Wisconsin Supreme Court Affirms Unconstitutionality of State Statute Permitting Warrantless Blood Draws from Incapacitated Drivers

In State of Wisconsin v. Dawn M. Prado, the Supreme Court of Wisconsin affirmed the earlier 2020 decision of the Wisconsin Court of Appeals (as detailed in a previous Hall Render article), to hold that a provision of Wisconsin’s “implied consent” law (see “Incapacitated driver provision”, Wis. Stat. § 343.305), which permitted police to obtain warrantless blood draws from incapacitated drivers, is unconstitutional in violation of the Fourth Amendment’s prohibition on unreasonable searches.

In arriving at this conclusion, the Court addressed two at-issue exceptions argued in this case, namely the “consent” and “exigent circumstances” exceptions to the Fourth Amendment’s warrant requirement which may justify a warrantless search. Siding with Prado, the Court reasoned that the incapacitated driver provision cannot be constitutionally enforced under any circumstances, explaining that “consent and exigent circumstances are two separate and distinct exceptions” and that given the nature of the incapacitated driver provision to address consent only, the State’s reliance on the statute does not implicate the exigent circumstances exception. Further, the Court clarified that “consent ‘deemed’ by statute is not the same as actual consent” and that “[t]he constitution requires actual consent” which must be “unequivocal and specific.” Accordingly, Wisconsin’s implied consent law insofar as the incapacitated driver provision is concerned did not satisfy any recognized exception to the warrant requirement.

While the incapacitated driver provision of Wisconsin’s implied consent law was struck down, this unconstitutionality holding was not enough to require exclusion of Prado’s blood test results from evidence to save her case. Under the exclusionary rule which generally serves to deter deliberate, reckless or negligent police conduct, evidence obtained through an unlawful search may be suppressed. However, applying the “good faith” exception to the rule, the Court determined that law enforcement had drawn Prado’s blood in reasonable reliance on a statute that had not yet been determined to be unlawful, and therefore there was no basis for suppression. The Court declined to address Prado’s argument to redefine the purpose of the exclusionary rule to apply not as a deterrent to police misconduct but as a remedy to constitutional violations.

Importantly, law enforcement may still obtain warrantless blood draws from incapacitated drivers under other exceptions to the Fourth Amendment’s warrant requirement, such as the exigent circumstances exception. In fact, a plurality decision from the U.S. Supreme Court in Mitchell v. Wisconsin, 139 S. Ct. 2525, 2530-31 (2019) has already recognized that exigent circumstances will “almost always” permit a blood draw without a warrant from an unconscious drunk driving suspect.

Practical Takeaways

The Wisconsin Supreme Court has now affirmed the 2020 Court of Appeals ruling that law enforcement may no longer rely on Wisconsin’s “implied consent” law to obtain warrantless blood draws from incapacitated drivers. Still, law enforcement may demand warrantless blood draws under other recognized exceptions to the Fourth Amendment’s warrant requirement. With these considerations in mind, health care organizations should consider reviewing current policies, procedures and training for health care workers involved with police requests for blood draws and the specimen collection process.

If you have questions about this recent decision or would like assistance reviewing your policies and procedures related to blood draw requests by law enforcement, please contact: