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  • InsideTrack
  • July 07, 2021

    OWI Law: New Decision in the Implied Consent, Unconscious Driver Saga

    Wisconsin Supreme Court says state's implied consent law is unconstitutional, cannot be used on its own as a basis to draw blood from suspected drunk drivers who become incapacitated.

    Joe Forward

    police arrest of drunk driver

    July 7, 2021 – Wisconsin courts have repeatedly dealt with an issue related to operating while intoxicated (OWI): Whether a blood sample can be used as evidence if taken, without a warrant, from an unconscious driver suspected of drunk driving.

    The Wisconsin Supreme Court has considered the question several times in the last six years. One case, State v. Mitchell, found its way to the U.S. Supreme Court (2019), which vacated the Wisconsin Supreme Court’s decision to uphold an OWI conviction.

    In Mitchell, a U.S. Supreme Court majority ruled that the exigent circumstances exception to the warrant requirement of the Fourth Amendment almost always permits a blood test without a warrant when the suspect is unconscious, except in unusual cases.

    The court remanded the case to give Mitchell a chance to show his case was unusual. On remand, the circuit court denied his motion to suppress, and his appeal is pending.

    But the U.S. Supreme Court’s Mitchell decision left open a pivotal question for Wisconsin: the Court declined to answer whether Wisconsin’s implied consent law alone justifies a warrantless blood draw on unconscious or incapacitated individuals.

    In a November 2019 Wisconsin Lawyer article, “The Quest for a Warrantless OWI Blood Draw,” Rex Anderegg noted that after Mitchell, “the waters remain a bit murky.”

    The U.S. Supreme Court, in Mitchell, appeared to kick the can back to the Wisconsin Supreme Court, which considered the question twice in recent years but could not reach a majority consensus. In a recent decision, the supreme court reached some finality.

    Implied Consent Law

    Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood, or urine” to determine the presence of drugs or alcohol.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Provisions within section 343.305(3)(ar) (2017-18), the statute that applied in the case, established that “a person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent.”

    In recent years, the Wisconsin Supreme Court justices have been divided on the question of whether the implied consent law is sufficient, alone, to allow warrantless blood draws when drivers are unconscious and incapable of withdrawing consent.

    Recently, in State v. Prado, 2021 WI 64 (June 18, 2021), a Wisconsin Supreme Court majority ruled that Wisconsin’s implied consent law, as applied to incapacitated drivers, is “unconstitutional beyond a reasonable doubt,” which lays this issue to rest (for now).

    “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,” the majority held.

    However, the majority opinion upheld the blood draw based on a “good-faith exception” to the warrant requirement, since the law was unclear at the time of the incident.

    Justice Ann Walsh Bradley wrote the majority opinion, joined by Justice Rebecca Bradley, Justice Brian Hagedorn, Justice Rebecca Dallet, and Justice Jill Karofsky.

    Justice Patience, joined by Chief Justice Annette Ziegler, agreed that the blood test results was admissible at trial, but disagreed with the majority’s reasoning.

    Facts and Decision

    In 2014, law enforcement responded to a two-car crash in Fitchburg, outside Madison. A black minivan had crossed the center line. Dawn Prado was driving the minivan, which struck an oncoming vehicle, killing the driver.

    Prado had been thrown from the vehicle and was lying in a ditch when police arrived. An off-duty police officer on scene rolled her over and smelled intoxicants.

    She was transported to a hospital, and remained unconscious when an officer directed a nurse to do a blood draw. The officer later testified that he did not think to get a warrant because of Wisconsin’s implied consent law for incapacitated drivers.

    Prado’s blood showed she was over the 0.08 limit for alcohol but also had cocaine in her system and with three prior OWI convictions, her legal limit was 0.02.

    She was ultimately charged with homicide by intoxicated use of a vehicle and 11 other charges, including a fourth offense OWI, and three charges based on the controlled substances in her system. Prada moved to suppress the blood test results.

    She argued that the incapacitated driver provision in Wisconsin’s implied consent law is an unconstitutional per se exception to the Fourth Amendment warrant requirement.

    The circuit court agreed and granted the motion to suppress. The circuit court also declined the state’s argument that a “good-faith exception” applied.

    A state appeals court agreed that Wisconsin’s incapacitated driver provision is unconstitutional. However, the appeals court ruled that a “good faith exception” to the warrant requirement applied because “the officer who ordered the warrantless blood draw acted in objective good-faith reliance on the incapacitated driver provision.”

    Majority Decision

    The supreme court unanimously affirmed the ultimate conclusion – the blood test results are admissible as evidence. But the court diverged on the rationale. The outcome was based on exceptions to the warrant requirement, not implied consent.

    As noted, a five-justice majority held that the incapacitated driver provision in Wisconsin’s implied consent law is unconstitutional. That is a holding the Wisconsin Supreme Court has dealt with in recent years, and now put the issue to bed.

    “We agree with Prado that the incapacitated driver provision cannot be constitutionally enforced under any circumstances and is unconstitutional beyond a reasonable doubt,” wrote Justice A.W. Bradley for the five-justice majority.

    The majority noted “consent” and “exigent circumstances” are often raised as exceptions to the warrant requirement, and implied consent is neither of those.

    “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,” Justice A.W. Bradley wrote.

    “[A] person has a constitutional right to refuse a search absent a warrant or an applicable exception to the warrant requirement. The incapacitated driver provision does not even afford a driver the opportunity to exercise the right to refuse such a search.”

    The majority said a per se exception to the warrant requirement, based on implied consent is at odds with U.S. Supreme Court precedent, which requires courts to examine whether an exception applies based on the “totality of the circumstances.”

    In Prada, the majority also ruled that the “good faith exception” to the warrant requirement justified the blood draw.

    "[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,” Justice A.W. Bradley wrote.

    “[L]aw 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.”


    Justice Roggensack wrote a concurring opinion, joined by Chief Justice Annette Ziegler, They agreed with the outcome, but not the majority’s rationale.

    “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,” Justice Roggensack wrote.

    Justice Roggensack argued that the U.S. Supreme Court’s decision in Mitchell sets out the legal standard on the issue of unconscious drivers, and the majority did not follow it.

    “The required legal standard for addressing the unconscious driver is set out in Mitchell,” Justice Roggensack wrote. “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.”

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