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State Supreme Court says law allowing warrantless blood draws from incapacitated drivers is unconstitutional

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A provision in state law that allows blood samples to be taken without a warrant from incapacitated drivers being investigated for drunken driving is unconstitutional, the state Supreme Court said Friday.

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But ruling on the facts of the case that led to the decision, the court said in a unanimous decision that blood drawn from a Madison woman who was unconscious following a fatal crash was permitted because the officer who ordered the blood sample taken without a warrant was operating under the law as it stood at the time, calling it a "good faith" exception.

The court's ruling came in the case of Dawn Prado, now 54, who was charged in 2015 with homicide by drunken driving for a December 2014 crash in Fitchburg that killed another driver. The case has languished since 2016, when a Dane County judge threw out the results of a blood sample taken from Prado, ruling that a police officer should have obtained a search warrant to get the sample.

Since then, the Prado case has awaited appellate court rulings in other cases that appeared to be on point, but none directly answered the questions posed in her case.

Agreeing with the findings of the state 4th District Court of Appeals, which overturned the lower court's ruling and revived the case against Prado, Justice Ann Walsh Bradley wrote in an opinion that was joined by four colleagues that the provision of the state's implied consent law allowing warrantless blood draws from unconscious suspected drunken drivers is unconstitutional.

"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," Bradley wrote. Justice Patience Roggensack wrote separately to disagree with the way the majority came to its conclusion, but she agreed with the bottom line.  Chief Justice Annette Ziegler concurred.

"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," Bradley wrote. "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."

Prado's attorney, Anthony Jurek, was not immediately available for comment.

On Dec. 12, 2014, Prado was driving a black minivan that crossed the centerline on Highway MM in Fitchburg and struck a red Pontiac. The driver of the Pontiac, Janet M. Grady, died at the scene. Prado was thrown from the vehicle. An off-duty firefighter found her, and when he rolled her over he smelled alcohol on her breath.

At the hospital, Prado was intubated and unconscious. Still, a Fitchburg police officer read her the "informing the accused" form, then told a nurse to draw a blood sample from Prado. Her blood alcohol concentration was 0.081 percent, just above the legal limit for most drivers in Wisconsin, but four times the limit for Prado who, because of prior drunken driving convictions, was limited to 0.02 percent. 

Then-Circuit Judge David Flanagan threw out the test result, finding the blood was taken in violation of Prado's Fourth Amendment protections and also required a warrant in light of a then-recent U.S. Supreme Court decision in a Missouri case, which mandated search warrants for such blood draws. He declined to apply the "good faith" exception to the search.

The appeals court reversed, finding that while the provision of law allowing the search is unconstitutional, the "good faith" exception applied.

The provision of the law that would have allowed the search states that a person who is unconscious or otherwise incapacitated is presumed not to have withdrawn consent for a blood draw under Wisconsin's implied consent law. That law generally states that drivers by driving on public roads agree to provide a blood sample if there is probable cause of driving while impaired. 

The U.S. Supreme Court's decision in the Missouri case fundamentally changed the landscape by requiring warrants for blood draws. In this case, Prado argued a blood draw without a warrant is an unreasonable search, while the state contended exigent circumstances -- the dissipation of alcohol in the bloodstream with the passage of time -- justify warrantless blood draws.

Dawn Prado (copy)


On that issue, the court sided with Prado.

"Consent that is 'deemed' by the Legislature through the incapacitated driver provision" is neither "unequivocal" nor "specific," Bradley wrote. "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."

A person also has a right to refuse a search absent a warrant or an applicable exception to the warrant, she added.

"The incapacitated driver provision does not even afford a driver the opportunity to exercise the right to refuse such a search," Bradley wrote. "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."

But in Prado's case, Bradley wrote, the "good faith" exception applies because the incapacitated driver provision was in effect and not yet declared unconstitutional, and the officer testified it never occurred to him to try to get a search warrant because of the provision's existence. 

Despite rulings that dealt with search warrants and blood draws, Bradley wrote, "no court had explicitly declared (the incapacitated driver provision) 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."


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