OWI – Implied Consent – Blood Test

Listen to this article

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dawn M. Prado

Case No.: 2016AP308-CR

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: OWI – Implied Consent – Blood Test

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). Its incapacitated driver provision further provides that incapacitated drivers are “presumed not to have withdrawn” the consent that is implied by statute.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.

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consent” that incapacitated drivers are deemed to have given by the implied consent statute and presumed not to have withdrawn by its incapacitated driver provision satisfies the Fourth Amendment.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.

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.

Recommended for Publication

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.