MADISON, Wis. (AP) — A Wisconsin appeals court ruled Thursday that taking blood samples without a warrant from incapacitated drivers suspected of driving drunk is unconstitutional.
The 4th District Court of Appeals ruled that a provision in state law that allows for such samples to be taken violates the Fourth Amendment that protects against unconstitutional search and seizure. That provision states that incapacitated drivers, those who are unconscious due to drugs or alcohol, are presumed not to have withdrawn consent for blood tests.
The Wisconsin State Journal reported Thursday that despite the ruling, the appeals court still threw out a lower court ruling that dismissed a drunken driving homicide case against a Madison woman that has languished since 2016. The appeals court said that although there was no warrant to obtain blood samples from Dawn Prado after the December 2014 crash, a Fitchburg police officer believed in good faith that a warrant was not needed to take the sample.
Despite a flurry of court rulings across the country on the issue, the appeals court said the question of whether the incapacitated driver provision of Wisconsin’s law is an unconstitutional search or seizure has never been addressed.
Gillian Drummond, a spokeswoman for the state Department of Justice, which represented prosecutors, said the decision is being reviewed. Anthony Jurek, the attorney representing Prado, did not immediately respond to a request for comment.
In 2016, a Dane County judge threw out a blood test taken from Prado, who was charged in April 2015 with homicide by drunken driving. The judge ruled that police should have obtained a search warrant to take Prado’s blood, in keeping with the 2013 U.S. Supreme Court ruling. Prosecutors appealed, and the case has been on hold while other cases that covered similar territory were heard by appeals courts.
A criminal complaint said Prado had a blood alcohol concentration of 0.081%, just over the legal limit in Wisconsin, when a vehicle she was driving crossed the center line on a highway in Fitchburg and struck a car driven by Janet M. Grady, who died at the scene.
Because of three prior drunken driving convictions, Prado was allowed a 0.02% maximum blood alcohol concentration.