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Wisconsin Supreme Court: Incapacitated Driver Law Is Unconstitutional

Posted on in OWI

Waukesha County criminal defense lawyerEvery state in the country has an implied consent law. Basically, this law means that by accepting the privilege drive a vehicle, a licensed driver automatically consents to chemical or blood testing if a police officer has probable cause to believe that driver is under the influence of alcohol or drugs. Wisconsin’s implied consent law goes a step further. The state’s implied consent law contains a provision that stipulates that an incapacitated driver is “presumed not to have withdrawn” their consent of testing, even if they are not conscious.

This provision meant that police could conduct blood testing on a driver who was totally unconscious and unaware of what the police were doing. However, this will no longer be the case as the Wisconsin Supreme Court recently ruled that that provision is unconstitutional and violates the incapacitated driver’s Fourth Amendment protecting against unconstitutional search and seizure.

The Case

The unanimous decision was made by the justices in the case of State v. Prado. In December 2014, the defendant was severely injured in a car crash that killed the other driver. At the hospital, a police officer read the defendant, who was unconscious and intubated, the informing the accused script contained in the state’s implied consent law. Since she was unconscious, she did not answer the officer, however, because he thought he was within his rights under the law, he had a nurse obtain a blood sample without obtaining a warrant to do so first.

Police charged the defendant with homicide by drunk driving, fourth-offense drunk driving, and causing injury by drunk driving charges. The blood test had revealed her blood alcohol content at 0.081 percent, which is just over the legal limit. However, the defendant has three prior OWI convictions and the legal limit for a fourth OWI offense in Wisconsin is 0.02 percent.

During the trial, the defendant’s attorney moved to suppress the blood test results as evidence on the grounds that the incapacitated driver provision is unconstitutional. The judge agreed, suppressed the blood test, and dismissed the case.

The prosecution appealed and the Wisconsin appeals court ruled that although the officer acted in good faith and agreed the law was unconstitutional, the trial judge should not have suppressed the test. The appeals court also threw out the trial judge’s ruling to dismiss the case.

The Supreme Court affirmed the appeals court decision. They ruled the law is unconstitutional, however, they also agreed that the case should proceed against the defendant.

Let a Waukesha County Defense Attorney Help

Penalties for OWI in Wisconsin are harsh. Even a first offense will result in automatic loss of license and fine. Subsequent convictions also include mandatory jail time, and with an OWI look back period of 10 years, many drivers never get the opportunity to have a clean slate.

If you have been charged with operating while intoxicated, do not try defending against these charges on your own. Contact Wolff & Sonderhouse, LLP to find out what legal options you may have. Call 262-232-6699 today to schedule a free consultation with one of our skilled Waukesha OWI defense attorneys.




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