2021 WI 64

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP308-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Appellant-Petitioner,

 v.

Dawn M. Prado,

 Defendant-Respondent-Cross Petitioner.

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.
2

An amicus curiae brief was filed by Douglas Hoffer, assistant 

city attorney, Stephen C. Nick, city attorney and City of Eau 

Claire, Eau Claire. 
2021 WI 64

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the 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, J. Both the State of Wisconsin and 

Dawn Prado seek review of a published decision of the court of 

appeals, which determined that Wisconsin's incapacitated driver 

provision contained within the implied consent statute, Wis. Stat. 
No. 2016AP308-CR 

2

§ 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 of 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 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated. As the court of 

appeals did, we refer to Wis. Stat. § 343.305 as the "implied 

consent" statute and the several subsections that pertain to 

incapacitated drivers as the "incapacitated driver provision."

2 State v. Prado, 2020 WI App 42, 393 Wis. 2d 526, 947 

N.W.2d 182 (reversing order of the circuit court for Dane County, 

David T. Flanagan, III, Judge).
No. 2016AP308-CR 

3

unconstitutional. Consequently, the good faith exception to the 

exclusionary rule applies and the evidence resulting from the draw 

of Prado's blood need not be suppressed.

¶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 sleeping 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.
No. 2016AP308-CR 

4

¶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 warrant 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. 

 

3 See Wis. Stat. § 343.305(4).

4 See Wis. Stat. § 340.01(46m)(c).

5 Initially, Prado was charged with: (1) homicide by 

intoxicated use of a vehicle while having a prior intoxicantrelated conviction contrary to Wis. Stat. § 940.09(1)(a) and 

(1c)(b); (2) homicide by use of a vehicle with a prohibited alcohol 

concentration while having a prior intoxicant-related conviction 

contrary to § 940.09(1)(b) and (1c)(b); (3) operating while 

intoxicated causing injury as a second and subsequent offense 

contrary to Wis. Stat. §§ 346.65(3p) and 346.63(2)(a)1.; (4) 

operating with a prohibited alcohol concentration causing injury 

as a second and subsequent offense contrary to §§ 346.65(3p) and 

346.63(2)(a)2.; (5) operating while intoxicated as a fourth 

offense contrary to §§ 346.63(1)(a) and 346.65(2)(am)4.; and (6) 

operating with a prohibited alcohol concentration as a fourth 

offense contrary to §§ 346.63(1)(b) and 346.65(2)(am)4. Three 

counts related to driving while having a detectable amount of a 

restricted controlled substance in her blood were later added.
No. 2016AP308-CR 

5

¶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 

claim of good faith cannot carry the day when a warrant was just 

a phone call away and had been so available for well over a year."

¶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 
No. 2016AP308-CR 

6

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 good 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.
No. 2016AP308-CR 

7

¶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 statutory 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 driver provision.6 Finally, we turn to the 

application of the good faith exception to the exclusionary rule.

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 Wis. Stat. § 346.63(1). 

Further, Wisconsin has passed an implied consent law, which is 

 

6 Prado contends that the State lacks standing to petition 

for review of the court of appeals' determination that the 

incapacitated driver provision is unconstitutional because the 

court of appeals' decision was not adverse to the State. We 

disagree. A decision that is "partially adverse to the State" is 

sufficient to allow the State to appeal. State v. Bentdahl, 2013 

WI 106, ¶21, 351 Wis. 2d 739, 840 N.W.2d 704. Although the court 

of appeals ultimately decided in the State's favor, it also 

determined that the incapacitated driver provision is 

unconstitutional——a determination adverse to the State. 
No. 2016AP308-CR 

8

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, Wis. Stat. § 343.305(2), 

provides: 

Any person who . . . drives or operates 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. 

 

7 The "Informing the Accused" form provides:

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 privilege 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 
No. 2016AP308-CR 

9

§ 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 of operating privileges, and the 

consequences of consenting to the test, i.e., that the results can 

be used against the suspect in court. Wis. Stat. § 343.305(4). 

Essentially, the implied consent statute gives those who are 

capable of responding a choice: submit to the test and risk that 

the results are presented in court, or refuse the test and face 

license revocation and other civil penalties. See § 343.305(9). 

The court of appeals has described the operation of the implied 

consent statute as follows:

 

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 provides 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.

Wis. Stat. § 343.305(4).
No. 2016AP308-CR 

10

[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," choosing 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, Wis. Stat. § 343.305(3)(b) 

provides: "A person who is unconscious or otherwise not capable 

of withdrawing consent is presumed not to have withdrawn consent 

under this subsection . . . ." As a result, if a law enforcement 

officer has probable cause to believe that an incapacitated person 

has violated the OWI statutes, the statute indicates that the 

officer may take blood from the person for testing without a search 

warrant. § 343.305(3)(b).

¶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 
No. 2016AP308-CR 

11

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 determined 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 that "[w]hether a warrantless 

blood test of a drunk-driving suspect is reasonable must be 

determined case by case based on the totality of the 

circumstances." McNeely, 569 U.S. at 156.

¶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 
No. 2016AP308-CR 

12

"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 

 

8 A blood test can provide a much greater amount of 

information than a simple breath test: 

[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).
No. 2016AP308-CR 

13

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. 2016AP308-CR 

14

no majority opinion declaring any law with regard to the 

constitutionality of the incapacitated driver provision.9 

¶33 Subsequent to this court's decision in Howes, the court 

of appeals again certified to this court a case raising the 

constitutionality of the incapacitated driver provision, State v. 

Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151. Again, 

this court did not issue a majority opinion declaring any law with 

regard to the provision's constitutionality. As in Howes, the 

search at issue in Mitchell was upheld, but no rationale garnered 

a majority vote.10 After Mitchell, the court of appeals again 

attempted to certify the issue to this court, but we ultimately 

denied the certification. State v. Hawley, No. 2015AP1113-CR, 

 

9 Then-Chief Justice Roggensack's lead opinion, joined by 

Justice Rebecca Grassl Bradley and Justice Kelly, determined that 

the search was permissible due to exigent circumstances. State v. 

Howes, 2017 WI 18, ¶3, 373 Wis. 2d 468, 893 N.W.2d 812 (lead 

opinion). Justice Gableman's concurrence, joined by Justice 

Ziegler, concluded that the incapacitated driver provision is not 

facially unconstitutional. Id., ¶57 (Gableman, J., concurring). 

Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley 

and joined in part by Justice Kelly, determining that the 

incapacitated driver provision is unconstitutional. Id., ¶93 

(Abrahamson, J., dissenting).

10 Then-Chief Justice Roggensack's lead opinion, joined by 

Justice Ziegler and Justice Gableman, determined that the 

incapacitated driver provision passes constitutional muster. 

State v. Mitchell, 2018 WI 84, ¶3, 383 Wis. 2d 192, 914 N.W.2d 151 

(lead opinion). Justice Kelly, joined by Justice Rebecca Grassl 

Bradley, disagreed with the lead opinion's constitutional analysis 

but upheld the search on other grounds. Id., ¶67 (Kelly, J., 

concurring). Justice Ann Walsh Bradley, joined by Justice 

Abrahamson, dissented, concluding that the incapacitated driver 

provision is unconstitutional. Id., ¶89 (Ann Walsh Bradley, J., 

dissenting).
No. 2016AP308-CR 

15

unpublished certification (Wis. Ct. App. Nov. 21, 2018), 

certification denied 2019 WI 98, 389 Wis. 2d 33, 935 N.W.2d 680.

¶34 Meanwhile, 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 fourjustice 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 have a chance 
No. 2016AP308-CR 

16

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.

C

¶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 searches and 

 

11 Justice Thomas concurred in the judgment, but did not join 

the plurality's reasoning. Instead, he concluded that exigent 

circumstances will always be present in the case of an unconscious 

driver due to the dissipation of alcohol in the bloodstream and 

that the Court should do an about face from its holding in McNeely. 

Mitchell v. Wisconsin, 588 U.S. __, 139 S. Ct. 2525, 2539 (Thomas, 

J., concurring).

12 Although Prado does not specify with particularity whether 

her challenge to the incapacitated driver provision is a facial 

challenge or an as-applied challenge, like the court of appeals we 

understand it to be a facial challenge. See Prado, 393 

Wis. 2d 526, ¶30 n.9. A party challenging a law as 

unconstitutional on its face must demonstrate that the law cannot 

be constitutionally enforced under any circumstances. State v. 

Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765 (citing 

Michels v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486).
No. 2016AP308-CR 

17

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 

 

13 The Fourth Amendment to the United States Constitution sets 

forth:

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.

U.S. Const. amend. IV.
No. 2016AP308-CR 

18

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 

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.

¶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 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 
No. 2016AP308-CR 

19

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.

¶44 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.

¶45 Under the incapacitated driver provision, we ask 

"whether the driver drove his car" and nothing more. State v. 

Brar, 2017 WI 73, ¶¶64-65, 376 Wis. 2d 685, 898 N.W.2d 499 (Kelly, 

J., concurring). The statute thus reduces a multifaceted 

constitutional inquiry to a single question in a manner 

inconsistent with this court's precedent regarding what is 

constitutionally required to establish consent.
No. 2016AP308-CR 

20

¶46 The constitution requires actual consent, not "deemed" 

consent.14 Indeed, consent for purposes of a Fourth Amendment 

search must be "unequivocal and specific." State v. Reed, 2018 WI 

109, ¶8, 384 Wis. 2d 469, 920 N.W.2d 56. Consent that is "deemed" 

by the legislature through the incapacitated driver provision is 

neither of these things. It cannot be unequivocal because an 

incapacitated person can evince no words, gestures, or conduct to 

demonstrate such an intent, and it is generalized, not specific.

¶47 Further, a person has a constitutional right to refuse 

a search absent a warrant or an applicable exception to the warrant 

requirement. See Dalton, 383 Wis. 2d 147, ¶61. The incapacitated 

driver provision does not even afford a driver the opportunity to 

exercise the right to refuse such a search. Under the statute, 

the constitutional right to refuse a warrantless search is 

transformed into simply a matter of legislative grace. Such a 

transformation is incompatible with the Fourth Amendment.

¶48 United States Supreme Court precedent further supports 

the determination that actual consent and "deemed" consent are 

separate and distinct concepts that must be treated differently 

under the Fourth Amendment. The concept of a statutory per se 

 

14 Courts in several other states have reached similar 

conclusions regarding statutes allowing warrantless blood draws on 

unconscious drivers. See Bailey v. State, 790 S.E.2d 98, 104-05 

(Ga. Ct. App. 2016), overruled on other grounds by Welbon v. State, 

799 S.E.2d 793 (Ga. 2017); Commonwealth v. Dennis, 135 N.E.3d 1070, 

1078-79 (Mass. App. Ct. 2019); State v. Vargas, 404 P.3d 416, 422 

(N.M. 2017); State v. Romano, 800 S.E.2d 644, 652 (N.C. 2017); 

Stewart v. State, 442 P.3d 158, 162 (Okla. Crim. App. 2019); State 

v. Ruiz, 581 S.W.3d 782, 786-87 (Tex. Crim. App. 2019). 
No. 2016AP308-CR 

21

exception to the warrant requirement violates both McNeely and 

Birchfield. To explain, in McNeely, the Court concluded that 

"[w]hether a warrantless blood test of a drunk-driving suspect is 

reasonable must be determined case by case based on the totality 

of the circumstances." 569 U.S. at 156. A statutory per se 

exception is antithetical to the case by case determination McNeely

mandates.15

¶49 As to Birchfield, the fundamental holding of that Court 

was that a blood test cannot be administered as a search incident 

to arrest for drunk driving. Birchfield, 136 S. Ct. at 2185. Yet 

what the State seeks through the incapacitated driver provision is 

just what Birchfield disallowed——a per se exception essentially 

allowing a blood test on an unconscious driver as a search incident 

to an arrest for drunk driving. Further, in Birchfield the United 

States Supreme Court addressed the situation we encounter here. 

Specifically, it set forth:

It is true that a blood test, unlike a breath test, may 

be administered to a person who is unconscious (perhaps 

as a result of a crash) or who is unable to do what is 

needed to take a breath test due to profound intoxication 

 

15 We recognize that McNeely was an exigent circumstances case 

and not a consent case. However, subsequent case law has hinted 

at a broad application of the case by case determinations McNeely

requires. In Aviles v. Texas, 571 U.S. 1119 (2014), the Court 

vacated a judgment upholding a warrantless blood draw based solely 

on consent derived through Texas's implied consent statute and 

remanded to the Texas court of appeals for further consideration 

in light of McNeely. On remand, the Texas appellate court 

concluded that the Texas implied consent statute "flies in the 

face of McNeely's repeated mandate that courts must consider the 

totality of the circumstances of each case." Aviles v. State, 443 

S.W.3d 291, 294 (Tex. Ct. App. 2014).
No. 2016AP308-CR 

22

or injuries. But we have no reason to believe that such 

situations are common in drunk-driving arrests, and when 

they arise, the police may apply for a warrant if need 

be.

Id. at 2184-85 (emphasis added). Such a warrant application is 

thus necessary unless another recognized exception to the warrant 

requirement applies. 

¶50 The Birchfield Court additionally opined: "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. at 2185. A warrantless search on an unconscious person that 

is justified only by statutorily "deemed" consent and no recognized 

exception to the warrant requirement lies beyond that limit.

¶51 Contrary to the State's argument, the United States 

Supreme Court's decision in Mitchell does not change this 

conclusion. The plurality's determination in Mitchell said 

nothing about the constitutionality of the incapacitated driver 

provision, but simply said that exigent circumstances will almost 

always be present in the situation that the statute addresses. 

Mitchell, 139 S. Ct. at 2531. Because Mitchell addressed exigent 

circumstances and not consent, reliance on Mitchell does not equate 

to reliance on the statute and that case thus does not affect our 

determination. As the court of appeals put it: 

[E]ven if a separate warrant exception may often 

apply . . . that does not save the constitutionality of 

the incapacitated driver provision. If a court 

ultimately determines that such a search is 

constitutional in a 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. 
No. 2016AP308-CR 

23

Prado, 393 Wis. 2d 526, ¶64.

¶52 We recognize that our determination in the instant case 

is inconsistent with the court of appeals' conclusion in State v. 

Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745. In 

Wintlend, the court of appeals concluded that drivers give implied 

consent to the type of search at issue here when they apply for a 

Wisconsin driver's license, and that such consent is consistent 

with the Fourth Amendment. Id., ¶¶13, 17. In other words, the 

Wintlend court determined that actual consent provided at the scene 

of an accident or arrest is irrelevant because the driver already 

gave consent through the act of applying for a license. See Prado, 

393 Wis. 2d 526, ¶35.

¶53 This result cannot stand given our conclusion in the 

present case. To the extent that Wintlend rested on a premise 

that a driver consents to a search through the simple act of 

applying for a driver's license, it must be overruled. Such a 

conclusion does not take into account the constitutionally 

significant difference between "deemed" and actual consent we 

explain above.

¶54 Accordingly, 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. 
No. 2016AP308-CR 

24

IV

¶55 The determination that the incapacitated driver 

provision is unconstitutional does not end our inquiry. We turn 

next to the applicability of the good faith exception to the 

exclusionary rule. The application of the good faith exception is 

examined on a case by case basis. See United States v. Leon, 468 

U.S. 897, 918 (1984). 

¶56 Evidence obtained through an unlawful search is 

ordinarily excluded at trial. State v. Blackman, 2017 WI 77, ¶68, 

377 Wis. 2d 339, 898 N.W.2d 774. However, the exclusionary rule 

bar is not absolute, instead requiring the weighing of pertinent 

interests. Kennedy, 359 Wis. 2d 454, ¶36 (citing State v. Eason, 

2001 WI 98, ¶43, 245 Wis. 2d 206, 629 N.W.2d 625). As such, courts 

have crafted some exceptions to the rule where exclusion of the 

evidence would not serve the exclusionary rule's purpose.

¶57 "[T]he exclusionary rule serves to deter deliberate, 

reckless, or grossly negligent conduct, or in some circumstances 

recurring or systemic negligence." Herring v. United States, 555 

U.S. 135, 144 (2009). "To trigger the exclusionary rule, police 

conduct must be sufficiently deliberate that exclusion can 

meaningfully deter it, and sufficiently culpable that such 

deterrence is worth the price paid by the justice system." Id. 

¶58 While the exclusionary rule serves to protect the 

constitutional rights of defendants, as a necessary consequence it 

also "interfere[s] with the criminal justice system's truthfinding function." Leon, 468 U.S. at 907. "Particularly when law 

enforcement officers have acted in objective good faith or their 
No. 2016AP308-CR 

25

transgressions have been minor, the magnitude of the benefit 

conferred on . . . guilty defendants offends basic concepts of the 

criminal justice system." Id. at 907-08.

¶59 With these competing principles in mind, the United 

States Supreme Court and this court have recognized a good faith 

exception providing limited circumstances in which evidence 

obtained in violation of the Fourth Amendment is not excluded at 

trial. See Blackman, 377 Wis. 2d 339, ¶70. First, "[t]he good 

faith exception has generally been applied when a law enforcement 

officer has reasonably and objectively relied on settled law 

(whether statute or binding judicial precedent) that was 

subsequently overruled." Id. (citation omitted). Second, the 

exception is applicable when law enforcement relies on "a warrant 

that was subsequently invalidated or that was based on erroneous 

information resulting from isolated police negligence attenuated 

from the arrest." Id. (citations omitted).

¶60 The court of appeals in the instant case applied the 

good faith exception and determined that the evidence obtained as 

a result of the unconstitutional blood draw need not be suppressed. 

It reasoned that "the State has met its burden to show that the 

officer who directed the warrantless blood draw acted in objective 

good-faith reliance on the incapacitated driver provision." 

Prado, 393 Wis. 2d 526, ¶71. "At the time that Prado's blood was 

drawn, the incapacitated driver provision had been on the books 

for decades, and its constitutionality had not been challenged in 

any published appellate decision." Id.
No. 2016AP308-CR 

26

¶61 Prado contends that the court of appeals' application of 

the good faith exception was in error. She asserts that the law 

surrounding the incapacitated driver provision was not wellsettled so as to justify law enforcement's reliance on it. 

Additionally, Prado argues that use of the exclusionary rule should 

be expanded beyond mere deterrence of police misconduct, and should 

be applied as a remedy for constitutional violations.

¶62 We disagree with Prado's argument on this point. First, 

accepting Prado's argument would run afoul of the United States 

Supreme Court's decision in Illinois v. Krull, 480 U.S. 340 (1987). 

In Krull, the Court considered whether the good faith exception

"should be recognized when officers act in objectively reasonable 

reliance upon a statute authorizing warrantless administrative 

searches, but where the statute is ultimately found to violate the 

Fourth Amendment." Id. at 342.

¶63 Answering this question in the affirmative, the Court 

stated: "The application of the exclusionary rule to suppress 

evidence obtained by an officer acting in objectively reasonable 

reliance on a statute would have as little deterrent effect on the 

officer's actions as would the exclusion of evidence when an 

officer acts in objectively reasonable reliance on a warrant." 

Id. at 349. The Court further explained: 

Unless a statute is clearly unconstitutional, an officer 

cannot be expected to question the judgment of the 

legislature that passed the law. If the statute is 

subsequently declared unconstitutional, excluding 

evidence obtained pursuant to it prior to such a judicial 

declaration will not deter future Fourth Amendment 
No. 2016AP308-CR 

27

violations by an officer who has simply fulfilled his 

responsibility to enforce the statute as written.

Id. at 349-50. This court has echoed such a maxim, referencing a 

statute as "settled law" for purposes of the exclusionary rule. 

Blackman, 377 Wis. 2d 339, ¶70. 

¶64 These principles apply here. We can discern no reason 

for applying the good faith exception based on objectively 

reasonable reliance on a warrant or court decision, but not on a 

statute. At the time of the search at issue, the incapacitated 

driver provision remained in effect and had not been declared 

unconstitutional. Officer Parker testified that it never occurred 

to him to attempt to procure a search warrant due to the existence 

of the statute.16

¶65 Even accepting arguendo Prado's contention that court 

decisions had muddied the status of the incapacitated driver 

provision, what is clear is that no court had explicitly declared 

it to be unconstitutional until now. It would be unreasonable to

expect a police officer to synthesize the relevant case law to 

divine that the statute was unconstitutional when no court had 

clearly said so.

¶66 We also are compelled to decline Prado's invitation to 

redefine the breadth of the exclusionary rule. Prado seeks to 

apply the exclusionary rule not as a deterrent to police 

 

16 Although our good faith inquiry is objective, when 

examining whether a reasonably well trained officer would have 

known that a search was illegal in light of all the circumstances, 

we recognize that those circumstances "frequently include a 

particular officer's knowledge and experience." Herring v. United 

States, 555 U.S. 135, 145 (2009).
No. 2016AP308-CR 

28

misconduct, but as a remedy in and of itself to constitutional 

violations.

¶67 Adherence to the principle of stare decisis dictates 

that we reject Prado's argument. Stare decisis, the principle 

that courts must stand by things decided, is fundamental to the 

rule of law. Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶66, 389 

Wis. 2d 669, 937 N.W.2d 37 (citation omitted). Any departure from 

stare decisis requires "special justification." Schultz v. 

Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266.

¶68 Just three years ago, a majority of this court in State 

v. Kerr, 2018 WI 87, ¶6, 383 Wis. 2d 306, 913 N.W.2d 787, 

circumscribed the breadth of the exclusionary rule, emphasizing 

that police misconduct is the essence of the inquiry. Prado has 

not provided a compelling "special justification" that would cause 

us to revisit this recent determination. 

¶69 We therefore 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. 

Accordingly, the good faith exception to the exclusionary rule 

applies and the evidence resulting from the draw of Prado's blood 

need not be suppressed.

V

¶70 In sum, 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 
No. 2016AP308-CR 

29

and thus the provision violates the Fourth Amendment's 

proscription of unreasonable searches. 

¶71 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, the good faith exception to the 

exclusionary rule applies and the evidence resulting from the draw 

of Prado's blood need not be suppressed.

¶72 Accordingly, we affirm the decision of the court of 

appeals.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2016AP308-CR.pdr

1

¶73 PATIENCE DRAKE ROGGENSACK, J. (concurring). 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.1 

¶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 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. 

¶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. 

 

1 The majority opinion also does not apply a reasoned 

statutory interpretation that presumes the constitutionality of 

Wis. Stat. § 343.305. I do not address that failure in this 

concurrence because I apply Mitchell v. Wisconsin, 139 S. Ct. 2525 

(2019), to uphold the search of Prado's blood.
No. 2016AP308-CR.pdr

2

I. BACKGROUND2

¶76 The vehicle Prado was driving crossed the centerline and 

collided with an oncoming vehicle, killing the other driver and 

injuring Prado's passenger and herself. A first responder saw 

Prado lying in a ditch near the crash and smelled the odor of 

intoxicants on her breath when he approached her. Prado, who had 

three prior OWI convictions, was transported to a hospital. 

Officer Parker met the unconscious Prado in the hospital. He read 

her the Informing the Accused form and then ordered that Prado's 

blood be drawn and tested. Her blood test revealed that she had 

a prohibited alcohol concentration (PAC) of 0.081 and that her 

blood also contained benzoylecgonine, the major metabolite of 

cocaine.3

¶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 detectable amount of 

a restricted controlled substance as a second or subsequent 

 

2 The majority opinion ably sets forth the factual background, 

so I recount only that which is necessary to understand the 

discussion that follows.

3 Benzoylecgonine is the major metabolite of cocaine. A.W. 

Jones et al., Concentrations of Cocaine and its Major Metabolite 

Benzoylecgonine in Blood Samples From Apprehended Drivers in 

Sweden, Forensic Sci. Int'l, May 20, 2008. 
No. 2016AP308-CR.pdr

3

offense; operating a motor vehicle while under the influence of an 

intoxicant as a 4th offense and three other related counts. 

¶78 She moved to suppress the results of her blood test, 

claiming that the unconscious driver provisions in Wis. Stat. 

§ 343.305(3)(b) and (ar) were unconstitutional, facially and as 

applied to her. The circuit court granted suppression because 

Prado's blood was drawn without a warrant, and the circuit court 

concluded that the lack of a warrant violated her Fourth Amendment 

right to be free from unreasonable searches. 

¶79 The State appealed. The court of appeals reversed, in 

reliance on the good faith exception to the exclusionary 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.
No. 2016AP308-CR.pdr

4

¶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 
No. 2016AP308-CR.pdr

5

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. 

(1) The blood draw is taken to obtain evidence of 

intoxication from a person lawfully arrested for a 

drunk-driving related violation or crime, (2) there is 

a clear indication that the blood draw will produce 

evidence of intoxication, (3) the method used to take 

the blood sample is a reasonable one and performed in a 

reasonable manner, and (4) the arrestee presents no 

reasonable objection to the blood draw. 

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 
No. 2016AP308-CR.pdr

6

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 was 

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, 

 

4 Richards had a PAC of 0.196. State v. Richards, 2020 WI 

App 48, ¶12, 393 Wis. 2d 772, 948 N.W.2d 359. 
No. 2016AP308-CR.pdr

7

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 because PAC evidence was 

"dissipating" and "some other factor create[d] pressing health, 

safety or law enforcement needs that would take priority over a 

warrant application." Mitchell, 139 S. Ct. at 2537.5 Here, it 

was Prado's own health and safety that set law enforcement's 

priorities. 

¶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 

 

5 Mitchell v. Wisconsin, 139 S. Ct. at 2539, left open a 

possibility that a warrant might have been required if blood were 

not likely to be drawn for medical reasons. However, that 

possibility does not apply here, nor does Prado argue that it 

applies. 
No. 2016AP308-CR.pdr

8

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 

 

6 Blood tests are important for conscious as well as 

unconscious drivers because it is only with a blood test that a 

driver's use of cocaine will be detected. Prado would have avoided 

a charge of driving after ingesting a prohibited substance, e.g., 

cocaine, without a blood test.
No. 2016AP308-CR.pdr

9

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 standard 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.
No. 2016AP308-CR.pdr

1