STATE OF WISCONSIN, PLAINTIFF-APPELLANT, v. DAWN M. PRADO, DEFENDANT-RESPONDENT.
Case No.: 2016AP308-CR
COURT OF APPEALS OF WISCONSIN
June 25, 2020
2020 WI App 42
Blanchard, Kloppenburg, and Graham, JJ.
Opinion Filed: June 25, 2020; Submitted on Briefs: December 6, 2019; Cir. Ct. No. 2015CF859
Appellant ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael C. Sanders, assistant attorney general, and Brad D. Schimel, attorney general.
Respondent ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the briefs of Anthony J. Jurek, of AJ Attorney, the Law Office of Anthony Jurek, Middleton.
NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
APPEAL from an order of the circuit court for Dane County: DAVID T. FLANAGAN, III, Judge. Reversed.
Before Blanchard, Kloppenburg, and Graham, JJ.
¶2 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consent” that incapacitated drivers are deemed to have given by the implied consent statute and presumed not to have withdrawn by its incapacitated driver provision satisfies the Fourth Amendment.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.
¶3 We conclude that the incapacitated driver provision is unconstitutional because
BACKGROUND
¶4 For purposes of this appeal, none of the material facts are in dispute. Two vehicles collided in Fitchburg on December 12, 2014. The police had probable cause to believe that Prado had been the driver of one of the vehicles, and she was severely injured in the crash. The driver of the other vehicle was killed.
¶5 Prado was transported to a nearby hospital. While she was intubated and unconscious in her hospital bed, a police officer went through the formality of reading the “Informing the Accused” script set forth in Wisconsin‘s implied consent statute and asking Prado to consent to a blood draw. Unsurprisingly, the unconscious Prado did not respond, and the officer directed a nurse to draw a sample of her blood. The officer did not apply for a warrant, and he later testified that he did not believe that a warrant was needed based on the incapacitated driver provision.2 An analysis of the blood sample revealed the presence of a controlled substance and a prohibited concentration of alcohol in Prado‘s blood.
¶6 Prado moved to suppress the blood test result on the grounds that the incapacitated driver provision is unconstitutional. The State countered that “under the plain language of [Wisconsin‘s] implied consent law,” Prado had “already given consent” to a blood draw by virtue of driving a car on a Wisconsin road, and that “additional consent ... is not required to authorize the taking of a sample for testing.” The State also argued that even if the incapacitated driver provision is unconstitutional, the test result should not be suppressed because the officer relied on the statute in good faith. After an evidentiary hearing, the circuit court determined that the officer directed the blood draw without the authority to do so and in the absence of consent, and it suppressed the test result.
¶7 We stayed this appeal for more than two years pending resolution of other Wisconsin appeals that raised the same question about the constitutionality of the incapacitated driver provision. As discussed in greater detail below, those cases did not resolve the issue. In the most recent of these decisions, Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), the United States Supreme Court declined to squarely address the constitutionality of the incapacitated driver provision. See, e.g., id. at 2551 (Gorsuch, J., dissenting). Even though the State had expressly conceded in the Supreme Court that there were no exigent circumstances and advanced no argument about exigency on appeal, see id., 139 S. Ct. at 2542 (Sotomayor, J., dissenting), the
DISCUSSION
¶8 We begin with a general discussion of implied consent laws and the constitutional issues they raise. We then address a conflict between two of our cases, State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, and State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867. After concluding that Wintlend has been overruled and that the incapacitated driver provision is unconstitutional, we turn to the State‘s alternative arguments that the result of Prado‘s blood test should not be suppressed based on exigent circumstances or good faith.
I. Constitutional and Statutory Landscape
¶9 When law enforcement collects a blood sample for chemical testing, it has conducted a “search” governed by the Fourth Amendment of the United States Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966). This appeal turns on whether Wisconsin‘s incapacitated driver provision is consistent with the Fourth Amendment‘s guarantee that the “right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....”
¶10 A warrantless search is unreasonable, and therefore unconstitutional, unless it falls within one of the “‘specifically established and well-delineated’ exceptions to the Fourth Amendment‘s warrant requirement.” State v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1, 646 N.W.2d 834 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also, e.g., Missouri v. McNeely, 569 U.S. 141, 148 (2013). The warrant requirement supports fundamental separation-of-powers principles—it serves as a check on the executive branch by requiring, as a general rule, that law enforcement obtain a warrant from a neutral judicial officer before invading an individual‘s privacy. See, e.g., United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 316 (1972) (the warrant requirement is “an important working part of our machinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly over-zealous executive officers’ who are a part of any system of law enforcement“) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971) (plurality opinion)).
¶11 When a defendant challenges evidence that has been obtained through a warrantless search, the State bears the burden to establish that the search was justified by a recognized exception to the warrant requirement. State v. Phillips, 2009 WI App 179, ¶7, 322 Wis. 2d 576, 778 N.W.2d 157. Voluntary consent is one of these “established and well-delineated exceptions.” See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Other recognized exceptions include exigent circumstances, see Mitchell, 139 S. Ct. at 2540, and searches incident to arrest, see Birchfield v. North Dakota, 136 S. Ct. 2160, 2182-84 (2016).
¶12 Several landmark decisions over the past decade have discussed the interplay
A. Overview of Wisconsin‘s Implied Consent Law and Its Incapacitated Driver Provision
¶13 “Drunk drivers take a grisly toll on the Nation‘s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.” Birchfield, 136 S. Ct. at 2166. To combat drunk driving, Wisconsin has joined all other states in passing what Wisconsin calls operating while intoxicated (OWI) laws, including laws that prohibit persons from driving with a prohibited alcohol concentration in their blood.
¶14 Wisconsin‘s implied consent statute provides that any person who “drives or operates a motor vehicle upon the public highways of this state” is “deemed to have given consent” to breath, blood, or urine tests when requested or required to do so by a law enforcement officer, as long as certain probable cause requirements are met.
¶15 When a suspect is capable of responding, the law enforcement officer is required to read the statutory “Informing the Accused” form to the suspect.
¶16 As we discuss in greater detail below, some defendants who submit to chemical testing under this regime later challenge its constitutionality in resulting OWI prosecutions. In these cases, the State often argues that the defendants consented to the search, and defendants often argue that their consent was coerced by the threat of license revocation. We have considered such arguments in two cases in which the suspect affirmatively agreed to a blood draw after being informed of the legal consequences of refusal. See Wintlend, 258 Wis. 2d 875; Padley, 354 Wis. 2d 545. Our Fourth Amendment analysis in Wintlend and Padley differed in critical respects that we discuss in greater detail below. For now, it suffices to say that in both cases, we determined that the suspect consented to a warrantless blood draw,
¶17 A different situation is presented when a suspect is “unconscious or otherwise not capable of withdrawing consent.”
Instead, pursuant to the incapacitated driver provision, the incapacitated suspect “is presumed not to have withdrawn consent,” and “one or more samples [of breath, blood, or urine] may be administered to the person.” See
¶18 Accordingly, on its face, the incapacitated driver provision purports to authorize blood draws of incapacitated drivers solely based on statutorily implied consent. See Disch, 129 Wis. 2d at 233-34.4 In contrast to the conscious drivers discussed above, incapacitated drivers cannot consent at the time the blood is drawn—the suspect is not capable of responding to the officers at that time, much less consenting to or withdrawing consent for a search. Instead, if consent can be said to authorize a blood draw of an incapacitated driver, it has to be consent given prior to the onset of the driver‘s incapacitation.
¶19 Thus, the incapacitated driver provision squarely presents the question of whether the consent that drivers are deemed to have given by the implied consent statute and presumed not to have withdrawn by its incapacitated driver provision satisfies an exception to the Fourth Amendment‘s warrant requirement. If it does, the incapacitated driver provision authorizes warrantless searches that are consistent with the Fourth Amendment. But if it does not, warrantless blood draws from incapacitated suspects are unconstitutional unless the circumstances surrounding the blood draws satisfy a different exception to the warrant requirement, such as exigent circumstances.
B. Landmark Fourth Amendment Implied Consent Decisions
¶20 We now provide a chronological overview of significant cases from the Wisconsin
¶21 In 1993, our supreme court determined that a warrantless blood draw of a driver who was lawfully arrested for drunk driving was constitutional based on the exigent circumstances exception to the warrant requirement. See State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). The Bohling court explained that the exigency posed by the natural dissipation of alcohol from the bloodstream obviated the need to obtain a warrant under ordinary circumstances. Id. at 547-48. For two decades following Bohling, the constitutionality of Wisconsin‘s implied consent law appeared to be a settled matter; there was little need to consider whether the implied consent statute itself authorized constitutional searches because such searches could generally be justified on the basis of exigent circumstances. See, e.g., State v. Kennedy, 2014 WI 132, ¶28, 359 Wis. 2d 454, 856 N.W.2d 834 (characterizing Bohling as creating a “per se” exigency rule that “remained the law in Wisconsin for 20 years“).
¶22 This assumption was upended in 2013, when the United States Supreme Court expressly overruled Bohling and similar precedents in other states. See McNeely, 569 U.S. at 147 n.2. The McNeely Court spoke favorably about the efficacy of implied consent laws in combating drunk driving. Id. at 161-62. It nevertheless concluded that the warrant exception for exigent circumstances always requires consideration of the “totality of the circumstances,” id. at 151, and that the dissipation of alcohol is not a “per se exigency” whenever an officer has probable cause to believe a person has been driving under the influence of alcohol, id. at 145. The McNeely Court held that claims of exigency must be subjected to a “careful case-by-case evaluation of reasonableness,” id. at 158, and that officers must obtain a warrant for a blood draw so long as doing so does not “significantly undermin[e] the efficacy of the search,” id. at 152. In McNeely‘s wake, it became necessary for law enforcement agencies in Wisconsin to develop protocols for obtaining electronic warrants from on-duty judges when drivers refused to consent to chemical testing and no other exception to the warrant requirement applied.
¶23 The blood draw in this case took place in December 2014, nearly two years after McNeely was decided. McNeely is important to our analysis because, like some other defendants in her situation, Prado argues that Wisconsin‘s incapacitated driver provision is a per se exception to the warrant requirement, and that it is unconstitutional based on McNeely.
¶24 Then, in 2016, the United States Supreme Court decided Birchfield, 136 S. Ct. 2160. The Birchfield Court addressed three consolidated cases with differing facts, but the commonality was that each case involved a driver who was arrested on suspicion of drunk driving and was asked at the scene to submit to chemical testing under a state implied consent law. Id. at 2170-72. This time, the Court‘s analysis centered on a different Fourth Amendment warrant exception—search incident to arrest. The Court concluded that a breath test may be administered as a permissible search incident to a lawful arrest for intoxicated driving, but a blood test may not. Id. at 2185. The Court distinguished between breath and blood tests on the grounds that blood tests are significantly more intrusive than breath tests,
¶25 As the State acknowledges, Birchfield is important to our analysis because it addresses consent. More specifically, the blood draw in one of its consolidated cases, Beylund, had been justified by the state supreme court on the ground that Beylund had “voluntarily consented” under the state‘s implied consent law. Beylund v. Levi, 2015 ND 18, ¶15, 859 N.W.2d 403, vacated and remanded sub nom. Birchfield, 136 S. Ct. 2160. As we explain below, Prado argues that the Court‘s discussion of constitutional limitations on state implied consent laws shows that Wisconsin‘s incapacitated driver provision is unconstitutional.
¶26 Around the same time that Birchfield was decided, this court started seeing appeals that squarely presented the question at issue in this case: whether the constitutionality of Wisconsin‘s incapacitated driver provision can be upheld on the grounds that implied consent, by itself, satisfies the Fourth Amendment. On three occasions, we certified this question to the Wisconsin Supreme Court.5 The resulting decisions have been fractured, and our supreme court has not issued any majority opinion resolving this question. In response to our first certification, Howes, the court issued a split decision, with a plurality of justices declining to address the constitutionality of the incapacitated driver provision but stating that the blood draw was justified by exigent circumstances. State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812.6 In response to our second certification, Mitchell, our supreme court did address the certified question,
but again issued a split decision,7 and the court‘s various writings were later vacated by the United States Supreme Court. State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, vacated and remanded, 139 S. Ct. 2525 (2019). The Wisconsin Supreme Court declined to accept our third and final certification in State v. Hawley, No. 2015AP1113-CR, certification filed (WI App Nov. 21, 2018), certification declined (Sept. 3, 2019).
¶27 When the United States Supreme Court granted certiorari in Mitchell, the natural expectation was that the court would resolve the constitutionality of the incapacitated driver provision. After all, Mitchell involved an unconscious driver, the State expressly conceded that there was no exigency, and the sole argument advanced by the State was that the blood draw was authorized by the driver‘s implied consent. Mitchell, 139 S. Ct. at 2545-46 (Sotomayor, J., dissenting). However, like our supreme court in Howes, the United States Supreme Court declined to squarely address the constitutionality of the incapacitated driver provision. Id. Justice Alito‘s plurality opinion addressed implied consent only briefly, when it remarked that “[o]ur decisions [regarding implied consent laws]
have not rested on the idea that these laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize.” Id. at 2533.
¶28 Rather than deciding the case on the basis of statutorily implied consent, the Court remanded for determination of whether the blood draw that took place was justified by exigent circumstances. Id. at 2537-39 (plurality opinion). Although a majority of five justices agreed with this bottom line, their reasoning differed. Four justices determined that exigent circumstances “almost always” permit a warrantless blood draw from an unconscious driver, and articulated a new test that shifted the burden to the defendant to prove that exigent circumstances were not present.8 A fifth justice stated that McNeely‘s rule against per se exceptions should be abandoned, and that the dissipation of alcohol always presents an exigent circumstance. Id. at 2539 (Thomas, J., dissenting). Whatever the meaning of the fractured Mitchell decision, it is important to our analysis here because, as mentioned, the State now argues that we should overlook its failure to raise exigent circumstances below and determine that the blood draw in this case was justified on the basis of exigency.
II. The Constitutionality of the Incapacitated Driver Provision
¶29 With this background in mind, we turn to the parties’ arguments about the blood draw that occurred in this case. The parties agree that the incapacitated driver provision purports to authorize warrantless blood draws from incapacitated drivers without any need to show that exigent circumstances are present. Where the State and Prado differ is whether it is constitutional for a statute to do so.
¶30 Prado contends that the incapacitated driver provision is unconstitutional because implied consent does not satisfy the
not satisfy any exception to the warrant requirement. Prado relies heavily on McNeely and Birchfield, and we take her to be arguing that after these cases, searches justified exclusively on the basis of implied consent are unconstitutional.
¶31 The State counters that the fact that an incapacitated driver is unable to express “actual consent” at the time of the search is inconsequential, since the driver has already given implied consent. That is, according to the State, warrantless implied consent searches are constitutional because drivers give “voluntary implied consent” to a chemical test “by choosing to drive on a Wisconsin highway.”
¶32 It is not clear which of two arguments the State intends to make in this regard. The State may be arguing that statutorily implied consent satisfies what we refer to here as the “traditional” warrant exception for consent, discussed in numerous cases including Schneckloth, 412 U.S. 218, and State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 786 N.W.2d 430. To satisfy the traditional exception, the State must show that the consent was “voluntary“—that is, not the “product of duress or
coercion“—and voluntariness is “determined from the totality of the circumstances.” Schneckloth, 412 U.S. at 227; Artic, 327 Wis. 2d 392, ¶33. Alternatively, the State may be arguing that statutorily implied
¶33 But before we can address any of the constitutional arguments advanced by both parties, we must pause to address a threshold issue—whether we can even decide if the incapacitated driver provision is constitutional in light of a conflict between our prior decisions. See Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997) (the court of appeals cannot overrule its own precedent).
A. The Conflict Between Wintlend and Padley
¶34 One reason that we certified similar cases in the past is due to a conflict between two of our opinions, Wintlend and Padley. These cases provide conflicting interpretations of the implied consent statute, and they appear to point in different directions about the incapacitated driver provision‘s constitutionality. According to Wintlend, drivers give implied consent at the time they apply for a Wisconsin license, 258 Wis. 2d 875, ¶13, and this implied consent itself authorizes warrantless searches that
satisfy the
¶35 This apparent conflict between Wintlend and Padley is important to an analysis of the issues in the present case. If we were bound to follow Wintlend, then we would be compelled to conclude that the incapacitated driver provision passes
¶36 When our own precedent conflicts, we have been instructed to certify the issue to the Wisconsin Supreme Court. See Marks v. Houston Cas. Co., 2016 WI 53, ¶80, 369 Wis. 2d 547, 881 N.W.2d 309. But as discussed above, we certified this issue three times, and the Wisconsin Supreme Court did not resolve the conflict between Wintlend and Padley or decide the constitutionality of the incapacitated driver provision. Meanwhile, in cases such as this one, the State continues to assert that no warrant was needed as a result of the consent implied by statute, and defendants continue to assert that implied consent does not satisfy the
¶37 The court of appeals cannot overrule its own precedent. Cook, 208 Wis. 2d at 189-90. Here, however, we agree with Prado that Wintlend was overruled by the United States Supreme Court in Birchfield. Although we may not overrule our own decisions, we may recognize that one of our decisions
¶38 Wintlend involved a conscious driver who was arrested on probable cause for driving while intoxicated. Wintlend, 258 Wis. 2d 875, ¶2. The arresting officer informed Wintlend that under Wisconsin law, he was deemed to have consented to chemical testing and would incur civil penalties if he withdrew consent. Id. Wintlend agreed to a blood test, but later sought to suppress the result on grounds that his consent had been coerced by the threat of license revocation. Id. To support his argument, Wintlend relied on cases including Schneckloth that addressed the traditional warrant exception for voluntary consent. See Brief and Appendix of Defendant-Appellant at 36-39, Wintlend, 258 Wis. 2d 875 (No. 02-0965).
¶39 We accepted the premise that the implied consent statute requires drivers to “surrender”
¶40 We ultimately concluded that “the statute‘s coerciveness is not unreasonable” “at whatever point the motorist is coerced into making a decision, be it at the time the person applies for and obtains a license, or when the person begins operating the vehicle on each particular occasion, or after arrest.” Id., ¶18. We initially determined that “the time of consent” was when “a license is obtained,”12 and that no coercion occurs at that time because Wintlend could choose to travel by means other than driving. Id.,
¶13. But we also concluded that even if Wintlend‘s consent was given at the scene in response to the officer‘s warning, that “coercive event” was not unreasonable. Id., ¶17. We reasoned that “the bodily intrusion” involved with a blood test is “minimal” because blood draws are “safe, relatively painless and commonplace ... compared with other, much more intrusive state actions.” Id. We
¶41 In summary, we read Wintlend to set forth the following three principles: (1) a blood test is a “minimal” intrusion that can be coerced if there is a sufficiently compelling State purpose justifying the intrusion; (2) drivers give “implied consent” to chemical testing at the time they apply for a license—long before the search requested by an officer is contemplated—and this implied consent satisfies the
¶42 We now turn to whether these three principles can survive the United States Supreme Court‘s decision in Birchfield. One of the cases that was consolidated in Birchfield, the Beylund matter, is important here because its facts are similar to those in Wintlend. See Beylund v. Levi, 2015 ND 18, ¶1, 859 N.W.2d 403, vacated and remanded sub nom. Birchfield, 136 S. Ct. 2160. In Beylund, the defendant was arrested for driving while intoxicated, and the arresting officer read him an implied consent advisory, which warned that it was a crime to refuse to take a blood test under North Dakota law. Id., ¶¶3, 15. Beylund agreed to the test at the scene, but later argued that the search violated the
¶43 The United States Supreme Court vacated the Beylund opinion. Birchfield, 136 S. Ct. at 2187. As it explained, the state court‘s assertion that Beylund gave voluntary consent had been “based on the erroneous assumption that the State could permissibly compel” blood tests. Id. The Court remanded for consideration of whether Beylund had voluntarily consented to the blood test based on the totality of the circumstances: “Because voluntariness of consent to a search must be ‘determined from the totality of all the circumstances,’ we leave it to the state court on remand to reevaluate Beylund‘s consent given the partial inaccuracy of the officer‘s advisory.” Id. at 2187 (quoting Schneckloth, 412 U.S. at 227). That is, the Court instructed North Dakota to apply the well-known test governing the traditional consent exception to the warrant requirement, which forbids coercion and requires that consent be given “voluntarily” based on analysis of “the totality of the circumstances.” See also State v. Phillips, 218 Wis. 2d 180, 197-98, 577 N.W.2d 794 (1998) (describing the traditional totality of the circumstances test for consent).
¶44 For reasons we now explain, Wintlend‘s three principles cannot survive the United States Supreme Court‘s analysis in Birchfield.
¶45 First, Wintlend described blood draws as “minimal” bodily intrusions, but
¶46 Second, Wintlend concluded that drivers give implied consent to future blood draws at the time they apply for licenses,14 thereby satisfying the
¶47 Third, after Birchfield, it is clear that Wintlend applied the wrong test to determine whether the “consent” contemplated by an implied consent statute satisfies the
¶48 Accordingly, Birchfield instructs that the test for whether a driver‘s consent to a blood draw satisfies the
¶49 For these reasons, we conclude that Birchfield overruled Wintlend “in such
B. The Parties’ Arguments About Implied Consent
¶50 We now turn to the parties’ arguments about whether the circuit court properly suppressed the result of Prado‘s blood test. An order granting or denying a suppression motion generally presents “a mixed question of law and fact to which we apply a two-step standard of review.” State v. Tomaszewski, 2010 WI App 51, ¶5, 324 Wis. 2d 433, 782 N.W.2d 725. Here, however, since the material facts are undisputed, all that is left is a question of law: whether the incapacitated driver provision is constitutional. See State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. Statutes are presumed to be constitutional, and “if any doubt exists about a statute‘s constitutionality, we must resolve that doubt in favor of constitutionality.” Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849.
¶51 As we have explained, a warrantless search is unconstitutional unless it satisfies one of the “specifically established and well-delineated” exceptions to the warrant requirement. Williams, 255 Wis. 2d 1, ¶18. The State asserts that drivers give “voluntary implied consent” to a chemical test “by choosing to drive on a Wisconsin highway,” but as mentioned above, it is not clear whether the State means to argue that statutorily implied consent satisfies the traditional warrant exception for voluntary consent, or is itself an independent exception to the warrant requirement. We address these arguments in turn.
1. The Traditional Warrant Exception for Consent
¶52 To the extent the State is arguing that searches authorized by
¶53 As discussed above, the traditional warrant exception requires that consent be “voluntary” based upon an evaluation of the “totality of all the circumstances.” Schneckloth, 412 U.S. at 227. It is the State‘s burden to prove that the defendant gave voluntary consent by “clear and convincing evidence.” State v. Blackman, 2017 WI 77, ¶54, 377 Wis. 2d 339, 361, 898 N.W.2d 774. When considering the totality of the circumstances, courts evaluate “the circumstances surrounding the consent and the characteristics of the defendant; no single factor controls.” Artic, 327 Wis. 2d 392, ¶33.15
¶54 The State asserts that the consent implied by
¶55 More is required, as demonstrated by Birchfield‘s remand instructions in the Beylund matter. Birchfield, 136 S. Ct. at 2186. As discussed at length above, these remand instructions show that courts must consider any relevant circumstances that surround the blood draw itself when determining whether a driver voluntarily consented, and that drivers do not give consent that satisfies the traditional warrant exception simply by the voluntary act of driving on a Wisconsin road. See supra ¶¶43, 47.
¶56 The United States Supreme Court‘s discussion in Mitchell reinforces our conclusion that implied consent does not satisfy the traditional warrant exception for voluntary consent. As discussed above, the Mitchell Court was squarely presented with the same question that is at issue in this case—whether implied consent satisfies the
2. Implied Consent as an Independent Warrant Exception
¶57 Alternatively, the State may be arguing that the incapacitated driver provision is constitutional because there is, or perhaps should be, a separate warrant exception for statutorily implied consent.17
When a driver gives consent, he or she is conscious, and is free to choose whether to drive. .... [Implied consent] is in effect a deal: in exchange for driving in Wisconsin, a person impliedly consents to take a chemical test if arrested for an OWI-related offense. It is a deal that is favorable to both sides. The person receives the significant privilege to drive on Wisconsin highways, and gives very little as his or her consent to give a sample is triggered only by the remote possibility that he or she is arrested for an OWI-related offense. On the other hand, the State gets a lot in the ability to more easily obtain samples for chemical testing when a subject operates while under the influence on its highways ....
We interpret the State‘s comments either as an argument that courts have already recognized statutorily implied consent as an exception to the warrant requirement, or alternatively, as an argument that we should do so for the first time here for policy reasons.
¶58 The State points to a long line of Wisconsin cases that have discussed the implied consent statute with approval. Generally, these cases track the language of
¶59 If the State means to suggest that these cases decided that statutorily implied consent satisfies the
¶60 Likewise, as the remand instructions in Birchfield make clear, the United States Supreme Court has not recognized an independent warrant exception for statutorily implied consent. As we have discussed, if statutorily implied consent were its own warrant exception, then the United States Supreme Court presumably would have simply affirmed the Beylund matter on that basis, as the state had requested. Instead, the Court directed the North Dakota Supreme Court to apply the well-known “totality of the circumstances” test. Birchfield, 136 S. Ct. at 2187.21
¶61 To be sure, Beylund was not incapacitated, and the Birchfield Court acknowledged that incapacitated drivers pose particular challenges for officers attempting to gather evidence. See id. at 2185 (recognizing that breath tests, which can be administered as a lawful search incident to arrest, cannot be administered to unconscious drivers). Additionally, unlike conscious drivers, incapacitated drivers are incapable of supplying voluntary consent to blood tests at the time of the search. Yet, despite the challenges posed by incapacitated drivers, the Court did not suggest that it is reasonable under the
¶62 Finally, to the extent the State means to suggest that we should recognize a new warrant exception for statutorily implied consent, we decline to do so.
C. Conclusion About the Constitutionality of the Incapacitated Driver Provision
¶63 For these reasons, we conclude that the consent that incapacitated drivers are deemed to have given by Wisconsin‘s implied consent statute and presumed not to have withdrawn by its incapacitated driver provision does not satisfy any exception to the
¶64 Thus, because the incapacitated driver provision purports to authorize warrantless searches that do not fit within any exception to the warrant requirement, the searches it authorizes will always violate the
III. The State‘s Alternative Arguments
¶65 In the alternative, the State argues that the blood test result should not be suppressed even if the incapacitated driver provision is unconstitutional—either because there were exigent circumstances or because the officer relied on the statute in good faith. We address these arguments in turn.
A. Exigent Circumstances
¶66 The State acknowledges that it did not advance any argument about exigent circumstances in the circuit court or in its original appellate briefs. Then, after Mitchell was decided, the parties submitted supplemental briefs, which raise a series of new issues. The parties dispute, among other things, whether the Mitchell plurality announced a new exigent circumstances rule, and if so, whether the State should be excused from its failure to argue exigent circumstances in light of the new rule Mitchell announced. The parties also appear to dispute whether Prado would be able to demonstrate a lack of exigent circumstances under the test set forth by the Mitchell plurality. We need not resolve these issues, since our decision about the good faith exception to the exclusionary rule is dispositive. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties when one issue is dispositive.“).
B. Good Faith
¶67 Ordinarily, evidence obtained through an unconstitutional search should be excluded at trial. Blackman, 377 Wis. 2d 339, ¶68. “The exclusionary
¶68 Prado‘s crash and the warrantless blood draw that followed took place in December 2014, almost two years after McNeely was issued, but before Birchfield and Mitchell. The State argues that exclusion is inappropriate here because, as of December 2014, a reasonable officer would not have doubted the constitutionality of the incapacitated driver provision.
¶69 We pause to note that the exclusionary rule and its good faith exception attempt to balance critical but competing principles. On the one hand, there must be meaningful incentives in place to ensure that officials operate within constitutional bounds and respect the “interest that all individuals share in having their constitutional rights fully protected.” Arizona v. Gant, 556 U.S. 332, 349 (2009). On the other hand, excluding otherwise admissible evidence can hinder enforcement of the law and interfere with “the criminal justice system‘s truth-finding function ....” United States v. Leon, 468 U.S. 897, 907 (1984). In balancing these principles, courts have generally applied the good faith exception where exclusion would not serve the “prime purpose” of the exclusionary rule, which is “to deter future unlawful police conduct and thereby effectuate the guarantee of the
¶70 There are good reasons for courts to ensure that good faith remains the exception, not the rule. Application of the good faith exception allows constitutional violations to go unremedied, even though “[i]t is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Schneckloth, 412 U.S. 218, 229 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)). Additionally, application of the exception could hamper development of
¶71 Despite these concerns, we are persuaded that in this case, the State has met its burden to show that the officer who directed the warrantless blood draw acted in objective good-faith reliance on the incapacitated driver provision. At the time that Prado‘s blood was drawn, the incapacitated driver provision had been on the books for decades, and its constitutionality had not been challenged in any published appellate decision.26 Wintlend was the law in Wisconsin and had not yet been overruled by Birchfield. The officer testified that he was familiar with McNeely, that he had been trained to use the Dane County telephone warrant system developed in McNeely‘s wake, and that he had used the system approximately a dozen times, all in situations involving conscious drivers who refused to consent to chemical testing. However, the officer also testified that he had never attempted to obtain a search warrant for a blood draw from a person who was unconscious, and that based on the incapacitated driver provision, it did not occur to him that he might have to do so. As we understand it, the implication of this testimony is that the officer did not read McNeely to prohibit officers from relying on the implied consent of incapacitated drivers, which, as discussed above, the statute presumes has not been withdrawn.
¶72 Prado‘s argument to the contrary relies on the notion that McNeely rendered the incapacitated driver provision “clearly unconstitutional.” Krull, 480 U.S. at 349. According to Prado, McNeely unequivocally prohibited all categorical exceptions to the warrant requirement, including categorical exceptions based on implied consent. We are not persuaded. McNeely clarified the law on the warrant exception for exigent circumstances, but it did not clearly address whether or how the “consent” implied by implied consent law can satisfy a warrant exception. Although McNeely contains some language that could be read more broadly to suggest that any categorical exception to the warrant requirement was prohibited,27 when this language is read in context, it is not clear that the Court meant to extend its “case-by-case” rule beyond the exigent circumstances exception.28 As our supreme court has explained,
¶73 Accordingly, we conclude that the State has met its burden to show that the officer who ordered the warrantless blood draw acted in objective good-faith reliance on the incapacitated driver provision.
CONCLUSION
¶74 For these reasons, we conclude that the incapacitated driver provision of Wisconsin‘s implied consent statute is unconstitutional, but that Prado‘s blood test result should not be suppressed because the officer relied on that provision in good faith. Accordingly, we reverse.
By the Court.—Order reversed.
Notes
Many other state courts have recently addressed similar issues in cases involving conscious drivers and have also concluded that statutorily implied consent does not by itself satisfy the