State v. Dawn M. Prado, 960 N.W.2d 869

Background

On Dec. 12, 2014 a two-vehicle crash in Fitchburg left one person dead; Dawn Prado was found unconscious and later transported to a hospital. An off-duty firefighter smelled intoxicants on her breath.
Officer Parker read the statutory "Informing the Accused" form to the unconscious Prado, then ordered a warrantless blood draw; he testified he did not seek a warrant because Wis. Stat. § 343.305(3)(b) (the "incapacitated driver" provision) treats incapacitated drivers as having "deemed" consent.
Prado’s blood tested positive for alcohol and cocaine metabolites; she was charged with multiple offenses and moved to suppress the blood-test results as a Fourth Amendment violation.
The circuit court granted suppression; the court of appeals found the incapacitated-driver provision unconstitutional but applied the good-faith exception and upheld admission of the blood results. Both parties sought review.
The Wisconsin Supreme Court held the incapacitated-driver provision unconstitutional (statutory "deemed" consent cannot substitute for actual consent), but applied the good-faith exception because officers reasonably relied on a long-standing statute that had not yet been judicially invalidated; evidence therefore was not suppressed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of the incapacitated-driver provision (Wis. Stat. § 343.305(3)(b))	Prado: "Deemed" statutory consent is not actual, unequivocal, or specific consent required by the Fourth Amendment; statute facially invalid.	State: Mitchell and exigent-circumstances doctrine permit warrantless draws of unconscious drivers; statute is constitutional because such draws are "almost always" justified.	Provision unconstitutional beyond a reasonable doubt; statute authorizes warrantless searches without a recognized warrant exception.
Suppression / Good-faith exception to the exclusionary rule	Prado: Evidence should be excluded because the search violated the Fourth Amendment; courts should provide remedy by suppression.	State: Officer reasonably and objectively relied on an existing statute; suppression would not deter and Krull/Leon support admission.	Good-faith exception applies; blood-test evidence admissible because officer reasonably relied on unsettled-but-existing statute.
Effect of Mitchell (U.S. Supreme Court) on statute	Prado: Mitchell does not validate statutory "deemed" consent.	State: Mitchell’s plurality suggests unconscious-driver blood draws are almost always exigent, so statute is workable.	Mitchell addresses exigent-circumstances, not consent; it does not constitutionalize the "deemed" consent statute.
Officer reasonableness / duty to obtain a warrant post-McNeely	Prado: After McNeely, warrants were available and officers should have sought one; good faith in relying on statute is improper.	State: No court had declared the statute unconstitutional; officer reliance was objectively reasonable.	Officer’s reliance on the statute was objectively reasonable; suppression would not further exclusionary rule purposes.

Key Cases Cited

McNeely v. Missouri, 569 U.S. 141 (2013) (warrantless blood tests are not per se reasonable; exigency must be assessed case-by-case)
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (breath tests may be permissible incident to arrest; blood tests implicate greater privacy and cannot be treated the same)
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019) (plurality: when unconscious driver with probable cause is likely to be taken for medical care where blood will be drawn, exigency "almost always" permits warrantless blood draw)
Illinois v. Krull, 480 U.S. 340 (1987) (good-faith exception applies where officers reasonably rely on a statute later found unconstitutional)
United States v. Leon, 468 U.S. 897 (1984) (established the good-faith exception to the exclusionary rule for objectively reasonable reliance on a warrant)
Herring v. United States, 555 U.S. 135 (2009) (exclusionary rule meant to deter deliberate/reckless or systemic police misconduct)
State v. Bohling, 173 Wis. 2d 529 (1993) (prior Wisconsin rule treating alcohol dissipation as per se exigency)
State v. Howes, 373 Wis. 2d 468 (2017) (Wisconsin high-court fragmentation on incapacitated-driver provision; no majority constitutional holding)