles, and she was severely injured in the crash. The driver of the other vehicle was killed.

¶5 Prado was transported to a nearby hospital. While she was intubated and unconscious in her hospital bed, a police officer went through the formality of reading the "Informing the Accused" script set forth in Wisconsin's implied consent statute and asking Prado to consent to a blood draw. Unsurprisingly, the unconscious Prado did not respond, and the officer directed a nurse to draw a sample of her blood. The officer did not apply for a warrant, and he later testified that he did not believe that a warrant was needed based on the incapacitated driver provision.2 An analysis of the blood sample revealed the presence of a controlled substance and a prohibited concentration of alcohol in Prado's blood.

¶6 Prado moved to suppress the blood test result on the grounds that the incapacitated driver provision is unconstitutional. The State countered that "under the plain language of [Wisconsin's] implied consent law," Prado had "already given consent" to a blood draw by virtue of driving a car on a Wisconsin road, and that "additional consent ... is not required to authorize the taking of a sample for testing." The State also argued that even if the incapacitated driver provision is unconstitutional, the test result should not be suppressed because the officer relied on the statute in good faith. After an evidentiary hearing, the circuit court determined that the officer directed the blood draw without the authority to do so and in the absence of consent, and it suppressed the test result.

¶7 We stayed this appeal for more than two years pending resolution of other Wisconsin appeals that raised the same question about the constitutionality of the incapacitated driver provision. As discussed in greater detail below, those cases did not resolve the issue. In the most recent of these decisions, Mitchell v. Wisconsin , ––– U.S. ––––, 139 S. Ct. 2525, 204 L.Ed.2d 1040 (2019), the United States Supreme Court declined to squarely address the constitutionality of the incapacitated driver provision. See, e.g. , id. at 2551 (Gorsuch, J., dissenting). Even though the State had expressly conceded in the Supreme Court that there were no exigent circumstances and advanced no argument about exigency on appeal, see id. , 139 S. Ct. at 2542 (Sotomayor, J., dissenting), the Mitchell plurality opinion determined that exigent circumstances will "almost always" justify a warrantless blood draw in intoxicated driving cases involving unconscious drivers, id. at 2531. We asked the parties to submit supplemental briefs in light of Mitchell , and the State now asserts for the first time that exigent circumstances justified the warrantless blood draw in this case.


¶8 We begin with a general discussion of implied consent laws and the constitutional issues they raise. We then address a conflict between two of our cases, State v. Wintlend , 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, and State v. Padley , 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867. After concluding that Wintlend has been overruled and that the incapacitated driver provision is unconstitutional, we turn to the State's alternative arguments that the result of Prado's blood test should not be suppressed based on exigent circumstances or good faith.

I. Constitutional and Statutory Landscape

¶9 When law enforcement collects a blood sample for chemical testing, it has conducted a "search" governed by the Fourth Amendment of the United States Constitution. Schmerber v. California , 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This appeal turns on whether Wisconsin's incapacitated driver provision is consistent with the Fourth Amendment's guarantee that the "right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ...." U.S. CONST. amend. IV.

¶10 A warrantless search is unreasonable, and therefore unconstitutional, unless it falls within one of the " ‘specifically established and well-delineated’ exceptions to the Fourth Amendment's warrant requirement." State v. Williams , 2002 WI 94, ¶18, 255 Wis. 2d 1, 646 N.W.2d 834 (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ); see also, e.g. , Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The warrant requirement supports fundamental separation-of-powers principles—it serves as a check on the executive branch by requiring, as a general rule, that law enforcement obtain a warrant from a neutral judicial officer before invading an individual's privacy. See, e.g. , United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div. , 407 U.S. 297, 316, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (the warrant requirement is "an important working part of our machinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly over-zealous executive officers’ who are a part of any system of law enforcement") (quoting Coolidge v. New Hampshire , 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion)).

¶11 When a defendant challenges evidence that has been obtained through a warrantless search, the State bears the burden to establish that the search was justified by a recognized exception to the warrant requirement. State v. Phillips , 2009 WI App 179, ¶7, 322 Wis. 2d 576, 778 N.W.2d 157. Voluntary consent is one of these "established and well-delineated exceptions." See Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Other recognized exceptions include exigent circumstances, see Mitchell , 139 S. Ct. at 2540, and searches incident to arrest, see Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 2182-84, 195 L.Ed.2d 560 (2016).

¶12 Several landmark decisions over the past decade have discussed the interplay between the Fourth Amendment and state implied consent laws, and these decisions have significantly altered the legal landscape that is germane to this appeal. Indeed, the arguments...

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5 cases
  • State v. Prado
    • United States
    • Wisconsin Supreme Court
    • June 18, 2021
  • State v. Harvey
    • United States
    • Wisconsin Court of Appeals
    • October 6, 2022
    ...abrogated by Griffin for the same reasons that Crowley was abrogated by Griffin. See State v. Prado, 2020 WI.App. 42, ¶37 n.11, 393 Wis.2d 526, 947 N.W.2d 182, aff'd, 2021 WI 64, 397 Wis.2d 719, 960 869 (citing Jennings, 252 Wis.2d 228, ¶18) (holding that we are not bound by precedent from ......
  • State v. Richards
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    • Wisconsin Court of Appeals
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    ... ... See id. at 2529. Justice Thomas did not join the four-justice plurality, but concluded that the dissipation of alcohol always presents an exigent circumstance in an OWI case. Id. at 2539 (Thomas, J., concurring); see also State v. Prado , No. 2016AP308-CR, 28, 947 N.W.2d 182, slip op. recommended for publication (WI App June 25, 2020). Justice Thomas advanced a broader reasoning in his concurrence than the reasoning in the plurality opinion written by Justice Alito. Accordingly, the narrowest grounds supporting the judgment in ... ...
  • State v. Harvey
    • United States
    • Wisconsin Court of Appeals
    • October 6, 2022
    ... ... This court did not rely on legal authority other than Crowley for this proposition. We conclude that Chambers was abrogated by Griffin for the same reasons that Crowley was abrogated by Griffin ... See State v. Prado , 2020 WI App 42, 37 n.11, 393 Wis. 2d 526, 947 N.W.2d 182, aff'd , 2021 WI 64, 397 Wis. 2d 719, 960 N.W.2d 869 (citing Jennings , 252 Wis. 2d 228, 18, 647 N.W.2d 142 ) (holding that we are not bound by precedent from this court on matters of federal law when there is a conflict between our ... ...
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