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SCOW will (yet again) consider implied-consent law, good faith, possibly exigency

State v. Dawn M. Prado, 2016AP308, cross-petitions for review of a published court of appeals decision granted 10/21/20; case activity (including briefs and, now, PFRs!)

You’ve heard this one before. Here’s our post on the court of appeals decision, which struck down the unconscious-driver provisions of the implied-consent statute but nevertheless declined to suppress the blood draw results under the good-faith doctrine. Perhaps you imagined the matter resolved, particularly given that after several failures to decide the question, SCOW had begun declining the court of appeals’ certification requests on the topic. No such luck.

Prado, naturally, petitioned for review of the court of appeals decision admitting the test result. Less naturally, so did the state, despite having received the result–admission of the blood evidence–that it had sought. Can they do that? They say they can, claiming the invalidation of the statute counts as a “partially adverse” ruling. This is dubious, but it doesn’t matter practically, since Prado’s petition would have been enough to get the case before the court. At any rate, both petitions are granted.

There are three main issues in play here. Given that the court’s composition has changed since it last took a crack at implied consent, one can hope that they’ll be able to break their historical deadlock on whether “implied consent” is the same thing as “consent” in the Fourth Amendment sense. But they sure don’t have to: they could follow the court of appeals in deciding the case on good faith, thereby ducking the consent question. Alternatively they could accept the state’s argument that the case presented exigency circumstances under SCOTUS’s new rule from Mitchell. Or, of course, they could do something totally out of left field and previously unimagined. Stay tuned.

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