Stаte of Wisconsin, Plaintiff-Appellant-Petitioner v. Dawn M. Prado, Defendant-Respondent-Cross Petitioner
No. 2016AP308-CR
Supreme Court of Wisconsin
June 18, 2021
2021 WI 64
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 393 Wis. 2d 526, 947 N.W.2d 182
PDC No: 2020 WI App 42 - Published
OPINION FILED: June 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 18, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: David T. Flanagan, III
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which REBECCA GRASSL BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a concurring opinion, in which ZIEGLER, C.J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs filed by Anthony Jurek and AJ Attorney, the Law Office of Anthony Jurek, Middleton. There was an oral argument by Anthony Jurek.
For the plaintiff-appellant, there was a brief filed by Michael C. Sanders, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders.
An amicus curiae brief was filed by Douglas Hoffer, assistant city attorney, Stephen C. Nick, city attorney and City of Eau Claire, Eau Claire.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of thе official reports.
No. 2016AP308-CR
(L.C. No. 2015CF859)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Dawn M. Prado,
Defendant-Respondent-Cross Petitioner.
FILED
JUN 18, 2021
Sheila T. Reiff
Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which REBECCA GRASSL BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a concurring opinion, in which ZIEGLER, C.J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY,
§ 343.305 (2017-18),1 is unconstitutional.2 However, the court of appeals additionally determined that under the facts of this case, the application of the good faith exception to the exclusionary rule allows for the admission of the blood test evidence Prado sought to suppress.
¶2 The State asks us to review the court of appeals’ determination that the incapacitated driver provision is unconstitutional. Prado requests review оf the court of appeals’ application of the good faith exception and its conclusion that the evidence need not be suppressed despite the constitutional violation.
¶3 We conclude that the incapacitated driver provision is unconstitutional beyond a reasonable doubt. The provision‘s “deemed” consent authorizes warrantless searches that do not fulfill any recognized exception to the warrant requirement and thus the provision violates the Fourth Amendment‘s proscription of unreasonable searches.
¶4 However, we further conclude that under the facts of this case, law enforcement drew Prado‘s blood in reasonable reliance on a statute that had not been determined to be
unconstitutional. Consequently, thе good faith exception to the
¶5 Accordingly, we affirm the decision of the court of appeals.
I
¶6 On the evening of December 12, 2014, law enforcement was called to a serious two-vehicle crash in Fitchburg. An initial investigation revealed that a black minivan had crossed the center line and struck a red Pontiac. Upon arrival, police found one person deceased; one person, later identified as Prado, ejected from a vehicle; and a third person, later identified as Deshonn Banks, standing near one of the involved vehicles.
¶7 Fitchburg police officer Andre Poehnelt made contact with Banks, who stated that he had been sleеping at the time of the crash and was not the driver. He further indicated that “Dawn” was driving.
¶8 Dawn Prado had been thrown from her vehicle and was found lying in a ditch. An off-duty firefighter who came upon the scene rendered aid to her. He rolled Prado over and upon doing so smelled the odor of intoxicants on her breath.
¶9 Ultimately, Prado was transported to a nearby hospital. Officer Johnathan Parker was sent to the hospital to make contact with Prado. Upon Officer Parker‘s arrival at the hospital, he found Prado intubated and unconscious.
¶10 Despite Prado‘s unconscious state, Officer Parker read to Prado the statutory “Informing the Accused” form.3 Being unconscious, Prado did not respond. Officer Parker then instructed a nurse to conduct a draw of Prado‘s blood. He did not apply for a wаrrant and he testified that it did not occur to him to do so because the incapacitated driver provision applied. A subsequent test of Prado‘s blood revealed an alcohol concentration of 0.081 percent, over four times Prado‘s legal limit, which due to her prior convictions was set at 0.02 percent.4
¶11 Prado was ultimately charged with nine separate counts arising from the crash.5 She moved to suppress the blood test results, arguing that the incapacitated driver provision sets forth an unconstitutional per se exception to the warrant requirement in cases where a driver is unconscious.
¶12 Agreeing with Prado, the circuit court granted the motion to suppress. It determined that the blood draw was taken without Prado‘s consent and without the authority of a search warrant in violation of the Fourth Amendment. Further, it declined to apply the good faith exception, concluding that Missouri v. McNeely, 569 U.S. 141 (2013), clearly required a warrant and “the
¶13 The State appealed, and the court of appeals reversed the circuit court‘s decision. State v. Prado, 2020 WI App 42, 393 Wis. 2d 526, 947 N.W.2d 182. Although its ultimate mandate was to reverse, the court of appeals agreed with the circuit court regarding the unconstitutionality of the incapacitated driver provision. Specifically, the court of appeals concluded that “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 Fourth Amendment, unless the searches are justified by a separate warrant exception.” Id., ¶64.
¶14 Further, the court of appeals reasoned that even if a separate exception to the warrant requirement applied in a given case, “that does not save the constitutionality of the incapacitated driver provision.” Id. In the court of appeals’ view, this is because “[i]f a court ultimately determines that such a search is constitutional in any given case, it will be on the basis of an exception such as exigent circumstances, not on
the basis of anything set forth in the implied consent statute itself.” Id.
¶15 Where the court of appeals diverged from the circuit court was in its application of the goоd faith exception. Contrary to the circuit court, the court of appeals determined 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.” Id., ¶73. Accordingly, it concluded that the blood test results need not be suppressed. Id., ¶74.
¶16 Both the State and Prado petitioned for review of the court of appeals’ decision. The State asked this court to review the court of appeals’ conclusion that the incapacitated driver provision is unconstitutional, while Prado sought review of the court of appeals’ determination that the good faith exception applies and precludes suppression of the blood test evidence. This court granted both petitions.
II
¶17 This case requires us to first determine the constitutionality of the incapacitated driver provision. The constitutionality of a statute presents a question of law we decide independently of the determinations rendered by the circuit court and court of appeals. State v. Weidner, 2000 WI 52, ¶7, 235 Wis. 2d 306, 611 N.W.2d 684. A party challenging a statute as unconstitutional must demonstrate that it is unconstitutional beyond a reasonable doubt. State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63.
¶18 We are also asked to determine whether the good faith exception to the exclusionary rule applies in this case. The application of the good faith exception is likewise a question of law we review independently of the decisions of the circuit court and court of appeals. State v. Scull, 2015 WI 22, ¶17, 361 Wis. 2d 288, 862 N.W.2d 562.
III
¶19 We begin by setting forth the statutоry provisions on which our analysis centers. Next, we recount the history of the issue now before us in previous litigation before the court of appeals, this court, and the United States Supreme Court. With this background in hand, we then address the constitutionality of the incapacitated
A
¶20 In an effort to curb the devastating effects of drunk driving on Wisconsin roads, this state (like all others) has passed laws prohibiting operating while intoxicated and operating with a prohibited alcohol concentration. See
designed to facilitate the gathering of evidence to remove drunk drivers from the road. State v. Zielke, 137 Wis. 2d 39, 41, 403 N.W.2d 427 (1987).
¶21 The implied consent statute,
Any person who . . . drives or operatеs a motor vehicle upon the public highways of this state . . . is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination [thereof], when requested to do so by a law enforcement officer under sub. (3)(a) or (am) or when required to do so under sub. (3)(ar) or (b).
¶22 When a law enforcement officer requests a specimen pursuant to the implied consent law, the officer is required to read to the suspect the “Informing the Accused” form.7 Wis. Stat.
§ 343.305(4). The form is “designed to inform drivers of the rights and penalties applicable to them.” State v. Piddington, 2001 WI 24, ¶18, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting Cnty. of Ozaukee v. Quelle, 198 Wis. 2d 269, 279, 542 N.W.2d 196 (Ct. App. 1995)).
¶23 It sets forth the consequences of refusing the test, which include revocation
test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency prоvides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.
[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. Framed in the terms of “implied consent,” сhoosing the “yes” option affirms the driver‘s implied consent and constitutes actual consent for the blood draw. Choosing the “no” option acts to withdraw the driver‘s implied consent and establishes that the driver does not give actual consent. Withdrawing consent by choosing the “no” option is an unlawful action, in that it is penalized by “refusal violation” sanctions, even though it is a choice the driver can make.
State v. Padley, 2014 WI App 65, ¶39, 354 Wis. 2d 545, 849 N.W.2d 867.
¶24 When a suspect is unconscious or incapacitated, that person obviously cannot respond to the choice presented by the “Informing the Accused” form. Accordingly, officers are not required to read the form to an unconscious person because such an exercise would be “useless.” State v. Disch, 129 Wis. 2d 225, 233-34, 385 N.W.2d 140 (1986).
¶25 Addressing this scenario,
¶26 Thus, as the court of appeals in this case set forth, “on its face, the incapacitated driver provision purports to authorize blood draws of incapacitated drivers solely based on
statutorily implied consent.” Prado, 393 Wis. 2d 526, ¶18. The instant case is not the first time we have wrestled with this attribute of the incapacitated driver provision, and it is this history to which we turn next.
B
¶27 The issue we address today has taken a long and winding road to get here. It begins in 1993 with this court‘s decision in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). In Bohling, the court dеtermined that the dissipation of alcohol in a person‘s bloodstream is a sufficient exigency so as to justify a warrantless blood draw from a person arrested for a drunk driving offense under ordinary circumstances. Id. at 547-48. This per se exigency rule was the law in this state for 20 years. State v. Kennedy, 2014 WI 132, ¶28, 359 Wis. 2d 454, 856 N.W.2d 834.
¶28 In 2013, the United States Supreme Court fundamentally “changed the landscape of warrantless blood draws in Wisconsin” and around the country with its decision in McNeely, 569 U.S. 141. State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d 421, 857 N.W.2d 120. The McNeely Court spurned the notion that the dissipation of alcohol in the bloodstream constitutes a per se exigency and instead determined
¶29 The United States Supreme Court followed McNeely with its decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160 (2016). There, the Court considered whether a law making
“it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired” violates the Fourth Amendment. Id. at 2166-67. In its analysis, the Court centered on the search incident to arrest exception to the warrant requirement. Drawing a distinction between a breath test and a blood test, the Court concluded that “the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.” Id. at 2184.
¶30 The Court, however, indicated that a blood test is a wholly separate matter. Having previously recognized that a blood test is an “intrusion[] beyond the body‘s surface” that implicates “interests in human dignity and privacy[,]” Schmerber v. California, 384 U.S. 757, 769-70 (1966), the Birchfield Court explained that the privacy interests that attend a blood test are greater than those involved in a breath test.8 Birchfield, 136 S. Ct. at 2178. As such, it concluded that although the administration of a breath test is permissible as a search incident
to arrest for drunk driving, the administration of a blood test is not. Id. at 2185.
¶31 Of particular note, the Birchfield court acknowledged that “prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Id. at 2185. Yet, the Court further concluded that criminal penalties may not be imposed for a refusal. Id. In reaching this determination, it emphasized: “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” Id.
¶32 The change in the United States Supreme Court‘s approach to warrantless breath and blood tests on drunk driving suspects as manifested in McNeely and Birchfield gave rise to several challenges in Wisconsin that reached this court. First, in State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812, the court of appeals certified to this court the very question we now address: the constitutionality of the incapacitated driver provision. The Howes court ultimately upheld the search at issue in that case in a split decision. Nevertheless, the court issued
no majority opinion declaring any law with regard to the constitutionality of the incapacitated driver provision.9
unpublished certification (Wis. Ct. App. Nov. 21, 2018), certification denied 2019 WI 98, 389 Wis. 2d 33, 935 N.W.2d 680.
¶34 Meanwhilе, the United States Supreme Court granted certiorari in Mitchell. As the court of appeals in the instant case stated, when it did so “the natural expectation was that the court would resolve the constitutionality of the incapacitated driver provision.” Prado, 393 Wis. 2d 526, ¶27. Indeed, the case squarely presented the issue and the State had expressly conceded that exigent circumstances were not present.
¶35 However, the resulting opinion did not resolve the question and, like this court‘s opinions on the subject, did not produce a majority opinion. Instead of addressing the constitutionality of the incapacitated driver provision, a four-justice plurality opinion, authored by Justice Alito, determined that exigent circumstances “almost always” permit a blood draw without a warrant from an unconscious drunk driving suspect. Mitchell v. Wisconsin, 588 U.S. __, 139 S. Ct. 2525, 2531 (2019). Specifically, the plurality set forth:
When police have probable cause to believe a person has committed a drunk-driving offense and the driver‘s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver‘s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not hаve a chance
to attempt to make that showing, a remand for that purpose is necessary.
Id. at 2539.11 Ultimately, the case was remanded to the circuit court for further proceedings.
¶36 With this necessary background in hand, we turn now to address the issue raised in several of the above-cited cases and the instant case, namely the constitutionality of the incapacitated driver provision.
¶37 A party who challenges the constitutionality of a statute bears a significant burden. We presume that a statute is constitutional and the challenger must demonstrate that the statute is unconstitutional beyond a reasonable doubt. Wood, 323 Wis. 2d 321, ¶15.
¶38 Prado asserts that the incapacitated driver provision violates the Fourth Amendment.12 This Amendment to the United States Constitution protects against unreasonable sеarches and
seizures.13 State v. Dalton, 2018 WI 85, ¶38, 383 Wis. 2d 147, 914 N.W.2d 120. A warrantless search is presumptively unreasonable unless an exception to the warrant requirement applies. Id.
¶39 Prado argues that consent implied by statute does not constitute actual consent sufficient for purposes of the Fourth Amendment. Because the incapacitated driver provision purports to create a statutory exception to the warrant requirement where actual consent has not been obtained, Prado asserts that it violates the Fourth Amendment‘s proscription of unreasonable searches.
¶40 Conversely, the State contends that the court of appeals should have applied the determination of the United States Supreme Court‘s plurality opinion in Mitchell, i.e., that a warrantless search of an unconscious drunk driving suspect is almost always permissible under the exigent circumstances exception to the warrant requirement and that it is up to the defendant to demonstrate that the “unusual case” exception applies. It further argues that the incapacitated driver provision is constitutional
because, pursuant to Mitchell, the blood draws it authorizes are almost always justified.
¶41 We agree with Prado that the incapacitated driver provision cannot be constitutionally enforced under any circumstances and is unconstitutional beyond a reasonable doubt. In arriving at this conclusion, we begin with the premise that consent and exigent circumstances are two separate and distinct exceptions to the Fourth Amendment‘s warrant requirement. Indeed, this court has previously set forth that “[t]wo of the carefully dеlineated exceptions to the warrant requirement are consent searches and searches based on exigent circumstances.” State v. Krajewski, 2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d 385.
¶42 The State‘s essential argument in this case boils down to an assertion that the incapacitated driver provision is constitutional because exigent circumstances may have been present. This argument conflates the consent and exigent circumstances exceptions to the warrant requirement. The incapacitated driver provision of the implied consent statute is not focused on exigent circumstances. As the moniker “implied consent” connotes, the statute addresses consent, which is an exception to the warrant requirement separate and apart from exigent circumstances.
¶43 Thus, the determinatiоn of whether there were exigent circumstances
State v. Prado
2016AP308-CR.pdr
¶73 PATIENCE DRAKE ROGGENSACK, J. (concurring).
¶74 I also write to emphasize that there is nothing in the majority opinion that precludes law enforcement from relying on the legal standard set out in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), to obtain a blood sample frоm an unconscious driver for whom law enforcement has probable cause to believe drove while intoxicated when “it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes.” Id. at 2531.
¶75 Therefore, while the majority opinion reaches a bottom line result with which I agree, I do not join the opinion. Accordingly, I concur in mandate only.
I. BACKGROUND2
¶76
¶77 Prado was charged with: homicide by intoxicated use of a motor vehicle, while having a prior OWI-related conviction; homicide by use of a motor vehicle, while having a PAC; homicide by use of a motor vehicle with a detectable amount of a restricted controlled substance; causing injury by operation of a motor vehicle while intoxicated as a second or subsequent offense; causing injury by use of a motor vehicle with deteсtable amount of a restricted controlled substance as a second or subsequent
offense; operating a motor vehicle while under the influence of an intoxicant as a 4th offense and three other related counts.
¶79 The State appealed. The court of appeals reversed, in reliance on the good faith exception to the exclusionаry rule. State v. Prado, 2020 WI App 42, ¶66, 393 Wis. 2d 526, 947 N.W.2d 182. However, the court of appeals chose not to apply the legal standard set out by the Supreme Court in Mitchell. This choice is interesting because the District IV panel that decided Prado had two out of three judges who were the same judges as decided State v. Richards, 2020 WI App 48, ¶12, 393 Wis. 2d 772, 948 N.W.2d 359, where Mitchell‘s legal standard for blood draws from an unconscious driver was employed.
II. DISCUSSION
A. Standard of Review
¶80 We review a grant or denial of a suppression motion grounded in the Fourth Amendment of the United States Constitution and Article, I, Section 11 of the Wisconsin Constitution as a question of constitutional fact. State v. Howes, 2017 WI 18, ¶17, 373 Wis. 2d 468, 893 N.W.2d 812. To answer that question, we employ a two-step inquiry. Id.
¶81 First, we review the circuit court‘s findings of historical facts, which we will affirm unless they are clearly erroneous. Id., ¶18. Second, we independently determine whether the historical facts establish circumstances sufficient to justify a warrantless search. Id.
B. General Principles
¶82 A blood draw is a search of the person within the meaning of the Fourth Amendment. State v. Tullberg, 2014 WI 134, ¶31, 359 Wis. 2d 421, 857 N.W.2d 120. Both “[t]he Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Id., ¶29 (internal quotations and citation omitted).
¶83 However, the Fourth Amendment and Article I, Section 11 do not proscribe all searches, only those that are “unreasonable.” State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer‘s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.‘” Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)).
¶84 The Fourth Amendment does not mention securing a warrant prior to a search. However, in part to protect against unreasonable searches, we have held that “[a] warrantless search is presumptively unreasonable.” Tullberg, 359 Wis. 2d 421, ¶30. Nevertheless, there are well-established exceptions to the warrant
requirement. State v. Brar, 2017 WI 73, ¶16, 376 Wis. 2d 685, 898 N.W.2d 499. Exigent circumstances, which include a risk that evidence will be destroyed, have created exceptions to the warrant requirement. Howes, 373 Wis. 2d 468, ¶24.
¶85 When exigent circumstances are present in an OWI case, there are four additional considerations that bear on the reasonableness of the search.
Id., ¶25 (quoting State v. Kennedy, 2014 WI 132, ¶17, 359 Wis. 2d 454, 856 N.W.2d 834). “[C]lear indication” is supported by the same facts that yield probable cause to arrest. Howes, 373 Wis. 2d 468, ¶25.
¶86 The required legal standard for addressing the unconscious driver is set out in Mitchell. As explained by the plurality, when there is probable cause that an unconscious driver is under the influence of intoxicants and likely would be treated at a medical facility for which blood would be drawn for diagnostic purposes, obtaining a blood sample does not require a warrant. Mitchell, 139 S. Ct. at 2531.
¶87 Justice Clarence Thomas would have gone farther than the plurality and concluded that the Court should apply the per se rule he proposed in Missouri v. McNeely, 569 U.S. 141 (2013). “Under that rule, the natural metabolization of alcohol in the
blood stream ‘creates an exigency once police have probable cause to believe the driver is drunk,’ regardless of whether the driver is conscious.” Mitchell, 139 S. Ct. at 2539 (Thomas, J., concurring).
¶88 I note that based on Marks v. United States, 430 U.S. 188, 193 (1977), the plurality opinion written by Justice Alito in Mitchell has the narrowest grounds supporting the judgment of the Court, and therefore, it sets the legal standard in regard to obtaining blood samples from unconscious drivers. In Richards, 393 Wis. 2d 772, the court of appeals applied the Mitchell standard in a published opinion.
¶89 There, a sheriff‘s deputy found Donnie Gene Richards behind the wheel of a motor vehicle at the scene of an accident. Id., ¶1. He was unconscious and severely injured. Id. The deputy determined there was probable cause to believe Richards had been operating the vehicle while intoxicated and that his injuries were so serious that he would soon be transported by helicopter to a hospital approximately fifty miles away. Id. Therefore, the deputy ordered that blood be drawn from Richards before he wаs placed in the helicopter. Id.
¶90 Richards was charged with OWI, 12th offense. Id., ¶2. He moved to suppress the results of the blood test4 because his blood was drawn without a warrant. Id. The circuit court denied suppression, finding there were exigent circumstances, which the court concluded obviated the need for a warrant. Id. On appeal,
the court of appeals affirmed, “[a]pplying the factors set forth in Mitchell.” Id.
C. Prado‘s Blood Draw
¶91 Prado fitted within the category of exigent circumstance cases for which no warrant was needed to obtain a sample of her blood to test for alcohol and other intoxicants. Law enforcement had probable cause to believe that she drove while intoxicated; she was unconscious; blood was likely to be drawn for medical procedures to assist in her care and obtaining a blood sample to test for intoxicants was compelling
¶92 Further, my evaluation of the four additional considerations that we have reviewed when exigent circumstances are said to exist confirms that obtaining a sample of Prado‘s blood without a warrant was reasonable. First, the parties stipulated that there was probable cause to believe that Prado was driving while intoxicated at the time of the accident. Second, there was probable cause to believe that the blood sample would yield evidence of intoxicants due to the stipulation and the smell of
intoxicants about Prado. Third, Prado was unconscious, so there was no opportunity for an evidentiary breath test.6 Fourth, her blood sample was taken at a hospital, by hospital staff who had been securing blood for Prado‘s medical requirements. Obtaining a blood sample to test for intoxicants was compelling based on metabolic evidence destruction. Accordingly, the blood draw was reasonable and the results of the blood test should not be suppressed at Prado‘s trial.
D. Impaired Driver Concerns
¶93 In the case before us, Prado had three OWI convictions prior to the accident that took the life of the driver of the vehicle she struck while intoxicated. Drunk drivers causing death and disarray on Wisconsin‘s roads are not new phenomenons. Recently, the Milwaukee Journal Sentinel had a front page article about a young man who had served five tours of duty in Vietnam where he was a helicopter pilot. He received more than 100 medals because of his bravery and dedication to our country. He survived the war, but shortly after returning home to Wisconsin, he was killed by a drunk driver. Somehow Wisconsin has to get this problem under control.
III. CONCLUSION
¶94 Although I agree with the bottom line of the majority opinion, i.e., affirming the court of appeals decision that
permitted use of the results of Dawn Prado‘s blood test in her trial, I do not agree with the majority opinion because its reasoning does not follow the direction of the United States Supreme Court in regard to the evaluation of unconscious drivers.
¶95 I also write to emphasize that there is nothing in the majority opinion that precludes law enforcement from relying on the legal stаndard set out in Mitchell to obtain a blood sample from an unconscious driver for whom law enforcement has probable cause to believe drove while intoxicated when “it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes.” Id. at 2531.
¶96 Therefore, while the majority opinion reaches a bottom line result with which I agree, I do not join the opinion. Accordingly, I concur in mandate only.
¶97 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER joins this concurrence.
Notes
You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating рrivilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The
[A] blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.
Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2178 (2016).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.