On June 25, 2020, the Wisconsin Court of Appeals struck down a state statute permitting police to order warrantless blood draws from incapacitated drivers in State of Wisconsin v. Dawn M. Prado. This holding follows a U.S. Supreme Court ruling during the 2018 term that left unsettled whether Wisconsin’s implied consent law satisfies the Fourth Amendment’s warrant requirement.
Wisconsin, like other states, has an “implied consent” law, which deems a driver to have consented to a test for blood alcohol content and controlled substances if an officer has reason to believe the driver has committed a drug or alcohol-related offense. Wisconsin Stat. § 343.305(3) permits law enforcement to order blood draws from unconscious drivers without a warrant by presuming implied consent when a driver is unable to withdraw consent. In 2014, Prado was involved in a fatal car crash resulting in the other driver’s death and transported to a nearby hospital. Police had probable cause to believe that Prado was operating under the influence of alcohol or a controlled substance. The officer administered the verbal consent notices to an intubated and unconscious Prado, and when there was no response, the officer directed a nurse to draw a blood sample from Prado pursuant to Wis. Stat. § 343.305. The blood sample revealed the presence of a controlled substance and a prohibited concentration of alcohol in Prado’s blood.
The Prado appeal was stayed for more than two years pending resolution of other cases concerning Wisconsin’s implied consent law, namely Mitchell v. Wisconsin. In Mitchell, the U.S. Supreme Court declined to directly address the constitutionality of Wisconsin’s implied consent law and remanded for a determination on whether the blood draw qualifies as an exigent circumstance. With no definitive answer from the Wisconsin Supreme Court on three prior occasions and no resolution in Mitchell, the Wisconsin Court of Appeals set precedent by finding the implied consent law unconstitutional in Prado, holding that the implied consent that incapacitated drivers are presumed to have provided does not satisfy any exception to the Fourth Amendment’s warrant requirement against “unreasonable searches and seizures.” Specifically, implied consent does not satisfy the traditional warrant exception for voluntary consent, and implied consent is not independently a warrant exception.
Although the Wisconsin Court of Appeals concluded that the incapacitated driver provision of Wisconsin’s implied consent statute is unconstitutional, it nevertheless held that Prado’s blood test results should not be suppressed because the officer relied on that provision in good faith when he ordered and obtained the blood draw. Accordingly, the circuit court’s order suppressing the evidence was reversed.
Practical Takeaways
Prior to this decision, health care providers who refused to perform police-requested blood draws on incapacitated individuals could be found in violation of Wis. Stat. § 946.40 for refusing to aid an officer. With the Wisconsin Court of Appeals’ decision in Prado, the current general rule is that a police officer may no longer demand warrantless blood draws from incapacitated drivers in Wisconsin. In considering this change, health care organizations may need to revise policies, establish appropriate procedures and/or provide training to health care workers who are involved in the blood draw process for individuals in police custody.
If you have questions about this recent decision or would like assistance reviewing your policies and procedures related to requests by law enforcement, please contact:
- Sara MacCarthy at (414) 721-0478 or smaccarthy@wp.hallrender.com;
- Robin Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com;
- Cara Tolliver at (414) 721-0459 or ctolliver@wp.hallrender.com; or
- Your regular Hall Render attorney.
Special thanks to law clerk, Jenny Kumosz, for her assistance with this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
