WI: Warrantless blood draw from incapacitated driver unconstitutional

Wisconsin’s statute allegedly permitting blood draws of incapacitated drivers is unconstitutional for lack of actual consent, but the good faith exception saves it today. State v. Prado, 2021 WI 64, 2021 Wisc. LEXIS 98 (June 18, 2021):

[*P41] 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 delineated 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.

[*P42] 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.

[*P43] Thus, the determination of whether there were exigent circumstances does not involve any application of the incapacitated driver provision. In other words, if the State relies on exigent circumstances to justify a search, it is not relying on the statute. See Prado, 393 Wis. 2d 526, ¶64 (“If 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.”). Searches of unconscious drivers may almost always be permissible as the State contends, but then they are almost always permissible under the exigent circumstances exception to the warrant requirement pursuant to the Mitchell plurality, not under the statute.

[*P44] In the context of warrantless blood draws, consent “deemed” by statute is not the same as actual consent, and in the case of an incapacitated driver the former is incompatible with the Fourth Amendment. Generally, in determining whether constitutionally sufficient consent is present, a court will review whether consent was given in fact by words, gestures, or conduct. State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430. This inquiry is fundamentally at odds with the concept of “deemed” consent in the case of an incapacitated driver because an unconscious person can exhibit no words, gestures, or conduct to manifest consent.