Search Warrants Now Required for Blood Draws of Unconscious Drivers

August 6, 2020

On June 25, 2020, the Wisconsin Court of Appeals decided State v. Prado, which significantly changed Wisconsin’s implied consent law.  For decades, it has been the law in Wisconsin 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, unless an exception to the warrant requirement is present, it will 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.

In 2014, Dawn Prado was involved in a serious car crash, and while she was unconscious, law enforcement obtained a sample of her blood 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. 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  Moreover, the statute contained a provision stating that incapacitated drivers are presumed not to have withdrawn their consent at any time.

Prado’s blood test showed the presence of a controlled substance and a prohibited alcohol concentration.  Prado moved to suppress the blood test results on the grounds that the incapacitated driver provision of the implied consent statute was unconstitutional.

The Court of Appeals agreed with Prado. The implied consent that incapacitated drivers are deemed to have given, and presumed not to have withdrawn, does not satisfy the exceptions to the Fourth Amendment of the United States Constitution or to the companion Wisconsin constitutional provisions: consent, exigent circumstances, or searches incident to arrest.

As a result, the Court of Appeals concluded that the incapacitated driver provision of the implied consent statute is unconstitutional.  Going forward, unless some exception to the warrant requirement is present, such as exigent circumstances, law enforcement will need a warrant to draw blood from an unconscious driver.

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.