Wisconsin high court strikes down incapacitated driver law

MADISON, Wis. (AP) — A unanimous Wisconsin Supreme Court struck down a state law Friday that allowed for taking blood samples from suspected drunken drivers who are incapacitated, ruling that it is unconstitutional.

The court upheld a state appeals court ruling from last year saying that the law violates the Fourth Amendment protecting against unconstitutional search and seizure. The law in question says that incapacitated drivers — those who are unconscious due to drugs or alcohol — are presumed to have agreed to provide blood samples if there is probable cause they were impaired.

Numerous court rulings, both in Wisconsin and across the country, have addressed the issue of taking blood samples from drivers without consent. But until this case the courts had never directly addressed whether the incapacitated driver provision of Wisconsin’s law violates the Fourth Amendment.

The state Supreme Court, in its ruling written by Justice Ann Walsh Bradley, said the state law is clearly unconstitutional.

Wisconsin Department of Justice spokeswoman Gillian Drummond said the ruling’s impact would be limited because police are able to obtain blood draws without consent under the “exigent-circumstances doctrine,” which the U.S. Supreme Court upheld in a case out of Wisconsin in 2019.

“Law enforcement officers in Wisconsin have therefore moved away from relying on the portion of the implied consent statute that has now been declared unconstitutional,” Drummond said.

The case involved a 2014 car crash in a suburb of Madison between two vehicles that killed Janet M. Grady, who died at the scene. Fitchburg police took blood samples from a survivor from the other vehicle, Dawn Prado, because the officer believed a warrant was not needed to take the sample.

Prado, who was intubated and unconscious at the hospital, did not respond when an officer asked her for consent to do a blood draw. The officer testified that he did not think he needed a warrant since she was incapacitated and ordered a nurse to draw the blood.

The Dane County circuit court sided with Prado and suppressed the blood draw test result and dismissed the case. A state appeals court said the officer acted in good faith even though taking such samples is unconstitutional, ruled that the blood test results should not have been suppressed but said the state law about incapacitated drivers is unconstitutional.

The appeals court threw out the lower court’s ruling dismissing Prado’s case.

The state Supreme Court on Friday agreed with that ruling, saying the officer acted in good faith based on an unconstitutional law. Justice Pat Roggensack and Chief Justice Annette Ziegler filed a separate concurring opinion, saying they agreed with the end result of the ruling but not the reasoning.

Anthony Jurek, the attorney representing Prado, said the ruling was a “mixed bag” since it found the law unconstitutional but allowed the case against Prado to proceed. He called the striking down of the law a “big and long overdue win for the people of Wisconsin.”

Jurek said he was considering appealing the ruling to the U.S. Supreme Court, but had to discuss that option first with Prado.

A criminal complaint said Prado had a blood alcohol concentration of 0.081%, just over the legal limit in Wisconsin, when a vehicle she was driving crossed the center line on a highway in Fitchburg and struck Grady’s car. Prado, 54, was also severely injured and another person was in the vehicle with her at the time of the crash.

Because of three prior drunken driving convictions, Prado was allowed a 0.02% maximum blood alcohol concentration.

Jurek said Prado is contesting the allegation that she was driving the vehicle.