Search Warrants Now Required for Blood Draws of Unconscious Drivers

July 13, 2020

On June 25, 2020, the Wisconsin Court of Appeals decided State v. Prado, which significantly changed Wisconsin’s implied consent law.  For decades, Wisconsin courts have held that when an unconscious driver is arrested for drunk driving, law enforcement officers could take a blood sample from the driver without a warrant.  Under Prado, if a law enforcement officer obtains a blood draw from an unconscious driver without a warrant, it may be an infringement of the driver’s rights under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, and the test results may be suppressed. This is a significant development in OWI law.

Wisconsin’s implied consent statute, Wis. Stat. § 343.305(2), requires licensed drivers in Wisconsin to consent to have their blood drawn and tested whenever they drive on a state road and certain probable cause requirements are met.  Moreover, the statute contains a provision stating that incapacitated drivers are presumed not to have withdrawn their consent at any time. Following the Court of Appeal’s decision in Prado, the incapacitated driver provision is unconstitutional and law enforcement may need a warrant to conduct a blood draw for an unconscious driver.

In 2014, Dawn Prado was involved in a fatal car crash, and while she was unconscious, law enforcement requested a sample of her blood be drawn for chemical testing. The officer never obtained a search warrant for the blood draw and instead relied on the incapacitated driver provision of Wisconsin’s implied consent statute. Prado’s blood draw showed the presence of a controlled substance and a prohibited alcohol concentration in her blood.  Prado moved to suppress the blood test results in the trial court on the grounds that the incapacitated driver provision of the implied consent statute was unconstitutional.

The Court of Appeals held that warrantless blood draws taken from incapacitated drivers were unconstitutional.  The Court concluded the implied consent that incapacitated drivers are deemed to have given, and presumed not to have withdrawn, does not satisfy any exception to the Fourth Amendment of the United States Constitution’s or the companion Wisconsin constitutional provisions, and their Exceptions to the warrant requirement include consent, exigent circumstances, and searches incident to arrest. The Court of Appeals examined recent United States Supreme Court cases analyzing the exceptions to the warrant requirements, and whether the incapacitated driver statute fits into any of the exceptions. As a result, the Court of Appeals concluded that warrantless blood draws taken from an incapacitated driver are unconstitutional.

In this case, the Court of Appeals did not suppress the blood test results because the officer acted in good-faith reliance on the prior rule. However, moving forward, law enforcement may need to obtain a search warrant in order to take a blood draw of an unconscious driver. If they do not, such a blood draw violates the driver’s Fourth Amendment rights, and the blood test results may be suppressed.

The importance of this case cannot be overstated as it will have a significant impact on OWI (operating while intoxicated) arrests and prosecutions of unconscious drivers in Wisconsin.