They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.
It’s a long opinion. Forty-four pages! But it’s not bloated; it’s actually remarkably readable. There’s just a lot going on. Prado was a driver in a two-car crash. The other driver was killed. Police thought Prado was intoxicated, but she was also severely injured and unconscious. So, as we’ve seen before, the officer read her the implied-consent form, she obviously didn’t respond, and he ordered her blood drawn without attempting to get a warrant. (¶¶4-5). She moved to suppress, and the state countered that the statute supplied her consent, and that if it wasn’t constitutional, the officer could still rely on it in good faith. The circuit court suppressed the blood evidence and the state appealed. (¶6).
The court stayed the appeal for over two years in the hope that the issue would get resolved in one of the many other cases that have raised it. That didn’t happen–in fact, the last time the court of appeals certified the question to SCOW, in Hawley, that certification was declined. So, the court of appeals goes ahead and tackles it.
There’s a hurdle the court has to clear first, though. In its prior certifications of the question, the court has said it can’t decide the question because two of its prior decisions are in conflict, and it of course cannot overrule precedent. The cases are State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, and State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867. Without getting into too much detail, Padley says the implied consent statute generally does not supply real consent, whereas Wintlend said that it does. So, what to do?
The court follows Prado’s argument and holds that Wintlend, a 2002 case, has been overruled–not by the court of appeals, but by the Supreme Court, in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). There were three petitioners in that case; actually it’s Mr. Beylund, rather than Mr. Birchfield, whose facts guide the court of appeals here. The court distills three “principles” from Wintlend (a decision which the court notes failed to cite any cases on consent or to apply the longstanding totality-of-the-circumstances analysis):
(1) a blood test is a “minimal” intrusion that can be coerced if there is a sufficiently compelling State purpose justifying the intrusion; (2) drivers give “implied consent” to chemical testing at the time they apply for a license—long before the search requested by an officer is contemplated—and this implied consent satisfies the Fourth Amendment; and (3) the implied consent statute does not violate the Fourth Amendment because even if the statute is coercive, that coercion is reasonable.
(¶41). Looking to Birchfield/Beylund, the court says none of these principles can be good law any longer: a blood test is intrusive, consent is assessed at the time of the draw, and “reasonable coercion” is not the test for consent–it’s voluntariness under all the circumstances. (¶¶45-47). So, the court says, Birchfield overruled Wintlend, and it is free to decide this case on the merits.
It doesn’t have a lot of trouble doing so; the writing is really on the wall after Birchfield. The court first rejects the notion that the consent imputed by the statute is “consent” in the constitutional sense, for some of the same reasons noted above. (¶¶52-56). It also declines what it views as the state’s request to either recognize, or perhaps to establish, a warrant exception specifically for the implied-consent law. (¶¶57-62).
The court also declines to consider whether the draw here was justified by exigent circumstances under Mitchell v. Wisconsin, but it does accept the state’s argument about good faith. Prado argued that the implied-consent law was plainly unconstitutional at the time of the draw because Missouri v. McNeely, 569 U.S. 141 (2013), had been decided. (Birchfield had not.) McNeely contains some strong language disapproving of “categorical” exceptions to the warrant requirement, but the court says it’s not so clear whether that language nixed any categorical rule, or simply categorical rules of exigency. (¶72). So, the court says, given the earlier Wisconsin cases approving of the implied-consent law, the officer could reasonably rely on it. Thus even though the court holds the draw here unconstitutional, Prado gets no remedy.
The good-faith rule is, of course, something against which the defense bar has fought a long and mostly losing battle. Even though the court applies it here, the discussion does have some language expressing ambivalence about it. (¶70).