State v. Prado

960 N.W.2d 869

2021 WI 64

STATE of Wisconsin, Plaintiff-Appellant-Petitioner,

v.Dawn M. PRADO, Defendant-Respondent-Cross Petitioner.

No. 2016AP308-CR

Supreme Court of Wisconsin.

Oral Argument: March 18, 2021

Opinion Filed: June 18, 2021

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.

An amicus curiae brief was filed by Douglas Hoffer, assistant city attorney, Stephen C. Nick, city attorney and City of Eau Claire, Eau Claire.

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.

ANN WALSH BRADLEY, J.

¶1 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. § 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 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.

¶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.

¶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, 133 S.Ct. 1552, 185 L.Ed.2d 696 (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 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.

¶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 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. § 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...