Incapacitated Driver Implied Consent Statute Violates Fourth Amendment
Wisconsin’s Supreme Court justices unanimously agreed that the incapacitated driver provision in Wisconsin’s implied consent law (Wis. Stat. § 343.305), which deems persons driving or operating motor vehicles upon Wisconsin’s highways to have consented to breath, blood or urine tests to determine intoxication when requested to do so by a law enforcement officer and presumes unconscious persons have not withdrawn consent, is unconstitutional under the Fourth Amendment which protects against unreasonable search and seizure. State v. Prado, 2021 WI 64.
Prado was involved in a two-vehicle crash which killed one person and threw Prado from her vehicle. At the scene, responders reported the smell of intoxicants on Prado’s breath. Prado was transported to a nearby hospital and police officers followed. Upon arrival, officers found her unconscious. The responding officer read Prado the statutory “Informing the Accused” form. As she was unconscious, Prado did not respond. Without applying for a warrant, officers then ordered a nurse to draw Prado’s blood. A subsequent test revealed a blood alcohol content above the legal limit. Prado was charged with nine counts relating to the crash. At trial, she moved to suppress the blood test evidence, arguing that the incapacitated driver provision was unconstitutional.
The circuit court agreed with Prado and granted the motion to suppress. The state then appealed. The court of appeals agreed the statute is unconstitutional but concluded that the evidence should not be suppressed because the officer who ordered the blood draw acted in a good faith reliance on the incapacitated driver provision. Both the state and Prado petitioned the Wisconsin Supreme Court to review the court of appeals decision. The state appealed the decision declaring the statute unconstitutional, while Prado sought review of the decision to allow the blood draw evidence.
Before the Supreme Court, Prado argued that the incapacitated driver provision violates the Fourth Amendment’s protections against unreasonable searches by creating a prohibited exception to the requirement of a warrant when consent is not obtained. The State argued that the court of appeals erred in not applying the U.S. Supreme Court’s decision in Mitchell v. Wisconsin, which held that a warrantless search of an unconscious drunk driving suspect is almost always permissible under the exigent circumstances exception to the warrant requirement. The Wisconsin Supreme Court agreed with Prado that consent and exigent circumstances are two separate and distinct exceptions to the Fourth Amendment’s warrant requirement. The Court rejected the State’s argument, noting the incapacitated drivers provision within the implied consent statute focuses on consent and does not involve application of the exigent circumstances exception. The court ruled that consent deemed by statute is not the same as actual consent to a search. When generally determining consent, a court will look to words, gestures or conduct, an examination fundamentally at odds with deemed consent as provided by the statute. When looking at consent under the incapacitated driver provision, the only question a court needs to ask when determining consent is if the individual was operating a motor vehicle. Under State v. Reed, a 2018 case, consent for a Fourth Amendment search must be “unequivocal and specific.” Consent that is “deemed” through statute cannot be either of these as an incapacitated person cannot show any conduct to demonstrate intent to consent. Further, a person has a constitutional right to refuse a search absent a warrant. The statute does not afford a driver an opportunity to decline a search. As a result, the court held that the incapacitated driver provision is unconstitutional.
Ordinarily, evidence obtained through an unlawful search is not admitted at trial, a practice known as the exclusionary rule. However, the exclusionary rule is not absolute, and courts have crafted exceptions in instances where exclusion does not serve the rule’s purpose. The exclusionary rule seeks to protect defendants’ constitutional rights by deterring deliberate, reckless or grossly negligent conduct by law enforcement. When law enforcement officers have reasonably relied on settled law that was subsequently overruled, the court recognizes a “good faith” exception to the exclusionary rule. Prado argued that the good faith exception should not apply here as the law surrounding the incapacitated driver provision was not settled at the time of her blood draw. The court rejected this argument, stating that it would violate the U.S. Supreme Court’s ruling in Illinois v. Krull holding that in the context of the good faith exception, a statute is not questioned law unless explicitly unconstitutional. The Court reasoned that an officer cannot be expected to question the judgment of the legislator which passed the law. In the present case, the court recognized that no previous decision has declared the incapacitated driver provision to be unconstitutional. It would be unreasonable to have the responding officer synthesize case law to discern the provision as unconstitutional when no court had declared it so. The Court summarily rejected Prado’s argument that the court expand the exclusionary rule from a deterrent to law enforcement conduct to a remedy for constitutional violations, stating that recognizing this extension would violate stare decisis which requires courts to adhere to both their own precedent and those of superior courts. State v. Kerr, a 2018 Wisconsin Supreme Court case, cemented the breadth of the exclusionary rule, limiting its analysis to police misconduct. Prado did not provide sufficient justification to revisit this ruling. As a result, the court ruled that the good faith exception applied in this case and that the blood evidence should not be suppressed.
Municipality Must Be Party to Cooperative Plan Affecting its Boundary
In a unanimous decision, the Wisconsin Supreme Court held that the Wisconsin Department of Administration erroneously interpreted Wis. Stat. § 66.0307(2) when it approved a cooperative boundary plan consolidating a village and town where the plan physically altered or made a difference to a third municipality’s boundary line and that third municipality was not a party to the plan. City of Mayville v. Dep't of Admin., 2021 WI 57, 960 N.W.2d 416.
The City of Mayville (City) and the Village of Kekoskee (Village) are both surrounded by the Town of Williamstown (Town) but do not share a border. After the Village had trouble recruiting residents to run for the village board, it advised the Town that it was considering dissolution. After meeting to discuss possibilities, the Town and the Village submitted a cooperative boundary plan to the Department of Administration (DOA) pursuant to Wis. Stat. §66.0307 that essentially consolidated the two entities. The City was not a party to the plan and was not involved until DOA conducted a public hearing on the proposal at which time the City opposed the plan. The plan went through three rounds of submission before DOA approved it at which point the City sought judicial review of DOA’s decision. DOA and the Village moved to dismiss, arguing that the City did not have standing to challenge the decision.
The circuit court concluded the City did have standing and that alternative statutes exist that would allow the Village and Town to achieve its desired result, so use of § 66.0307 was unnecessary and did not permit a village to attach a town under the guise of a boundary agreement. Further, the court reasoned that finding for the Village and DOA would require it to read into the statute an ability to consolidate two municipalities via a cooperative plan, which the court refused to do. DOA and the Village appealed to the court of appeals which affirmed the circuit court on modified grounds. The court of appeals interpreted the cooperative plan statute as requiring the City to be included as a party because the plan presented the possibility that the City’s boundaries could be altered. DOA and the Village sought Wisconsin Supreme Court review.
The court began by concluding that the City had standing. Because the cooperative agreement had the potential to deprive the City of the right to (1) exercise extraterritorial zoning and plat approval; (2) potential future annexation; (3) recover funds used to construct a sewer facility that would now serve territory covered by the plan, the City was threatened with an injury to its interest and was an aggrieved party with legal standing to seek judicial review of the decision.
The Supreme Court noted that Wis. Stat. § 66.0307(2) only permits boundary line changes if the municipalities whose boundaries are affected by the cooperative plan are parties to that plan. Even though the Court recognized that the Plan did not, in and of itself change the City’s boundary line, it noted that the Plan set conditions that must be met if the City’s boundary lines are to change. The Court stated:
Upon approval of the plan, Mayville's ability to grow, or change its boundary lines, is limited to the specific lands and processes outlined in the Plan. Said differently, the Plan not only contemplates a change to Mayville's boundary lines, it also has the effect of precluding Mayville's expansion if the Plan's conditions for changing its boundary line are not met. Mayville should have been a party to, and had a voice in, proposed alterations to its municipal authority.
2021 WI 57, ¶ 35.
Because the Court held that Mayville was required to be a party to the Plan, it did not address whether the cooperative planning statute permits municipalities to consolidate using the cooperative boundary statute.
Income Approach Properly Considered Property’s Contamination
In a 4-3 decision, the Wisconsin Supreme Court held that an assessor’s use of the income approach to value contaminated property according to its highest and best use as a parking lot, based on the property’s income-generating potential, properly considered the impairment of the property’s value due to contamination as required by Wis. Stat. § 70.32(1m). The Court affirmed the court of appeals’ decision which affirmed the board of review determination upholding the assessor’s valuation. State ex rel. Collison v. City of Milwaukee Board of Review, 2021 WI 48.
Ronald Collison owns a piece of property in Milwaukee within the vicinity of the Fiserv Forum. The property held a vacant building and a parking lot, which leased parking spaces. In 2012, Collison removed underground storage tanks from the property. Subsequent soil analysis revealed contamination requiring remediation before any new construction could take place on the property. In 2016, the city assessed the property at $31,800.00 using an income approach calculation. The city acknowledged that the building had no value but concluded the real and potential income generated from the parking lot did. Collison challenged this assessment, arguing that the property had zero value because its contamination prevented him from selling it. He relied on Wis. Stat. § 70.32(1m) which requires assessors to consider impairment to a property due to contamination in their valuation. Collison also argued that §70.32 contradicts the City of Milwaukee Environmental Containment Standards (CMECS).
After the Board of Review upheld the assessor’s valuation, Collison sought certiorari review of the decision in circuit court. The court declined to address Collison’s argument regarding the CMECS as the assessor did not use the CMECS when making his determination. The court determined that Collison failed to bring sufficient evidence to challenge the assessor’s use of the income approach and concluded that the use of the income approach complied with § 70.32(1m), as the use of that method was driven by the presence of the contamination. Collison then appealed to the Wisconsin Court of Appeals which affirmed the circuit court. Collison petitioned the Wisconsin Supreme Court for review.
The court rejected Collison’s argument that the property has a value of zero because that argument demands that a sales approach be used and ignores the three-tier hierarchy for valuation that assessors must use under Wis. Stat. § 70.32(1) (arm’s length sale of the property, followed by sales of comparable properties and, if those are not possible, consideration of all the factors collectively which have a bearing on value of the property. Additionally, the Court stated that Collison’s argument ignores that it is his burden to present evidence before the board to support his valuation of zero. Collison did not provide any such evidence during the board hearing. Like the circuit court and court of appeals, the Supreme Court declined to address Collison’s argument that Wis. Stat. § 70.32 contradicts the City of Milwaukee Environmental Containment Standards (CMECS) since the assessor did not use the CMECS in valuing the property.
Local Health Officers Lack Authority to Close Schools
In a 4-3 decision, the Wisconsin Supreme Court held that Wis. Stat. § 252.03 does not authorize local health officers to close schools, and a local health officer’s order prohibiting in-person instruction for children in grades 3-12 infringed the Petitioners’ (parents of children enrolled in private schools and religious schools) fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution, which offers broader protection than the U.S. Constitution’s first amendment. James v. Heinrich, 2021 WI 58, ¶ 3, 960 N.W.2d 350.
In concluding that local health officers lack authority to close schools in response to the COVID-19 pandemic, the Court noted that the statute authorizing local health officers to take reasonable and necessary actions to control and prevent communicable diseases lists a series of discrete powers but omits the power to close schools, while the closely-related statute governing powers of the Wisconsin Department of Health Services (DHS) regarding communicable diseases specifically permits the department to close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics suggesting that the legislature granted DHS and local health officers different powers.
The Court concluded that petitioners demonstrated that they had sincerely held religious beliefs, that the local health officer’s order burdened those beliefs, and that the order was not the least restrictive means of serving the county's compelling interest in slowing the spread of disease.
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Reminder: SLLC Offering 3 Free Supreme Court Webinars!
The State & Local Legal Center (SLLC) is offering 3 Supreme Court review webinars covering all the big Supreme Court cases for states and local governments. These webinars are intended for both lawyers and non- lawyers. The second and third webinars will focus, respectively, on first amendment cases and police cases. More detailed information on each of the webinars, including registration links, is below.
From the Affordable Care Act to voting rights to takings this U.S. Supreme Court term had it all! This webinar will cover all the cases of interest to states and local governments except First Amendment and police cases which will be covered in subsequent webinars. Join Jeremy Feigenbaum, New Jersey State Solicitor, who argued a sovereign immunity case, Bob Peck, President of the Constitutional Litigation Center, who wrote an SLLC amicus brief in a climate change case, and James Romoser, SCOTUS blog editor, for the SLLC’s most popular event of the year.
July 15; 1PM CST Register here
The Supreme Court’s First Amendment docket didn’t disappoint in 2020-2021. The Court heard cases involving the speech and association rights, in Americans for Prosperity Foundation v. Bonta, involving a challenge to California’s charitable donor-disclosure requirement; the speech right, in Mahanoy Area School District v. B.L., involving a challenge to a school’s suspension of a student for off-campus speech; and the free exercise right, in Fulton v. Philadelphia, involving a challenge to the city’s non-discrimination requirement for its government contractors. Kirti Datla will discuss general trends in the Court’s First Amendment jurisprudence, these cases, and the religious liberty cases related to COVID-19 restrictions that the Court decided on its “shadow docket.” Kirti authored an amicus brief for the State and Local Legal Center in Carney v. Adams—a challenge to Delaware’s partisan-balance requirements for its judiciary—while a senior associate at Hogan Lovells and is now the Director of Strategic Legal Advocacy at Earthjustice.
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Police practices featured front and center in multiple U.S. Supreme Court cases this term. Join Shay Dvoretzky, Skadden, Arps, Slate, Meagher & Flom, who argued a Fourth Amendment case involving the “community caretaking” exception, and David Gans, Director of the Civil Rights, Human Rights, and Citizenship Program at the Constitutional Accountability Center, which filed multiple amicus briefs in Fourth Amendment and qualified immunity cases this term, in a discussion of all the police cases. Topics range from Fourth Amendment searches and seizures to excessive force to local governments holding onto impounded vehicles after a bankruptcy stay has been filed.
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