State v. Prado, Appeal No. 2016AP308-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: GRAHAM, J.
• Citation: 393 Wis.2d 526,2020 WI App 42,947 N.W.2d 182
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Dawn M. PRADO, Defendant-Respondent.
• Docket Number: Appeal No. 2016AP308-CR
• Decision Date: 25 June 2020

393 Wis.2d 526
947 N.W.2d 182
2020 WI App 42

STATE of Wisconsin, Plaintiff-Appellant,
v.
Dawn M. PRADO, Defendant-Respondent.

Appeal No. 2016AP308-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: December 6, 2019
Opinion Filed: June 25, 2020

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.

GRAHAM, J.

947 N.W.2d 184

393 Wis.2d 530

¶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(2017-2018).¹ Its incapacitated driver provision further provides that incapacitated drivers are "presumed not to have withdrawn" the consent that is implied by statute.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consent" that incapacitated drivers are deemed to have given by the implied consent statute and presumed not to have withdrawn by its incapacitated driver provision satisfies the Fourth Amendment.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

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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

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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.

BACKGROUND

¶4 For purposes of this appeal, none of the material facts are in dispute. Two vehicles collided in

393 Wis.2d 532

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

393 Wis.2d 533

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

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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.

DISCUSSION

¶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

393 Wis.2d 534

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)...