State v. David W. Howes , 373 Wis. 2d 468 ( 2017 )

2017 WI 18SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1870-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
David W. Howes,
Defendant-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: March 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 20, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: John W. Markson
JUSTICES:
CONCURRED: GABLEMAN, J. joined by ZIEGLER, J. concur
(Opinion filed).
KELLY, J. concurs (Opinion filed).
DISSENTED: ABRAHAMSON, J. joined by BRADLEY, A. W., J. and
KELLY, J. (joining Part II insofar as it
discusses the constitutionality of Wis. Stat. §
343.305 (3) (b)). (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant the cause was argued by Ryan J
Walsh, chief deputy solicitor general, with whom on the brief
was Misha Tseytlin, solicitor general, Brad D. Schimel, attorney
general.
For the defendant-respondent, there was a brief by Mark A.
Eisenberg, Jack S. Lindberg and Eisenberg Law Office, S.C.,
Madison, and oral argument by Mark A. Eisenberg.
2017 WI 18NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1870-CR
(L.C. No. 2013CF1692)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant, FILED
v. MAR 1 2017
David W. Howes, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.
Appeal from an order of the Circuit Court. Reversed and
cause remanded.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case comes
before us by certification from the court of appeals. David
Howes was charged with operating a vehicle while intoxicated
(OWI) (fourth offense while having a prior OWI within five
years) in violation of Wis. Stat. § 346.63(1)(a) (2013-14)1 and
operating a vehicle with a prohibited alcohol concentration
(PAC) (fourth offense while having a prior PAC within five
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
No. 2014AP1870-CR
years) in violation of § 346.63(1)(b) based on analysis of his
blood showing a blood alcohol concentration of 0.11 percent.
¶2 Howes moved to suppress the results of a warrantless
blood draw, arguing that the deputy that arrested Howes lacked
probable cause to do so and, additionally, that the deputy
violated Howes' rights by obtaining a warrantless blood draw.
The circuit court granted Howes' motion to suppress.2 The
circuit court concluded that the deputy had probable cause to
arrest Howes. However, the court reasoned, relying heavily on
State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d
867, that the section of Wisconsin's implied consent statutes
that permits a blood draw from an unconscious individual is
unconstitutional, unless exigent circumstances exist. Because
the circuit court concluded that none existed, it suppressed the
report of Howes' blood alcohol concentration.3
¶3 We conclude that the circuit court correctly
determined that the deputy had probable cause to arrest Howes
for operating a vehicle with a PAC, and that Howes was arrested
prior to obtaining a blood sample. Moreover, based on the
totality of circumstances herein, the deputy's warrantless
search was permissible under the Fourth Amendment of the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution under the exigent circumstances doctrine that
2
The Honorable John W. Markson of Dane County presided.
3
See Wis. Stat. § 343.305(3).
2
No. 2014AP1870-CR
relates to the risk of destruction of evidence.4 Stated more
fully, under the totality of circumstances presented herein,
which included a seriously injured, unconscious person, who was
being subjected to medical treatments for his injuries and who
had 0.02 percent as his PAC threshold, a reasonable officer
could have concluded that further delay in drawing Howes' blood
would have led to the destruction of evidence through the
dissipation and dilution of alcohol in Howes' bloodstream.
Therefore, we reverse the order of the circuit court and remand
for further proceedings.
I. BACKGROUND
¶4 At approximately 9:18 p.m. on July 7, 2013, Deputy
Robert Schiro of the Dane County Sheriff's Office received a
call from dispatch indicating that an individual had been in a
motorcycle crash with a deer. Dispatch detailed that the driver
was unconscious. Deputy Schiro arrived at the scene of the
accident and found the deceased deer and the motorcycle in the
middle of the road. The driver of the motorcycle was the
defendant in the present case, David Howes. He was positioned
approximately 40 feet away from the deer and was seriously
4
Because we conclude that the search was reasonable under
the totality of circumstances presented herein, we need not
reach whether Wis. Stat. § 343.305(3)(b) is facially
unconstitutional. See generally, State v. Stoehr, 134 Wis. 2d
66, 70, 396 N.W.2d 177 (1986) ("When this court grants direct
review upon certification, it acquires jurisdiction of the
appeal, which includes all issues, not merely the issues
certified or the issue for which the court accepts the
certification.").
3
No. 2014AP1870-CR
injured and unconscious. When the deputy arrived, Emergency
Medical Services (EMS) was already attending to Howes.
¶5 At the scene, there were several bystanders situated
near EMS and the ambulance. The deputy unsuccessfully searched
for a witness that had observed the accident. Though
unsuccessful, the deputy testified that an individual approached
him and, referring to Howes, stated he smelled an odor of
intoxicants. As the lone police officer at the scene, the
deputy had multiple responsibilities relating to containing the
accident scene and was unable to obtain the individual's name.
¶6 While EMS continued to attend to Howes, the deputy had
to ensure the safety of those traveling through the accident
scene because a dead deer and a motorcycle were partially
blocking the road. The deputy began to direct traffic lanes
that ran through the scene of the accident. The deputy also
ensured that no one moved the motorcycle and preserved other
evidence relating to the accident. The deputy asked bystanders
to move out of EMS's way. During his investigation, other
officers arrived, and Howes, still unconscious, was transported
to the hospital.
¶7 The deputy then left to go to the hospital to follow
up with Howes. During the drive to the hospital, the deputy
checked Howes' Department of Transportation records. He
testified that his purpose was to confirm that the motorcycle
driver was in fact Howes and to check Howes' driving record. As
a result of this record check, the deputy discovered that Howes
had three prior OWI/PAC convictions. These prior convictions
4
No. 2014AP1870-CR
signaled to the deputy that Howes had a PAC threshold more
restrictive than the usual 0.08 percent. Specifically, Howes
violated the law if he had operated the motorcycle with a blood
alcohol concentration of as little as 0.02 percent.5
¶8 After the deputy arrived at the hospital, he
immediately spoke with the two Emergency Medical Technicians
(EMTs), who were in the ambulance with Howes as he was
transported to the hospital. The deputy inquired about whether
either of the EMTs had smelled alcohol on Howes' breath. The
deputy testified that the EMT positioned in the ambulance near
Howes' head smelled a "high odor of intox coming from" Howes.
The EMT positioned in the ambulance at Howes' feet did not smell
intoxicants.
¶9 The deputy proceeded to the emergency room in which
medical staff was treating Howes. The deputy testified that
"numerous nurses and medical staff [were] attending to [Howes]
at the time." The ongoing medical treatment prevented the
deputy from approaching Howes. However, one nurse told the
deputy that there was a strong odor of intoxicants in Howes'
room.
¶10 The deputy observed that Howes had not regained
consciousness and that he was intubated to assist his breathing.
The deputy spoke with a physician with regard to Howes' medical
condition. The physician said that Howes was in critical
5
See Wis. Stat. § 340.01(46m)(c).
5
No. 2014AP1870-CR
condition and possibly had a brain injury. He said that Howes
needed a CT scan to further evaluate his injuries.
¶11 At approximately 10:15 p.m., the deputy arrested Howes
for operating a motor vehicle with a prohibited alcohol
concentration. The deputy testified that he arrested Howes for
the following reasons: (1) three different individuals smelled
an odor of intoxicants emanating from Howes; (2) Howes had a
prohibited alcohol concentration threshold of 0.02 percent due
to his previous drunk-driving convictions; and (3) the crash.
¶12 After arresting Howes, and while Howes was still
unconscious, the deputy read Howes the informing the accused
form. The deputy asked Howes if he would submit to an
evidentiary chemical test of his blood, and Howes did not
respond.6 The deputy then instructed hospital staff to draw a
blood sample to test for alcohol concentration.
¶13 At 11:17 p.m., roughly two hours after the accident
and an hour after the deputy asked hospital staff to draw Howes'
blood, a phlebotomist completed the blood draw. The deputy
testified that the hour delay occurred either because medical
personnel at the hospital were too busy to draw the blood, or
Howes may have had a CT scan during this interim period.7 The
6
The deputy said he took these steps even though Howes was
unconscious because he thought he was legally required to do so.
7
If a CT scan occurred during this period, it would be
consistent with a physician's statement to the deputy shortly
after the deputy arrived at the hospital that Howes needed to
have a CT scan.
6
No. 2014AP1870-CR
report of the blood test stated that Howes had a 0.11 percent
blood alcohol concentration. This was well in excess of the
0.02 percent prohibited alcohol concentration threshold to which
he was subjected due to his prior drunk-driving convictions.
¶14 Howes was charged with operating a vehicle while
intoxicated (OWI) (fourth offense while having a prior OWI
within five years) in violation of Wis. Stat. § 346.63(1)(a) and
operating a vehicle with a prohibited alcohol concentration
(PAC) (fourth offense while having a prior PAC within five
years) in violation of § 346.63(1)(b). Howes moved to suppress
the report that resulted from the blood draw. The circuit court
granted Howes' motion. First, the circuit court concluded that
the deputy had probable cause to arrest Howes. The court based
its conclusion, in part, on the statements to the deputy by
various individuals indicating that there was a smell of
intoxicants coming from Howes. The court also concluded that
"central to the probable cause determination [was] that this was
a gentleman who had three prior convictions," and was subject to
a PAC threshold of 0.02 percent, rather than 0.08 percent. As
part of this determination, the court found that the deputy had
searched Howes' driving record prior to arresting Howes; and
therefore, he knew that Howes was subject to a PAC threshold of
0.02 percent.
¶15 Next, the circuit court addressed the
constitutionality of Wisconsin's implied consent statute as it
relates to unconscious persons, Wis. Stat. § 343.305(3)(b). The
court concluded that § 343.305(3)(b), which allows withdrawal of
7
No. 2014AP1870-CR
blood from an unconscious person, is unconstitutional if the
blood draw is done without a warrant or the presence of exigent
circumstances. After finding the statute unconstitutional, the
circuit court, without analysis, concluded that there were no
exigent circumstances presented by this case.
¶16 The State appealed and the court of appeals certified
the case for our review. We now reverse.
II. DISCUSSION
A. Standard of Review
¶17 "Our review of an order granting or denying a motion
to suppress evidence presents a question of constitutional
fact." State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421,
857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327
Wis. 2d 302, 786 N.W.2d 463). "When presented with a question
of constitutional fact, this court engages in a two-step
inquiry." Robinson, 327 Wis. 2d 302, ¶22.
¶18 First, the circuit "court's findings of evidentiary or
historical fact will not be overturned unless they are clearly
erroneous." State v. Richter, 2000 WI 58, ¶26, 235 Wis. 2d 524,
612 N.W.2d 29. Next, we "independently determine whether the
historical or evidentiary facts establish exigent circumstances
sufficient to justify the warrantless" search. Id.¶19 In the present case, we apply this two-step inquiry to
determine whether the warrantless blood draw was reasonable
under the Fourth Amendment of the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution.
8
No. 2014AP1870-CR
B. General Principles
¶20 A blood draw is a search of the person. Tullberg, 359
Wis. 2d 421, ¶31 ("A blood draw to uncover evidence of a crime
is a search within the meaning of the Fourth Amendment."). At
issue in the present case is whether the deputy acted reasonably
in instructing hospital personnel to draw Howes' blood when he
did not have a warrant. Accordingly, we must determine whether
the deputy's warrantless search of Howes was permissible under
the Fourth Amendment and Article I, Section 11.
¶21 "The Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution protect the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures." Id., ¶29 (quoting Robinson, 359 Wis. 2d
421, ¶24). "The touchstone of the Fourth Amendment is
reasonableness." Id. (internal quotation marks omitted). As
such, "[t]he Fourth Amendment does not proscribe all state-
initiated searches and seizures; it merely proscribes those
which are unreasonable." Id. (internal quotation marks
omitted). "An action is 'reasonable' under the Fourth
Amendment, regardless of the individual officer's state of mind,
'as long as the circumstances, viewed objectively, justify [the]
action.'" Brigham City, Utah v. Stuart, 547 U.S. 398, 404
(2006) (quoting Scott v. United States, 436 U.S. 128, 138
(1978)).
¶22 Absent from the text of the Fourth Amendment is the
obligation that the government must obtain a warrant to conduct
9
No. 2014AP1870-CR
a search. However, it is axiomatic that "warrants must
generally be obtained." Missouri v. McNeely, 133 S. Ct. 1552,
1569 (2013) (Roberts, C.J., concurring in part and dissenting in
part). Consistent with these principles, "[a] warrantless
search is presumptively unreasonable." Tullberg, 359 Wis. 2d
421, ¶30.
¶23 To overcome this presumption, a warrantless search
must fall under an exception to the warrant requirement. See
State v. Foster, 2014 WI 131, ¶32, 360 Wis. 2d 12, 856 N.W.2d
847 ("Consistent with the United States Supreme Court's
interpretation of the Fourth Amendment, we have adhered to the
basic principle that warrantless searches are per se
unreasonable unless they fall within a well-recognized exception
to the warrant requirement."). "One exception to the warrant
requirement is the exigent circumstances doctrine, which holds
that a warrantless search complies with the Fourth Amendment if
the need for a search is urgent and insufficient time to obtain
a warrant exists." Tullberg, 359 Wis. 2d 421, ¶30.
¶24 "There are four well-recognized categories of exigent
circumstances . . . 1) hot pursuit of a suspect, 2) a threat to
the safety of a suspect or others, 3) a risk that evidence will
be destroyed, and 4) a likelihood that the suspect will flee."
Richter, 235 Wis. 2d 524, ¶29. The burden is on the government
to establish that its actions fit into one of the well-
recognized exceptions. State v. Phillips, 2009 WI App 179, ¶7,
322 Wis. 2d 576, 778 N.W.2d 157. And, "the test for determining
10
No. 2014AP1870-CR
the existence of exigent circumstances is an objective one."
Robinson, 327 Wis. 2d 302, ¶30.
¶25 If exigent circumstances are present, we have
distilled four additional requirements that a warrantless blood
draw in a drunk driving case must satisfy to be reasonable under
the Fourth Amendment:
(1) the blood draw is taken to obtain evidence of
intoxication from a person lawfully arrested for a
drunk-driving related violation or crime, (2) there is
a clear indication that the blood draw will produce
evidence of intoxication, (3) the method used to take
the blood sample is a reasonable one and performed in
a reasonable manner, and (4) the arrestee presents no
reasonable objection to the blood draw.
State v. Kennedy, 2014 WI 132, ¶17, 359 Wis. 2d 454, 856 N.W.2d
834 (quoting State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d
399 (1993) abrogated in part by Missouri v. McNeely, 133 S. Ct.
1552 (2013)). We have "explained that probable cause to arrest
for a drunk-driving related violation or crime 'substitutes for
the predicate act of lawful arrest' under the first factor."
Id. (quoting Bohling, 173 Wis. 2d at 534 n.1). "The second
factor, whether there is a clear indication that the blood draw
will produce evidence of intoxication, in this case is also
satisfied by the same facts that support a finding of probable
cause to arrest." Id. (internal quotation marks omitted).
¶26 In the present case, there is no dispute as to the
presence of the third and fourth factors. The blood was drawn
in a reasonable manner; it was taken in a hospital by a person
authorized to draw blood. See State v. Krajewski, 2002 WI 97,
11
No. 2014AP1870-CR
¶47, 255 Wis. 2d 98, 648 N.W.2d 385 ("Krajewski and the State
stipulated that the blood draw was taken in a hospital by a
registered nurse. Thus, the blood draw was effected in a
reasonable manner."). Similarly, with respect to the fourth
factor, the suspect did not present a reasonable objection to
the type of search the deputy sought to conduct, a blood draw.8
Accordingly, we must examine whether the deputy lawfully
8
An analysis under the fourth factor does not require us to
determine whether an individual consented to a search; instead,
it refers to an objection to the type of search the officer
chose to conduct (e.g., a blood draw as opposed to a
breathalyzer). See State v. Krajewski, 2002 WI 97, ¶48, 255
Wis. 2d 98, 648 N.W.2d 385. As this Court in State v. Kennedy,
2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834 recognized, the
fourth factor is derived from the Supreme Court's decision in
Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the
Supreme Court explained that an analysis under the fourth factor
is reserved for those instances in which an individual has
raised a legitimate and significant objection to having his or
her blood drawn. The Court concluded that the defendant in that
case did not raise a reasonable objection to the blood draw
because the defendant was "not one of the few who on grounds of
fear, concern for health, or religious scruple might prefer some
other means of testing, such as the 'Breathalyzer' test
petitioner refused." Schmerber, 384 U.S. at 771. See also
State v. Krause, 168 Wis. 2d 578, 588, 484 N.W.2d 347 (Ct. App.
1992) ("Krause asserts, however, that his refusal still is
constitutionally protected because he told Officer Dornfeld that
he 'didn't believe in needles' and 'd[id]n't want AIDS.' This
argument fails. These isolated comments do not establish that
Krause is 'one of the few who on grounds of fear, concern for
health, or religious scruple might prefer some other means of
testing' whose wishes the Schmerber Court declined to
address."). Consequently, the fourth factor speaks to the
reasonableness of the type of search employed, not whether a
warrant was required to conduct the search. As such, to say
that Howes made no objection to the type of search is not to say
that Howes impliedly consented to being searched. Each inquiry
is analytically distinct.
12
No. 2014AP1870-CR
arrested Howes based on probable cause that Howes had driven
with a prohibited alcohol concentration, i.e., 0.02 percent or
higher. Next, we must determine whether exigent circumstances
existed such that the deputy was justified in proceeding without
a warrant.
C. Probable Cause to Arrest
¶27 With respect to the probable cause analysis, the
deputy in this case arrested Howes; therefore, the dispositive
inquiry is whether the deputy had probable cause to conduct this
arrest. We conclude that the deputy had probable cause to
arrest Howes for operation of a vehicle with a prohibited
alcohol concentration under the facts as found by the circuit
court.
¶28 "Warrantless arrests are unlawful unless they are
supported by probable cause." State v. Blatterman, 2015 WI 46,
¶34, 362 Wis. 2d 138, 864 N.W.2d 26. "Probable cause to arrest
... refers to that quantum of evidence within the arresting
officer's knowledge at the time of the arrest that would lead a
reasonable law enforcement officer to believe that the defendant
was operating a motor vehicle [at a prohibited alcohol
concentration]." Id. (quoting State v. Lange, 2009 WI 49, ¶19,
317 Wis. 2d 383, 766 N.W.2d 551). "The burden is on the state
to show [it] had probable cause to arrest." Id. (internal
quotation marks omitted). And, "[w]e evaluate the existence of
probable cause objectively, concerned with whether law
enforcement acted reasonably." Robinson, 327 Wis. 2d 302, ¶26.
13
No. 2014AP1870-CR
¶29 We look at the "totality of the circumstances to
determine whether probable cause . . . existed." Tullberg, 359
Wis. 2d 421, ¶33. "In dealing with probable cause, . . . as the
very name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983)
(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).
"This standard is case-specific: '[t]he quantum of information
which constitutes probable cause to arrest must be measured by
the facts of the particular case.'" Blatterman, 362 Wis. 2d
138, ¶35 (quoting State v. Paszek, 50 Wis. 2d 619, 625, 184
N.W.2d 836 (1971)).
¶30 A number of factors may be relevant to a determination
of probable cause in the context of an arrest for a drunk-
driving related offense. As we have previously detailed,
"factors sufficient to support a finding of probable cause have
included bloodshot eyes, an odor of intoxicants, and slurred
speech, together with a motor vehicle accident or erratic
driving." Kennedy, 359 Wis. 2d 454, ¶22.
¶31 Additionally, "[p]olice may properly consider prior
convictions in a probable cause determination." Blatterman, 362
Wis. 2d 138, ¶36; see also State v. Goss, 2011 WI 104, ¶24, 338
Wis. 2d 72, 806 N.W.2d 918. "Prior convictions are especially
relevant in this case because the statute reduced the PAC
threshold applicable to [the defendant] from 0.08% to 0.02%
alcohol concentration." Blatterman, 362 Wis. 2d 138, ¶36.
14
No. 2014AP1870-CR
¶32 In this case, the deputy checked Howes' driving
record, which indicated that Howes had three prior OWI/PAC
convictions. This lowered Howes' PAC threshold to 0.02 percent.
The circuit court properly found this highly relevant in
determining that the deputy had probable cause to arrest Howes.
¶33 Moreover, three people told the deputy that Howes
smelled of intoxicants: (1) an individual at the scene of the
accident; (2) one of the EMTs who rode in the ambulance with
Howes; and (3) a nurse at the hospital. Taken together with the
vehicle accident, these facts were sufficient to provide the
deputy with probable cause to arrest Howes for operating a
vehicle with a prohibited alcohol concentration.
¶34 We note that probable cause in this case developed
over a period of time. At the accident scene, one bystander
mentioned that Howes may have smelled of intoxicants. While on
his way to the hospital, the deputy learned that Howes' PAC
threshold had been lowered to 0.02 percent because of his prior
convictions for OWI/PAC. Then, at the hospital, the deputy
spoke with EMT personnel, one of whom said that Howes smelled of
intoxicants and later he spoke with a nurse who also said that
Howes smelled of intoxicants. At that point, the deputy
reasonably believed that he had probable cause to conclude that
Howes had operated his motorcycle with a prohibited alcohol
concentration of 0.02 percent. He then placed Howes under
arrest. We agree that the deputy had probable cause to believe
that Howes had violated Wis. Stat. § 346.63(1)(b) under the
provisions of Wis. Stat. § 340.01(46m)(c).
15
No. 2014AP1870-CR
D. Exigent Circumstances
¶35 We next examine whether the warrantless blood draw was
justified by exigent circumstances. To determine if a
warrantless blood draw was permissible under the Fourth
Amendment, we look at the totality of the circumstances and
engage in a "careful case-by-case assessment of exigency."
McNeely, 133 S. Ct. at 1561.
¶36 "Like our analysis of probable cause, the test for
determining the existence of exigent circumstances is an
objective one." Tullberg, 359 Wis. 2d 421, ¶41 (quoting
Robinson, 327 Wis. 2d 302, ¶30). It follows that we give no
weight to the subjective belief of an officer.9 See United
States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000)
(reasoning "a police officer's subjective belief that exigent
circumstances exist is insufficient to make a warrantless
search. Instead, as is normally the case for Fourth Amendment
inquiries, the test is objective . . . ."). Accordingly, we
independently examine the facts known to the officer at the time
of the warrantless search.
¶37 An officer is justified in conducting a warrantless
search to prevent the destruction of evidence. And, "[e]vidence
of a crime is destroyed as alcohol is eliminated from the
bloodstream of a drunken driver." Tullberg, 359 Wis. 2d 421,
¶42. While the natural dissipation of alcohol is not, under all
9
Accordingly, the deputy's testimony that he had time to
obtain a warrant in this case is irrelevant to our analysis.
16
No. 2014AP1870-CR
circumstances, an exigent circumstance sufficient to allow an
officer to conduct a warrantless blood draw, there are
situations in which the totality of the circumstances would
justify such a search. "[A] warrantless blood draw [need not]
always require a 'now or never' situation in order to be
justified by exigent circumstances. Rather, exigent
circumstances justify a warrantless blood draw if delaying the
blood draw would 'significantly undermin[e] [its] efficacy.'"
Id., ¶50 (quoting McNeely, 133 S. Ct. at 1561); cf. State v.
Parisi, 2016 WI 10, ¶40, 367 Wis. 2d 1, 875 N.W.2d 619 ("Under
the circumstances, Officer Fenhouse might reasonably have feared
that if he attempted to obtain a warrant before drawing Parisi's
blood, Parisi's condition could again lapse, causing Officer
Fenhouse to miss his window of opportunity.").
¶38 The United States Supreme Court's decision in
Schmerber v. California, 384 U.S. 757 (1966), illustrates a
circumstance in which a warrantless blood draw in the context of
a drunk-driving offense is reasonable. In Schmerber, an
individual was "arrested at a hospital while receiving treatment
for injuries suffered in an accident involving the automobile
that he had apparently been driving." Id. at 758. Without
obtaining a warrant, the officer instructed a physician at the
hospital to draw the defendant's blood. Id. "The chemical
analysis of this sample revealed a percent by weight of alcohol
in his blood at the time of the offense which indicated
intoxication, and the report of this analysis was admitted in
evidence at the trial." Id. at 759. The defendant objected to
17
No. 2014AP1870-CR
the admission of the report and contended, in part, that these
results "should be excluded from evidence as the product of an
unlawful search and seizure in violation of the Fourth and
Fourteenth Amendments." Id. at 766.
¶39 The United States Supreme Court rejected the
defendant's contention that the warrantless blood draw was
unreasonable and concluded that the officer's search was
justified by exigent circumstances. Id. at 770. The Court, in
part, premised its decision on the defendant's injuries that had
delayed the officer's ability to secure a blood draw from the
defendant. Specifically, the Court reasoned:
We are told that the percentage of alcohol in the
blood begins to diminish shortly after drinking stops,
as the body functions to eliminate it from the system.
Particularly in a case such as this, where time had to
be taken to bring the accused to a hospital and to
investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant.
Given these special facts, we conclude that the
attempt to secure evidence of blood-alcohol content in
this case was an appropriate incident to petitioner's
arrest.
Id. at 770-71. Consequently, the Court surmised that "[t]he
officer . . . might reasonably have believed that he was
confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened the
destruction of evidence." Id. (internal quotation marks
omitted).
¶40 Following Schmerber, the Supreme Court in McNeely
reaffirmed the principle that dissipation of alcohol from the
blood stream may lead to the destruction of evidence, and
18
No. 2014AP1870-CR
therefore constitute an exigent circumstance sufficient to
justify a warrantless blood draw. McNeely, 133 S. Ct. at 1560(reasoning, "our analysis in Schmerber fits comfortably within
our case law applying the exigent circumstances exception.").
The Court clarified that its decision in Schmerber was not
predicated solely on the natural dissipation of alcohol from the
bloodstream; rather, there were "special facts" that made the
blood draw reasonable under the totality of circumstances
present in Schmerber. Id. These "special facts" were that the
defendant was injured and in the hospital, and that the officer
had to investigate the scene of the accident. The Court
reasoned,
Regardless of the exact elimination rate, it is
sufficient for our purposes to note that because an
individual's alcohol level gradually declines soon
after he stops drinking, a significant delay in
testing will negatively affect the probative value of
the results. This fact was essential to our holding
in Schmerber, as we recognized that, under the
circumstances, further delay in order to secure a
warrant after the time spent investigating the scene
of the accident and transporting the injured suspect
to the hospital to receive treatment would have
threatened the destruction of evidence.
Id. at 1560-61. These facts made the officer's need to draw
blood more urgent and, given this urgency, the officer's actions
were justified under the exigent circumstances doctrine. Id. at
1560 ("We added that '[p]articularly in a case such as this,
where time had to be taken to bring the accused to a hospital
and to investigate the scene of the accident, there was no time
19
No. 2014AP1870-CR
to seek out a magistrate and secure a warrant.'" (quoting
Schmerber, 384 U.S. at 770-71).
¶41 Moreover, we note that our decision is consistent with
the Supreme Court's narrow holding in McNeely that dissipation
of alcohol from the bloodstream, standing alone, does not always
constitute an exigent circumstance. The Supreme Court in
McNeely did not simultaneously create that which it sought to
eradicate. Stated otherwise, McNeely did not create a per se
rule that a warrantless blood draw based on the natural
dissipation of alcohol from the blood stream is never
reasonable. Id. at 1568 ("The relevant factors in determining
whether a warrantless search is reasonable, including the
practical problems of obtaining a warrant within a timeframe
that still preserves the opportunity to obtain reliable
evidence, will no doubt vary depending upon the circumstances in
the case.").
¶42 Instead, the Court in McNeely validated the foundation
of its decision in Schmerber; specifically, dissipation of
alcohol from the bloodstream may justify an officer's
warrantless blood draw. The Court in McNeely went so far as to
recognize that delay in obtaining a warrant, even without the
presence of extraneous factors, may justify a warrantless blood
draw. The Court stated, "an individual's alcohol level
gradually declines soon after he stops drinking, a significant
delay in testing will negatively affect the probative value of
the results." Id. at 1561; see also id. at 1568 ("No doubt,
given the large number of arrests for this offense in different
20
No. 2014AP1870-CR
jurisdictions nationwide, cases will arise when anticipated
delays in obtaining a warrant will justify a blood test without
judicial authorization, for in every case the law must be
concerned that evidence is being destroyed.").
¶43 As is evident from the Court's analysis in Schmerber
and McNeely, certain facts are particularly relevant to an
exigent circumstances analysis in drunk-driving cases. Whether
an officer was delayed in obtaining a blood draw due to the
defendant's medical condition is one such fact. Additionally,
whether the officer was delayed because time had to be taken to
investigate the scene of the accident is also highly relevant.
See Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)
("On the specific facts of [Schmerber], where time had already
been lost taking the driver to the hospital and investigating
the accident, the Court found no Fourth Amendment violation even
though the warrantless blood draw took place over the driver's
objection.").
¶44 The Minnesota Supreme Court, relying on these factors,
concluded that exigent circumstances justified a search under
circumstances similar to that of Schmerber. See Minnesota v.
Stavish, 868 N.W.2d 670, 676-77 (Minn. 2015). In Stavish, the
Minnesota Supreme Court concluded that, under the totality of
circumstances, a warrantless blood draw of a hospitalized
individual was justified by exigent circumstances. The Court
reasoned, "Stavish's medical condition and need for treatment
rendered his future availability for a blood draw uncertain.
[The officer] did not know how long Stavish was likely to remain
21
No. 2014AP1870-CR
at the same hospital or whether further medical care would
preclude obtaining a sample even if Stavish stayed at the same
hospital." Id. at 678. As a result, "it was objectively
reasonable for [the officer] to conclude that he was faced with
an emergency in which the delay necessary to obtain a warrant
threatened the destruction of evidence." Id.
¶45 The circumstances of a critically injured driver who
needed immediate medical care that justified the warrantless
blood draw in Schmerber and Stavish are present in the case at
hand. And in addition, Howes' prohibited alcohol concentration
threshold of 0.02 percent increased the need for a prompt blood
draw. Dissipation or dilution of alcohol in his bloodstream due
to the passage of time and medical treatments threatened the
State's ability to prove the crime for which he was arrested.
This is so because "[a]lcohol dissipates from the bloodstream at
a rate of 0.01 percent to 0.025 percent per hour." McNeely, 133
S. Ct. at 1570-71 (Roberts, C.J., concurring in part and
dissenting in part) (citing Richard Stripp, Forensic and
Clinical Issues in Alcohol Analysis, in Forensic Chemistry
Handbook 440 (Lawrence Kobilinsky ed., 2012)). If Howes
violated his restricted PAC with a blood alcohol concentration
of 0.02 percent, it would take approximately an hour for Howes'
blood alcohol level to go to 0.00 percent. This is roughly the
amount of time that elapsed between Howes' accident and the time
in which the deputy first had probable cause necessary to obtain
a warrant. As each minute passed, the likelihood that Howes'
blood alcohol level would diminish to 0.00 percent increased
22
No. 2014AP1870-CR
significantly. At 0.00 percent, it would be impossible to
calculate what his blood alcohol level was at the time of the
accident.
¶46 In addition, similar to the officer in Schmerber, the
deputy's responsibilities at the accident scene led to a
significant delay in the ability of the deputy to obtain a blood
draw. For example, he was required to secure evidence relating
to the accident and ensure the safety of those traveling on
roads through the scene of the accident. The investigation of
the accident took time. During this time, reliable evidence of
Howes' blood alcohol concentration was being destroyed by the
passage of time and treatment at the hospital.10
¶47 Furthermore, akin to the defendant in Schmerber, Howes
was in critical condition. The severity of Howes' condition
made the deputy's ability to obtain a blood draw in the future
uncertain. This uncertainty was exacerbated because at least
one hour already had passed since the accident and the deputy
had no knowledge about the time at which Howes stopped drinking.
¶48 Howes was unconscious, and it was unknown whether he
had suffered brain damage. Importantly, a physician indicated
10
Howes was in critical condition that required additional
testing, intubation to support his respiration. He had been
given medication resulting in "heavy sedation," and because he
was unconscious, he must have received this medication
intravenously.
23
No. 2014AP1870-CR
that Howes would need a CT scan.11 The deputy could reasonably
have concluded that waiting for a CT scan before obtaining a
blood draw would "significantly undermin[e] the efficacy" of the
blood analysis to prove Howes violated his PAC threshold of 0.02
percent. See Tullberg, 359 Wis. 2d 421, ¶50 n.26 (quoting
McNeely, 133 S. Ct. at 1561).
¶49 Additionally, as we have explained, the deputy did not
have probable cause to arrest Howes until he arrived at the
hospital, talked with EMTs and talked with the nurse who told
him that she also smelled alcohol. Accordingly, the present
case is not one in which the officer could have obtained a
warrant on the way to the hospital because he did not have
probable cause to obtain a warrant then. Applying for a warrant
after his conversations with Howes' care-givers would have led
to additional delay and the further dissipation of alcohol from
Howes' bloodstream. See id., 359 Wis. 2d 421, ¶48 n.25 ("We
note that Deputy Hoffman could not have had other officers
assist him in obtaining a warrant while he investigated the
accident because he did not have probable cause to have
Tullberg's blood drawn until immediately before it was drawn.").
¶50 Accordingly, we conclude that the warrantless blood
draw from Howes was permissible under the Fourth Amendment of
11
The deputy asked hospital staff to conduct a blood draw,
but they were unable to draw Howes' blood until roughly an hour
after the deputy's request. This passage of time is further
evidence that the deputy needed to request a blood draw
immediately.
24
No. 2014AP1870-CR
the United States Constitution and Article I, Section 11 of the
Wisconsin Constitution because under the totality of
circumstances the exigent circumstance of destruction of
evidence existed.
III. CONCLUSION
¶51 We conclude that the circuit court correctly
determined that the deputy had probable cause to arrest Howes
for operating a vehicle with a PAC, and that Howes was arrested
prior to obtaining a blood sample. Moreover, based on the
totality of circumstances herein, the deputy's warrantless
search was permissible under the Fourth Amendment of the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution under the exigent circumstances doctrine that
relates to the risk of destruction of evidence. Stated more
fully, under the totality of circumstances presented herein,
which included a seriously injured, unconscious person, who was
being subjected to medical treatments for his injuries and who
had 0.02 percent as his PAC threshold, a reasonable officer
could have concluded that further delay in drawing Howes' blood
would have led to the destruction of evidence through the
dissipation and dilution of alcohol in Howes' bloodstream.
Therefore, we reverse the order of the circuit court and remand
for further proceedings.
By the Court.—The order of the circuit court is reversed
and the cause is remanded for further proceedings consistent
with this opinion.
25
No. 2014AP1870-CR.mjg
¶52 MICHAEL J. GABLEMAN, J. (concurring in the
judgment). I agree that the blood draw here was a permissible
warrantless search under the Fourth Amendment, and I concur in
the mandate of the court. However, rather than addressing this
case as one of exigent circumstances, I would decide the
question certified to us by the court of appeals: whether
provisions in Wisconsin's implied consent law authorizing a
warrantless blood draw from an unconscious driver based on the
driver's implied consent are unconstitutional under the Fourth
Amendment to the United States Constitution.
¶53 Wisconsin's implied consent law, Wis. Stat. § 343.305,
provides notice to all drivers that when they operate a motor
vehicle in this state, they are deemed to have consented to
blood, breath, or urine testing for the presence of alcohol or
controlled substances, § 343.305(2),1 if and when such testing is
1
Wis. Stat. § 343.305(2) provides, in full:
IMPLIED CONSENT. Any person who is on duty time with
respect to a commercial motor vehicle or drives or
operates a motor vehicle upon the public highways of
this state, or in those areas enumerated in s. 346.61,
is deemed to have given consent to one or more tests
of his or her breath, blood or urine, for the purpose
of determining the presence or quantity in his or her
blood or breath, of alcohol, controlled substances,
controlled substance analogs or other drugs, or any
combination of alcohol, controlled substances,
controlled substance analogs and other drugs, when
requested to do so by a law enforcement officer under
sub. (3)(a) or (am) or when required to do so under
sub. (3)(ar) or (b). Any such tests shall be
administered upon the request of a law enforcement
officer. The law enforcement agency by which the
(continued)
1
No. 2014AP1870-CR.mjg
required by a law enforcement officer under certain
circumstances, including when the driver is arrested for one of
certain enumerated intoxicated-driving offenses, § 343.305(3).2
It further provides that a driver "who is unconscious or
otherwise not capable of withdrawing consent is presumed not to
have withdrawn consent" and a test may therefore be
administered. See § 343.305(3)(ar)-(b).3
officer is employed shall be prepared to administer,
either at its agency or any other agency or facility,
2 of the 3 tests under sub. (3)(a), (am), or (ar), and
may designate which of the tests shall be administered
first.
2
Wis. Stat. § 343.305(3)(a) provides, in relevant part:
Upon arrest of a person for violation of s. 346.63(1),
(2m) or (5) or a local ordinance in conformity
therewith, or for a violation of s. 346.63(2) or (6)
or 940.25, or s. 940.09 where the offense involved the
use of a vehicle, or upon arrest subsequent to a
refusal under par. (ar), a law enforcement officer may
request the person to provide one or more samples of
his or her breath, blood or urine for the purpose
specified under sub. (2).
Subsection (3)(am) includes similar provisions that apply when
the "officer detects any presence of alcohol . . . on a person
driving or operating or on duty time with respect to a
commercial motor vehicle or has reason to believe the person is
violating or has violated s. 346.63(7)."
3
Wis. Stat. § 343.305(3)(ar)1. applies if "a person is the
operator of a vehicle that is involved in an accident that
causes substantial bodily harm, as defined in s. 939.22(38), to
any person, and a law enforcement officer detects any presence
of alcohol, a controlled substance, a controlled substance
analog or other drug, or a combination thereof." Subsection
(3)(ar)2. applies if "a person is the operator of a vehicle that
is involved in an accident that causes the death of or great
bodily harm to any person and the law enforcement officer has
reason to believe that the person violated any state or local
traffic law." Both provisions provide that a "person who is
(continued)
2
No. 2014AP1870-CR.mjg
¶54 In this case, a warrantless blood draw was taken from
the defendant, David W. Howes, while he was unconscious. Howes
had been involved in a motorcycle accident with a deer, and he
was found injured, unconscious, and smelling of alcohol. Howes
was still unconscious when a sheriff's deputy later arrested him
at the hospital on suspicion of drunk driving. Following the
procedures set forth in the implied consent law, the deputy
asked the hospital to take a blood sample from Howes,4 and the
test results revealed the presence of a prohibited alcohol
concentration. Howes was charged with operating a motor vehicle
while intoxicated, in violation of Wis. Stat. § 346.63(1)(a),
unconscious or otherwise not capable of withdrawing consent is
presumed not to have withdrawn consent under this subdivision
and one or more samples specified in par. (a) or (am) may be
administered to the person." Wis. Stat. § 343.305(3)(ar)1.-2.
Additionally, Wis. Stat. § 343.305(3)(b) provides, in full:
A person who is unconscious or otherwise not capable
of withdrawing consent is presumed not to have
withdrawn consent under this subsection, and if a law
enforcement officer has probable cause to believe that
the person has violated s. 346.63(1), (2m) or (5) or a
local ordinance in conformity therewith, or
s. 346.63(2) or (6) or 940.25, or s. 940.09 where the
offense involved the use of a vehicle, or detects any
presence of alcohol, controlled substance, controlled
substance analog or other drug, or a combination
thereof, on a person driving or operating or on duty
time with respect to a commercial motor vehicle or has
reason to believe the person has violated
s. 346.63(7), one or more samples specified in
par. (a) or (am) may be administered to the person.
4
This situation was governed by Wis. Stat. § 343.305(3)(b),
because the deputy had probable cause to believe Howes was
guilty of operating a motor vehicle with a prohibited alcohol
concentration, in violation of Wis. Stat. § 346.63(1)(b).
3
No. 2014AP1870-CR.mjg
and operating a motor vehicle with a prohibited alcohol
concentration, in violation of § 346.63(1)(b).
¶55 The circuit court suppressed the test results, ruling
that subsections (3)(ar) and (3)(b) of the implied consent law
are facially unconstitutional under the Fourth Amendment to the
extent they authorize warrantless testing of unconscious drivers
in the absence of exigent circumstances.5 The circuit court
rejected the argument that Howes consented, concluding that
"[t]here can be no consent in the constitutional sense where
somebody is unconscious and incapable of giving consent." The
State appealed, and the court of appeals certified the case to
this court pursuant to Wis. Stat. § (Rule) 809.61.
¶56 On appeal, Howes takes the position that the circuit
court was correct to find the unconscious-driver provisions
facially unconstitutional.6 Howes argues that, absent an
established exception to the Fourth Amendment's warrant
requirement, officers must obtain a warrant before ordering a
5
I will refer to these provisions collectively as the
"unconscious-driver provisions" of the implied consent law.
6
This case also presents an as-applied challenge to the
statute, but Howes does not develop any distinct argument to
support his as-applied challenge. Rather, he states that his
challenge is "as-applied only insofar as his Fourth Amendment
rights were personally violated by the State's conduct under the
general auspices of the provisions in question when the blood
draw was performed." Howes "does not believe that any variation
in the circumstances (except for the crucial one——
incapacitation, which brings him within the purview of the
provision in the first place) would materially affect the
analysis." Therefore, if the unconscious-driver provisions can
be constitutionally applied, Howes does not dispute that they
were constitutionally applied to him.
4
No. 2014AP1870-CR.mjg
blood test of a driver who is unconscious or otherwise not
capable of withdrawing consent. Howes further argues that the
statutory provisions authorizing blood tests of such drivers
based on their implied consent create an unreasonable per se
exception to the warrant requirement.
¶57 I conclude that Howes has not met his burden of
proving beyond a reasonable doubt that the unconscious-driver
provisions of the implied consent law are unconstitutional.
Voluntary consent to testing may be implied from the conduct of
driving with notice of the conditions of Wisconsin's implied
consent law, and such consent continues unless it is revoked.
Therefore, I conclude that the circuit court erred in striking
down the statute as facially unconstitutional and in suppressing
the results of the blood test.
¶58 I begin with the applicable standard of review and
with a general overview of Wisconsin's implied consent law,
focusing on the challenged unconscious-driver provisions. I
then apply the principles of the Fourth Amendment to the
unconscious-driver provisions in light of Howes' argument that
they are facially unconstitutional.
I. STANDARD OF REVIEW
¶59 Whether a statute is constitutional is a question of
law that this court reviews de novo. Dane Cty. DHS v. P.P.,
2005 WI 32, ¶14, 279 Wis. 2d 169, 694 N.W.2d 344. Statutes are
presumed to be constitutional. Aicher ex rel. LaBarge v. Wis.
Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613
N.W.2d 849. "The court indulges every presumption to sustain
5
No. 2014AP1870-CR.mjg
the law if at all possible, and if any doubt exists about a
statute's constitutionality, we must resolve that doubt in favor
of constitutionality." Id. The burden is on the challenger to
"prove that the statute is unconstitutional beyond a reasonable
doubt." State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665
N.W.2d 328. Here, because Howes presents his argument as a
facial challenge to the unconscious-driver provisions, the
burden is on him to prove beyond a reasonable doubt that the
statute "cannot be constitutionally enforced under any
circumstances." See Society Ins. v. LIRC, 2010 WI 68, ¶26, 326
Wis. 2d 444, 786 N.W.2d 385 (citing State v. Wood, 2010 WI 17,
¶13, 323 Wis. 2d 321, 780 N.W.2d 63).
II. OVERVIEW OF WISCONSIN'S IMPLIED CONSENT LAW
¶60 Wisconsin's implied consent law was first enacted in
1969 and is codified at Wis. Stat. § 343.305. "The purpose
behind the implied consent law is to combat drunk driving by
'facilit[ating] the gathering of evidence against drunk
drivers.'" State v. Piddington, 2001 WI 24, ¶17, 241
Wis. 2d 754, 623 N.W.2d 528 (quoting State v. Neitzel, 95
Wis. 2d 191, 203, 289 N.W.2d 828 (1980)). Like every one of our
forty-nine sister states, Wisconsin has chosen to combat the
problem of drunken and impaired driving by enacting an implied
consent law, such that consenting to testing has long been "a
condition of the privilege of operating a motor vehicle upon
state highways." State v. Zielke, 137 Wis. 2d 39, 48, 403
N.W.2d 427 (1987).
6
No. 2014AP1870-CR.mjg
¶61 The implied consent law provides that a driver is
deemed to have consented, in certain circumstances, to testing
of his or her blood, breath, or urine for the presence of
alcohol or other controlled substances. Wis. Stat.
§ 343.305(2). Specifically, it provides that anyone who "drives
or operates a motor vehicle upon the public highways of this
state" is "deemed" to have consented to testing when required by
a law enforcement officer under the specific circumstances
enumerated in the statute. Id.¶62 Although the statute acknowledges that a person may
withdraw consent and refuse to submit to testing, a driver has
no statutory or constitutional right to refuse without
consequences. See State v. Crandall, 133 Wis. 2d 251, 255-56,
394 N.W.2d 905 (1986). Nor does the statute provide that
officers must ask drivers whether they want to refuse testing.
"This statutory scheme does not contemplate a choice, but rather
establishes that a defendant will suffer the consequences of
revocation should he refuse to submit to the test after having
given his implied consent to do so." Milwaukee Cty. v.
Proegler, 95 Wis. 2d 614, 624, 291 N.W.2d 608 (Ct. App. 1980).
¶63 The occasions on which drivers are deemed to have
consented to testing are limited to particular circumstances
where the legislature has decided that such testing is necessary
to combat intoxicated driving and to protect public safety. See
Piddington, 241 Wis. 2d 754, ¶42 ("The implied consent law is
based upon the legitimate government interest of protecting the
public welfare, to wit, removing drunk drivers from the road."
7
No. 2014AP1870-CR.mjg
(citing Proegler, 95 Wis. 2d at 631)). For example, a driver is
deemed to have consented to testing upon arrest, but only if the
offense for which the driver is arrested is one of certain
enumerated intoxicated-driving offenses under Wis. Stat.
§ 346.63 or certain other offenses involving injury or homicide
by intoxicated use of a vehicle. See Wis. Stat.
§ 343.305(3)(a). If none of the statutory circumstances exist,
testing pursuant to the implied consent law is not permitted,
though officers may still procure evidence through "any other
lawful means." § 343.305(3)(c).
III. THE UNCONSCIOUS-DRIVER PROVISIONS
¶64 The unconscious-driver provisions of the implied
consent law provide that, under certain circumstances, a driver
"who is unconscious or otherwise not capable of withdrawing
consent is presumed not to have withdrawn consent." See Wis.
Stat. § 343.305(3)(ar)-(b). Provided the other relevant
statutory conditions are met, law enforcement may presume that
an unconscious driver consents to the tests that are set forth
in the statute, unless consent is revoked. The statute contains
no requirement that any driver, whether conscious or not, must
expressly consent to testing; consent is deemed to have been
given when the person voluntarily chose to drive on Wisconsin
highways. See § 343.305(2).
¶65 Indeed, the informational statement that officers must
read to a driver before administering the test is a notice of
the consequences of refusal, not a "request" for consent. See
Wis. Stat. § 343.305(4). The purpose of this notice is to
8
No. 2014AP1870-CR.mjg
advise drivers about the nature of their implied consent, not
necessarily to provide a meaningful opportunity to decide
whether to withdraw their consent. See Piddington, 241
Wis. 2d 754, ¶¶17, 20, 55 (holding that an analysis of the
proper administration of the notice focuses on the objectively
reasonable conduct of the officer, not "[w]hether the accused
driver has actually comprehended the warnings"). "The entire
tenor of the implied consent law is . . . that consent has
already been given . . . ." Neitzel, 95 Wis. 2d at 203.
¶66 To summarize, the unconscious-driver provisions of the
implied consent law put every driver on notice that, in the
event he or she becomes unconscious and, for example, an officer
has probable cause to believe the driver is guilty of a drunk-
driving offense, the driver's previously given consent would
remain unrevoked. I turn now to the question of whether Howes
has met his burden to prove beyond a reasonable doubt that these
provisions are unconstitutional.
IV. APPLICABLE FOURTH AMENDMENT PRINCIPLES
¶67 The Fourth Amendment to the United States Constitution
guarantees the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures." U.S. Const. amend. IV. Courts will
presume that a search was unreasonable if the officers did not
have a warrant, but "[i]t is well established that a search is
reasonable when the subject consents." Birchfield v. N. Dakota,
136 S. Ct. 2160, 2185 (2016). Specifically in the context of
state implied consent laws, the Supreme Court has emphasized
9
No. 2014AP1870-CR.mjg
that "consent to a search need not be express but may be fairly
inferred from context." Id. This court has likewise recognized
that "[c]onsent to search need not be given verbally; it may be
in the form of words, gesture, or conduct." State v. Phillips,
218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998).
A. Consent May Be Implied By Conduct
¶68 The principle of consent by conduct is neither new nor
infrequently applied. In his treatise on the Fourth Amendment,
Professor Wayne LaFave provides a number of examples in which
"it is said that consent is 'implied' because it is found to
exist merely because of the person's conduct in engaging in a
certain activity." 4 Wayne R. LaFave, Search and Seizure
§ 8.2(l), at 162-63 (5th ed. 2012). For example, "a warrantless
search of a person seeking to enter a military base may be
deemed reasonable based on the implied consent of the person
searched," Morgan v. United States, 323 F.3d 776, 778 (9th Cir.
2003), and consent "may be implied from [the] act of driving
past the guard shack and onto [the base] and imputed from the
posted notice indicating that entry onto [the base] constituted
consent to a search," State v. Torres, 262 P.3d 1006, 1022
(Haw. 2011). Another analogous situation concerns a "business
owner in a highly regulated or licensed industry" who "in effect
consents to the restrictions put in place by the government."
10
No. 2014AP1870-CR.mjg
United States v. Hamad, 809 F.3d 898, 905 (7th Cir. 2016).7
Similarly, some courts have justified airport screening searches
based on implied consent, reasoning that "[t]he signs in the
terminal gave [passengers] fair notice that if in the course of
the total screening process a physical inspection of [their]
hand luggage should be considered necessary . . . [they] could
be required to submit to it . . . ." United States v. DeAngelo,
584 F.2d 46, 47-48 (4th Cir. 1978); see State v. Hanson, 34 P.3d
1, 4-7 (Haw. 2001) (collecting cases).8
B. The Limits of Implying Consent By Conduct
¶69 Of course, there must be a limit to the scope of the
consent that may be implied by a person's conduct. See
Birchfield, 136 S. Ct. at 2185. Consent "cannot be said to
exist merely because a person (a) knows that an official
intrusion into his privacy is contemplated if he does a certain
thing, and then (b) proceeds to do that thing." LaFave, supra,
at 164-65 (emphasis added). A reviewing court must also
7
Although the cases involving warrantless inspections of
highly regulated businesses do not rely on consent as the basis
for the reasonableness of such searches, the rationale in those
cases is analogous in that the inspections are reasonable in
part because a business owner chooses to enter the regulated
field and the government regulations supply notice of the scope
and frequency of inspections. See United States v. Biswell, 406
U.S. 311, 316 (1972).
8
Some more recent decisions hold that consent is not
required at all in the airport screening context, because such
searches are reasonable under the administrative search
doctrine. See, e.g., United States v. Aukai, 497 F.3d 955, 960
(9th Cir. 2007); United States v. Hartwell, 436 F.3d 174, 178-81
(3d Cir. 2006).
11
No. 2014AP1870-CR.mjg
consider the scope and the voluntariness of the individuals'
consent under the particular implied consent scheme presented.
See, e.g., Birchfield, 136 S. Ct. at 2186 (remanding to state
court to revisit voluntariness of consent, in light of holding
that "motorists cannot be deemed to have consented to submit to
a blood test on pain of committing a criminal offense").
¶70 A federal case out of the Seventh Circuit is helpful
in illustrating how both the scope and the voluntary nature of
the consent implied by conduct are evaluated by what is
reasonable under the particular circumstances. Where a parking
lot for government employees had signs posted stating that all
vehicles were "subject to search," the mere conduct of parking
in the lot did not imply consent to a sudden, unprecedented
search of all vehicles because the vague signs gave no reason to
expect such a singular suspicionless search. McGann v. Ne. Ill.
Reg'l Commuter R.R. Corp., 8 F.3d 1174, 1176, 1182-83 (7th Cir.
1993); see also State v. Iaccarino, 767 So.2d 470, 477 (Fla.
Dist. Ct. App. 2000) (holding that implied consent to searches
at festival entrance did not extend to intrusive drug searches,
because a "reasonable person would conclude from the signs
posted at the gate that the search was limited to cans, bottles,
and the contents of coolers or backpacks, . . . [not] wallets,
pockets, and underwear").
V. APPLICATION
¶71 I now apply these principles to the unconscious-driver
provisions of Wisconsin's implied consent law, in light of
Howes' arguments. Howes argues that, under the Supreme Court's
12
No. 2014AP1870-CR.mjg
recent decisions in Missouri v. McNeely, 133 S. Ct. 1552 (2013),
and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),
authorizing warrantless blood tests of unconscious drivers based
solely on their implied consent creates an unreasonable per se
exception to the warrant requirement. I therefore address
McNeely and Birchfield to explain why they do not support the
result that Howes suggests. I then examine the reasonableness
of the law's presumption that a person has impliedly consented
to testing while unconscious, and I conclude that it does not
violate the Fourth Amendment.
A. McNeely and Birchfield
¶72 In McNeely, the Supreme Court held that the natural
dissipation of alcohol in the bloodstream does not constitute a
per se exigency that always justifies a warrantless blood draw.
McNeely, 133 S. Ct. at 1563. Although Howes points to broad
language in McNeely that emphasizes the intrusive nature of a
blood draw and the need for an examination of the totality of
the circumstances, the holding in McNeely is limited only to the
question of exigent circumstances. The McNeely Court "pointedly
did not address" any other exceptions to the warrant
requirement. Birchfield, 136 S. Ct. at 2174. Here, the State
does not ground its argument in exigent circumstances, but
rather bases its case entirely upon the consent exception to the
warrant requirement. So, put simply, McNeely is inapplicable to
the question before us, that is, whether the unconscious-driver
provisions of Wisconsin's implied consent law are
unconstitutional.
13
No. 2014AP1870-CR.mjg
¶73 With Birchfield, we get closer to the mark. In
Birchfield, the Supreme Court held, inter alia, that it was
unreasonable to deem a driver "to have consented to submit to a
blood test on pain of committing a criminal offense."
Birchfield, 136 S. Ct. at 2186. But Wisconsin's implied consent
law does not threaten the criminal penalties that Birchfield
disapproved; instead, the result of refusal is that the officer
shall "prepare a notice of intent to revoke, by court order
under sub. (10), the person's operating privilege." Wis. Stat.
§ 343.305(9)(a). A court-ordered revocation under § 343.305(10)
is not a criminal penalty.9 Therefore, nothing in Birchfield
undermines the longstanding provisions of Wisconsin's implied
consent law.
¶74 On the contrary, the Supreme Court stated in
Birchfield that "[i]t is well established that a search is
reasonable when the subject consents, and that sometimes consent
to a search need not be express but may be fairly inferred from
context." Birchfield, 136 S. Ct. at 2185 (citations omitted).
9
A revocation under Wis. Stat. § 343.305(10) has other
consequences, but they are not criminal penalties for the
withdrawal of consent. For example, Wis. Stat. § 343.307(1)(f)
provides that a revocation under § 343.305(10) is counted in
determining the penalty for operating a motor vehicle while
intoxicated in violation of Wis. Stat. § 346.63(1). But that
penalty is imposed only on the subsequent criminal offense of
drunk driving, not on the earlier withdrawal of consent to
testing under the implied consent law. Unlike the North Dakota
law at issue in Birchfield, which made the refusal itself a
misdemeanor in the first instance, see Birchfield, 136 S. Ct. at
2170-71, a person's withdrawal of consent to a blood test under
Wisconsin's implied consent law is not a criminal offense.
14
No. 2014AP1870-CR.mjg
The Court continued, "Our prior opinions have referred
approvingly to the general concept of implied-consent laws that
impose civil penalties and evidentiary consequences on motorists
who refuse to comply. Petitioners do not question the
constitutionality of those laws, and nothing we say here should
be read to cast doubt on them." Id. (emphasis added) (citations
omitted). Far from disapproving the concept of consent by
conduct within the context of a driver's implied consent, the
Court expressly endorsed the general validity of state implied
consent laws that infer motorists' consent to testing from the
conduct of driving.
B. Drivers in Wisconsin Consent to Testing By Choosing to Drive
With Notice of Their Responsibilities
¶75 Howes argues that it is unreasonable to presume that a
driver has consented to testing merely by the conduct of driving
on state highways. However, the understanding that a driver's
voluntary consent to testing of blood, breath, or urine is
validly implied by the conduct of driving has been consistently
recognized in this court's cases. See, e.g., Zielke, 137
Wis. 2d at 48 ("The consent is implied as a condition of the
privilege of operating a motor vehicle upon state highways.");
Neitzel, 95 Wis. 2d at 203 ("The entire tenor of the implied
consent law is . . . that consent has already been
given . . . ."). In Neitzel, we concluded that an arrestee does
not have a statutory right to consult with counsel about whether
to refuse testing, because "a lawyer cannot induce his client to
recant a consent previously given knowingly and voluntarily."
15
No. 2014AP1870-CR.mjg
Neitzel, 95 Wis. 2d at 201 (emphasis added). At the time the
defendant chose to drive, "he was fully cognizant of his rights
and was deemed to know that, in the event he was later arrested
for drunken driving, he had consented . . . to chemical testing
under the circumstances envisaged by the statute." Id. Put
simply, consent to testing had already been given, and it
remained valid until withdrawn.10
¶76 Inferring consent to testing from the conduct of
driving appears essential to the validity of the warrantless
blood test that occurred in State v. Disch, 129 Wis. 2d 225, 385
N.W.2d 140 (1986), where this court upheld a blood test of a
driver who was "in a stupor" and "did not seem able to
concentrate." Id. at 236. The only basis for this ruling was
the same statutory language that Howes now challenges. See id.
at 236-38. Therefore, unless this court has had a sudden change
of heart unsignaled over the course of the past thirty years of
10
Howes argues that a recent court of appeals decision,
State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849
N.W.2d 867, stands for the contrary proposition. In Padley, the
court of appeals rejected "the State's incorrect view that . . .
'implied consent' alone can 'serve as a valid exception to the
warrant requirement.'" Id., ¶37. However, Padley did not cite
authority for its rejection of the validity of a driver's
implied consent as an exception to the warrant requirement, nor
was such a conclusion necessary to decide the case, because the
driver in Padley consented expressly. See id., ¶11. I reject
Padley's view as having no basis in law and as inconsistent with
the Supreme Court's analysis of a state implied consent law
under the principle that "consent to a search need not be
express but may be fairly inferred from context." Birchfield,
136 S. Ct. at 2185.
16
No. 2014AP1870-CR.mjg
its jurisprudence on the implied consent law, it would appear
that Howes should receive the same result that Disch received.
¶77 Wisconsin is not the only jurisdiction to recognize
that consent to testing is implied when a person operates a
motor vehicle and continues until it is revoked. The Idaho
Supreme Court recognizes that drivers "give their initial
consent to evidentiary testing by driving on Idaho roads
voluntarily," and such consent will "qualify as voluntary" so
long as the driver "continue[s] to give voluntary consent."
State v. Wulff, 337 P.3d 575, 582 (Idaho 2014). Applying this
rule to an apparently unconscious driver, Idaho's court of
appeals recognized the validity of the driver's implied consent
under the Fourth Amendment, because "[t]he fact that [the
driver] was allegedly unconscious when the officer read her the
advisory does not effectively operate as a withdrawal of her
consent." Bobeck v. Idaho Transp. Dept., 363 P.3d 861, 866-67
(Idaho Ct. App. 2015). Further, the court held that the
officers had no duty "to ensure comprehension of a person who is
under the influence to the point of being semi-conscious or
unconscious at times." Id. at 865.
¶78 I acknowledge that other courts have found that the
implied consent of an unconscious driver cannot justify a
warrantless blood draw. See, e.g., People v. Arredondo, 199
Cal. Rptr. 3d 563 (Cal. Ct. App. 2016), modified on denial of
reh'g (Mar. 24, 2016), review granted, 371 P.3d 240 (Cal. 2016);
Bailey v. State, 790 S.E.2d 98 (Ga. App. 2016); State v. Romano,
785 S.E.2d 168 (N.C. Ct. App. 2016), review granted, 794 S.E.2d
17No. 2014AP1870-CR.mjg
315 (N.C. 2016), review granted, writ granted, 794 S.E.2d 317(N.C. 2016); State v. Ruiz, ___ S.W.3d ___, 2015 WL 5626252(Tex. App. Aug. 27, 2015), vacated, No. PD-1362-15, 2017 WL
430291 (Tex. Crim. App. Feb. 1, 2017) (per curiam).
¶79 At first blush, this appears to be a significant list
of courts with holdings inapposite to that which I advocate
today. However, the holdings in those cases all assume that
McNeely (the exigent circumstances case) controls the outcome in
implied consent cases. See, e.g., Bailey, 790 S.E.2d at 104
("In light of McNeely . . . implied consent was insufficient to
satisfy the Fourth Amendment . . . ."). Both as a matter of
logic and in light of the relevant language in Birchfield
(decided after McNeely), I fail to see how that can be the case.
Because McNeely does not control as to the application of the
consent exception to the warrant requirement, I reach a
different conclusion than other jurisdictions do.
C. The Scope of Consent Is Reasonable
¶80 I conclude that the unconscious-driver provisions are
reasonable in light of the clarity and specificity of the notice
given and the strict statutory parameters for the occasion and
manner of testing.
¶81 First, the notice given in the statute is clear: a
test may be performed on a driver while he or she is
unconscious, Wis. Stat. § 343.305(3)(ar)-(b), and continuing
consent to testing is deemed to exist by virtue of the operation
of a motor vehicle, § 343.305(2). A driver is "deemed to know"
the conditions imposed by the implied consent law, Neitzel, 95
18
No. 2014AP1870-CR.mjg
Wis. 2d at 201, and the conditions in the unconscious-driver
provisions are unequivocal.
¶82 Second, the notice given is much more specific than
the vague, generalized notices rejected by the Seventh Circuit
in McGann and by the Florida District Court of Appeal in
Iaccarino. In those cases, generic "subject to search" notices
did not provide fair notice of the extensive searches actually
performed, and it was therefore unreasonable to deem individuals
to have consented to those searches. See McGann, 8 F.3d at
1176, 1183; Iaccarino, 767 So.2d at 477-80. But as the Florida
court suggested in Iaccarino, providing a clearer and more
specific notice would have been enough to establish consent.
Iaccarino, 767 So.2d at 480. Here, the statute explicitly
notifies all drivers that they will be deemed to have consented
to the tests (not to the choice of testing or revocation), in
particular circumstances specifically tailored to combating the
dangers of intoxicated driving. Unlike the parking lot in
McGann, where unwarned and unprecedented searches were held
unreasonable based on a vague notice, the State provides notice
through its statutes of its regularly performed tests, and
drivers have no reason to expect otherwise.
¶83 Further, tests may be performed on an unconscious
person only in specific situations. Testing may be performed if
an officer has probable cause to arrest the driver, but only if
the arrested offense is one of certain enumerated intoxicated-
driving offenses under Wis. Stat. § 346.63 or certain other
offenses involving injury or homicide by intoxicated use of a
19
No. 2014AP1870-CR.mjg
vehicle. See Wis. Stat. § 343.305(3)(b). But if the driver has
not been arrested, testing of an unconscious person is limited
to cases involving an accident causing bodily harm and either
the presence of alcohol or a violation of law.
§ 343.305(3)(ar)1.-2. Also, if the test is a blood test, it may
be administered "only by a physician, registered nurse, medical
technologist, physician assistant, phlebotomist, or other
medical professional who is authorized to draw blood, or person
acting under the direction of a physician." Wis. Stat.
§ 343.305(5)(b) (2015-16). These conditions circumscribe the
scope of the testing, and testing an unconscious person outside
of them requires a warrant, exigent circumstances, or "other
lawful means." § 343.305(3)(c).
¶84 In the final analysis, "[i]t is the motorist who has
voluntarily asserted his or her autonomy" in deciding to drive,
State v. Wintlend, 2002 WI App 314, ¶19, 258 Wis. 2d 875, 655
N.W.2d 745, and "voluntary consent to a blood draw is not
negated by the fact that consent was procured by informing a
suspect that the alternative is a penalty," Padley, 354
Wis. 2d 545, ¶72 (citing Vill. of Little Chute v. Walitalo, 2002
WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891). Howes exercised
his autonomy by electing to drive under the conditions all
drivers in Wisconsin accept, and he has not developed——much less
perfected——any argument as to why, if a driver's voluntary
consent to testing may be implied from the conduct of driving,
the blood test performed on him was not authorized by his
implied consent.
20
No. 2014AP1870-CR.mjg
VI. CONCLUSION
¶85 No warrant is required in order to administer the
tests to which a driver has impliedly consented, even if the
driver is found unconscious. Voluntary consent to testing can
be presumed from the decision to drive made with notice of the
statutory requirements and in the absence of any expressed
intent to revoke such consent. Further, this presumption that
an unconscious driver does not withdraw consent is not per se
unreasonable under the Fourth Amendment. Therefore, I cannot
conclude that Howes has met his burden to prove beyond a
reasonable doubt that the unconscious-driver provisions of the
statute are facially unconstitutional and "cannot be
constitutionally enforced under any circumstances." Society
Ins., 326 Wis. 2d 444, ¶26. I conclude that the circuit court
erred in striking down the statute as facially unconstitutional
and in suppressing the results of the blood test on that basis.
¶86 For the foregoing reasons I concur.
¶87 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
21
No. 2014AP1870-CR.dk
¶88 DANIEL KELLY, J. (concurring). I join Chief Justice
ROGGENSACK's opinion in toto as well as the mandate of the
court. I, at the same time, join Part II of Justice
ABRAHAMSON's dissent insofar as it discusses the
constitutionality of Wis. Stat. §343.305(3)(b).
1
No. 2014AP1870-CR.ssa
¶89 SHIRLEY S. ABRAHAMSON, J. (dissenting). Only one
question of law has been at issue in the instant case since its
inception: Whether provisions of Wisconsin's implied consent
law authorizing warrantless blood draws from unconscious
drivers, Wis. Stat. §§ 343.305(3)(ar) and (b), are
constitutional. These statutory provisions appear in Attachment
1.1
¶90 The constitutional inquiry into the statute's
unconscious driver provisions focuses on whether statutory
implied consent to a blood draw, a significant search of the
person, satisfies the "consent" exception to the Fourth
Amendment. This is the only Fourth Amendment issue the parties
addressed in the circuit court and in their briefs and arguments
in this court. This is the only Fourth Amendment issue
addressed by the circuit court. This is the only issue
addressed by the court of appeals in its certification memo.2
¶91 At the suppression hearing, the circuit court
considered the only two issues presented by the parties:
1
For clarity, Chief Justice Roggensack's lead opinion is
joined by Justice Rebecca Grassl Bradley and Justice Daniel
Kelly. Justice Gableman's concurring opinion is joined by
Justice Annette Kingsland Ziegler. Justice Daniel Kelly filed a
concurring opinion. This dissent is joined in its entirety by
Justice Ann Walsh Bradley, and in Part II by Justice Daniel
Kelly insofar as it discusses the constitutionality of Wis.
Stat. § 343.305(3)(b).
2
See State v. Howes, No. 2014AP1870-CR, certification by
Wisconsin Court of Appeals (Wis. Ct. App. Jan. 28, 2016).
1
No. 2014AP1870-CR.ssa
probable cause to arrest the defendant and the constitutionality
of the Wisconsin implied consent law.
¶92 The circuit court held that there was probable cause
to arrest the defendant. I agree.
¶93 After indulging every presumption to sustain the
constitutionality of the statute, the circuit court concluded
that the statute was unconstitutional under the Fourth
Amendment: No consent in the constitutional sense can be given
when the driver is unconscious and incapable of giving or
withdrawing consent. I agree.
¶94 Rather than address the Fourth Amendment issue
presented by the parties, the lead opinion sua sponte upholds
the warrantless blood draw under the Fourth Amendment by
fabricating "exigent circumstances." The lead opinion misleads
the reader into believing that the circuit court addressed and
decided the existence of exigent circumstances. See lead op.,
¶2. The circuit court did not do so. In paragraph 15, the lead
opinion fesses up that the circuit court merely stated without
analysis that no exigent circumstances were presented by the
instant case.
¶95 The lead opinion establishes the existence of "exigent
circumstances" by stepping off the bench, seating itself at the
counsel table as advocate for the State, and putting itself on
the stand as witness for the State, thus abandoning its role as
neutral decision maker. By raising and deciding the exigent
circumstances exception sua sponte without giving the defendant
an opportunity to present evidence or to be represented by
2
No. 2014AP1870-CR.ssa
counsel, the lead opinion violates basic concepts of due process
and destabilizes the adversary system at both the trial and
appellate levels.3
¶96 Furthermore, no reasonable view of the record supports
theholding that exigent circumstances justify a warrantless
blood draw in the instant case. The lead opinion refuses to
hold itself to the "heavy burden" it undertakes (when it acts as
the State's surrogate) to rebut the presumption by clear and
convincing evidence that a warrantless search of Howes is
unreasonable.4
¶97 In essence, the lead opinion engages in an assault on
Missouri v. McNeely, 133 S. Ct. 1552 (2013). McNeely caused a
paradigm shift in Fourth Amendment and drunk-driving law.5 The
McNeely Court held:
3
As the United State Supreme Court has explained: "In our
adversary system, in both civil and criminal cases, in the first
instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the
issues for decision and assign to courts the role of neutral
arbiter of matters the parties present." Greenlaw v. United
States, 554 U.S. 237, 243–44 (2008) (citing Castro v. United
States, 540 U.S. 375, 381–83 (2003)). The Court further
explained: "To the extent courts have approved departures from
the party presentation principle in criminal cases, the
justification has usually been to protect a pro se litigant's
rights." The defendant in the instant case is not a pro se
litigant. He is represented by counsel.
4
Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) ("[P]olice
bear a heavy burden when attempting to demonstrate an urgent
need that might justify warrantless searches or arrests").
5
See, e.g., State v. Tullberg, 2014 WI 134, ¶42, 359
Wis. 2d 421, 857 N.W.2d 120 (McNeely "changed the landscape of
warrantless blood draws in Wisconsin").
3
No. 2014AP1870-CR.ssa
• "[W]hile the natural dissipation of alcohol in the
blood may support a finding of exigency in a specific
case, . . . it does not do so categorically."
McNeely, 133 S. Ct. at 1563.
• A "careful case—by-case assessment of exigency" must
be undertaken. McNeely, 133 S. Ct. at 1561.
• Most importantly, if law enforcement "can reasonably
obtain a warrant before a blood sample can be drawn
without significantly undermining the efficacy of the
search, the Fourth Amendment mandates that they do
so." McNeely, 133 S. Ct. at 1561 (emphasis added).
¶98 These McNeely principles govern the instant case.
McNeely's directive that a court engage in careful, case-by-case
assessments of exigency cannot be met by way of the lead
opinion's assumptions and speculation in an appellate opinion.
The record does not support a case-by-case assessment of
exigency in the instant case and does not support a holding that
law enforcement could not have reasonably obtained a warrant
before a blood sample could be drawn.
¶99 Because the lead opinion whittles away constitutional
protections for the defendant and all of us under the rubric of
exigent circumstances, I dissent.
¶100 I will first address the lead opinion's explication of
exigent circumstances as an exception to the Fourth Amendment in
the instant case. I will then address the constitutionality of
the statutory implied consent under the Fourth Amendment.
I
4
No. 2014AP1870-CR.ssa
¶101 At the hearing on the motion to suppress the test
results from the blood draw, the State's witness, Deputy Schiro
of the Dane County Sheriff's Office, was the only witness. He
testified to establish probable cause and his compliance with
the implied consent law.
¶102 The State did not introduce any evidence to establish
exigent circumstances. Indeed, the State did not even hint that
exigent circumstances may have authorized the warrantless blood
draw.
¶103 The defendant has never been given notice or an
opportunity to present evidence or make arguments regarding what
has become the dispositive issue in the instant case——exigent
circumstances. I thus conclude that the lead opinion has
deprived the defendant of due process and has destabilized the
adversary system at both the trial and appellate levels.
¶104 A defendant has due process rights to notice of issues
to be resolved and to be heard in a meaningful way, including "a
right to examine the witnesses against him, to offer testimony,
and to be represented by counsel." Washington v. Texas, 388
U.S. 14, 18 (1967) (citing In re Oliver, 333 U.S. 257, 273
(1948)).6 The defendant's due process rights in the instant case
6
Lankford v. Idaho, 500 U.S. 110, 126 (1991) ("notice of
issues to be resolved by the adversary process is a fundamental
characteristic of fair procedure."); California v. Trombetta,
467 U.S. 479, 485 (1984) ("criminal prosecutions must comport
with prevailing notions of fundamental fairness"); Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950)
(due process requires that "adjudication be preceded by notice
and opportunity for hearing appropriate to the nature of the
case").
5
No. 2014AP1870-CR.ssa
to get notice, to be heard, to present a complete defense, and
to have counsel have been violated.7
7
See In re Termination of Parental Rights to Daniel R.S.,
2005 WI 160, ¶65, 286 Wis. 2d 278, 706 N.W.2d 269 ("the
opportunity to be heard includes the right to 'present a
complete defense'") (quoted source omitted).
"The opportunity to present arguments on the legal issue
upon which a case is to be decided is fundamental to sound legal
process . . . ." Bloomer v. Gibson, 912 A.2d 424, 433–34 (Vt.
2006) (citing Adam A. Milani & Michael R. Smith, Playing God: A
Critical Look at Sua Sponte Decisions by Appellate Courts, 69
Tenn. L. Rev. 245 (2002)). The Bloomer court cited large swaths
of Milani and Smith's article, including the following
discussion:
[B]eing denied an opportunity to address the issue
that ultimately proves dispositive of a case is no
different than a complete denial of an opportunity to
be heard. If a court perceives the issues on appeal
as different from those addressed by the parties, the
parties should have a right to receive notice of the
court's concern about those issues and to present
arguments on them. Without this right, the
opportunity to be heard is but a "teasing illusion."
Allowing a party to submit briefs and arguments on
what the party believes to be the issues, but denying
that party the opportunity to be heard on the issue
the court deems dispositive, is akin to granting
citizens free speech but barring them from speaking on
issues of public concern. In both situations, the
exception renders the right meaningless.
Milani & Smith, 69 Tenn. L. Rev. at 268-69 (footnotes omitted).
See also Justice Ann Walsh Bradley's concurrence in City of
Janesville v. CC Midwest, Inc., 2007 WI 93, ¶68, 302
Wis. 2d 599, 641, 734 N.W.2d 428, 450 (Bradley, J., concurring),
explaining the fundamental premise of the adversary system:
The rule of law is generally best developed when
issues are raised by the parties and then tested by
the fire of adversarial briefs and oral arguments.
Indeed, "[t]he fundamental premise of the adversary
process is that these advocates will uncover and
present more useful information and arguments to the
(continued)
6
No. 2014AP1870-CR.ssa
¶105 Furthermore, this kind of violation of due process may
undermine the validity and legitimacy of the court's decision:
"If notice is not given, and the adversary process is not
permitted to function properly, there is an increased chance of
error . . . and with that, the possibility of an incorrect
result." Lankford v. Idaho, 500 U.S. 110, 127 (1991).
¶106 Moreover, the lead opinion violates a basic rule of
appellate review by bypassing the adversary process and raising
and deciding a dispositive issue on its own without the benefit
of briefs or argument.8
decision maker than would be developed by a judicial
officer acting on his own in an inquisitorial system."
Adam A. Milani & Michael R. Smith, Playing God: A
Critical Look at Sua Sponte Decisions By Appellate
Courts, 69 Tenn. L. Rev. 245, 247 (2002), citing
United States v. Burke, 504 U.S. 229, 246, 112 S. Ct.
1867, 119 L. Ed. 2d 34 (1992) (Scalia, J.,
concurring).
8
"As various members of this court have said, we should not
'reach out and decide issues' that were not presented to the
court by the parties." Dairyland Greyhound Park, Inc., v.
Doyle, 2006 WI 107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408(Roggensack, J., concurring in part & dissenting in part)
(quoting Town of Beloit v. Cty. of Rock, 2003 WI 8, ¶72, 259
Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting)). See
also State v. Thompson, 2012 WI 90, ¶¶9, 60, 342 Wis. 2d 674,
818 N.W.2d 904 (declaring that the court should not decide
issues that are not briefed).
(continued)
7
No. 2014AP1870-CR.ssa
¶107 In addition to issues of violating due process and
appellate practice, as a factual matter, if counsel for the
defendant had had an opportunity to address exigent
circumstances, counsel might have presented evidence and
argument that significantly undercut the lead opinion's
presentation of what might have been (but was not and might not
be) the State's position on exigent circumstances.
¶108 For example, a key factual sticking point in the lead
opinions's exigent circumstances analysis is that the record
does not demonstrate that law enforcement could not have timely
secured a warrant. The lead opinion presents no evidence
establishing approximately how long it would have taken to
obtain a warrant for the blood draw in Dane County. Yet the
The United States Supreme Court has often explained the
fundamental importance of the adversarial presentation of
issues. See, e.g., Penson v. Ohio, 488 U.S. 75 (1988) ("This
system is premised on the well-tested principle that truth——as
well as fairness——is 'best discovered by powerful statements on
both sides of the question.'" (citations omitted)); Polk Cty. v.
Dodson, 454 U.S. 312, 318 (1981) ("The system assumes that
adversarial testing will ultimately advance the public interest
in truth and fairness."); Mackey v. Montrym, 443 U.S. 1, 13
(1979) ("[O]ur legal tradition regards the adversary process as
the best means of ascertaining truth and minimizing the risk of
error . . . .").
See also State v. Negrete, 2012 WI 92, ¶80 n.20, 343
Wis. 2d 1, 819 N.W.2d 749 (Abrahamson, C.J., dissenting)
("Scholars have made similar observations. See, e.g., Stephan
Landsman, Readings on Adversarial Justice: The American
Approach to Adjudication (1988); Jerold H. Israel, Cornerstones
of the Judicial Process, Kan. J.L. & Pub. Pol'y, Spring 1993, at
5; Ellen E. Sward, Values, Ideology, and the Evolution of the
Adversary System, 64 Ind. L.J. 301, 316–19 (1989).").
8
No. 2014AP1870-CR.ssa
lead opinion, without any evidentiary record, concludes that the
officer did not have time.
¶109 At the suppression hearing, which addressed whether
the officer had probable cause to arrest and the officer's
compliance with the implied consent statute, the officer
testified as follows on cross-examination by defense counsel and
on redirect examination by the State that he had the time to get
a warrant:
On cross-examination of Deputy Schiro by defense counsel:
Q. And you had plenty of time in this case to get a
warrant, didn't you?
A. Yes
. . . .
On redirect examination of Deputy Schiro by the State:
Q. You testified on cross-examination, Deputy Schiro,
that you had plenty of time to get a warrant before
the blood draw. Why didn't you?
A. I believe I did not have to.
¶110 The lead opinion rejects the Dane County deputy's
testimony as the deputy's subjective belief. The lead opinion
reminds us that the totality of the circumstances test for
exigent circumstances is an objective one. See lead op., ¶36 &
n.9.
¶111 Relying on United States v. Richardson, 208 F.3d 626,
629 (7th Cir. 2000), the lead opinion reasons that "a police
officer's subjective belief that exigent circumstances exist is
insufficient to make a warrantless search." The instant case is
distinguishable from Richardson. Here, the officer testified
9
No. 2014AP1870-CR.ssa
that he did not believe there were exigent circumstances.
Because the Fourth Amendment puts the burden to prove the
reasonableness of a warrantless search on the government, it is
one thing to ignore the officer's subjective, self-serving
belief that he did not have time to get a warrant and a wholly
different issue to rely on the officer's statement that he had
time to get a warrant as an objective evaluation of exigency.
¶112 Furthermore, defense counsel might have offered as
expert testimony the deputy's testimony about whether he had
time to get a warrant. The testifying deputy has worked for 15
years as a Dane County law enforcement officer, and he ought to
be qualified to testify from personal, professional expertise
about the time needed to get a warrant in Dane County.
¶113 Advancements have been made for the expeditious
processing of warrant applications. McNeely, 133 S. Ct. at
1561-63. See Wis. Stat. §§ 968.12(3)(a)-(d) (authorizing search
warrants on oral testimony communicated to the judge by
telephonic, radio, or other means of electronic communication).
The Dane County Circuit Court has a system of 24/7 duty judges
to provide telephonic warrants. See Dane County Court Rules,
Rule 102, entitled "Duty Judge Responsibility."
¶114 Indeed the Dane County deputy's view on how long it
would take to get a telephonic warrant in Dane County ought to
be more reliable than the unsupported view of the three justices
joining the lead opinion. Furthermore, the Dane County Circuit
Court's view on how long it would take to get a telephonic
10
No. 2014AP1870-CR.ssa
warrant in Dane County ought to be more reliable than the view
of the three justices joining the lead opinion.
¶115 In rendering its decision declaring the blood draw
unconstitutional, the circuit court declared as an aside that
there were no exigent circumstances causing an exception to the
warrant requirement and that the deputy had time to get a
warrant:
[T]here are no exigent circumstances that are
identified here that would cause an exception to the
warrant requirement. . . . [t]he officer testified
that there was no reason he could not have gotten a
warrant. . . . There is nothing to suggest that there
were exigent circumstances that would obviate the
warrant requirement, so that's where we need to leave
it then today.
¶116 In addition, defense counsel might have challenged the
lead opinion's reliance on the defendant's prohibited alcohol
concentration of 0.02 percent as supporting exigent
circumstances. Blood alcohol concentration, BAC, refers to the
amount of alcohol in the driver's blood. Prohibited alcohol
content, PAC, refers to the legal limit of alcohol in a driver's
blood.9
9
See Wis. Stat. § 346.63, Operating under influence of
intoxicant or other drug:
(1) No person may drive or operate a motor vehicle
while:
. . . .
(b) The person has a prohibited alcohol concentration.
See Wis. Stat. § 340.01(46m):
"Prohibited alcohol concentration" means one of the
following:
(continued)
11
No. 2014AP1870-CR.ssa
¶117 According to the lead opinion, a 0.02 percent BAC will
disappear in one to two hours. Lead op., ¶45. With this
shortened timeline, the time available for an officer to obtain
a warrant decreases, according to the lead opinion. This
proposition is central to the analysis in the lead opinion.
¶118 Under closer scrutiny, it appears that this critical
one-to-two-hour time period might have elapsed before the blood
draw was requested or taken and that the lowered PAC is
irrelevant to the exigent circumstances analysis in the instant
case.
¶119 The record does not reveal the time at which the
defendant stopped drinking or the time at which the accident
occurred. See lead op., ¶47. The record demonstrates only that
the blood draw was roughly two hours after the sheriff's office
was advised of the accident. See lead op., ¶13.
¶120 Thus, the defendant's last drink and the accident were
obviously more than two hours before the blood was drawn. If a
0.02 percent BAC will dissipate in one to two hours (as the lead
opinion suggests), there were no exigent circumstances when the
blood draw was made because the BAC in all probability would had
already dissipated.
(a) If the person has 2 or fewer prior convictions,
suspensions, or revocations, as counted under s.
343.307(1), an alcohol concentration of 0.08 or more.
(c) If the person is subject to an order under s.
343.301 or if the person has 3 or more prior
convictions, suspensions or revocations, as counted
under s. 343.307(1), an alcohol concentration of more
than 0.02.
12
No. 2014AP1870-CR.ssa
¶121 The record nevertheless indicates that the defendant's
BAC was in all probability more than 0.02 percent. Several
witnesses reported smelling intoxicants on the defendant.
According to the Assistant District Attorney's argument at the
suppression hearing, a person with a 0.11-.13 percent BAC will
not exude "an incredibly heavy" odor. Thus, a person with a
0.02 percent BAC would have exuded even less of an odor of
intoxicants.10
¶122 If the defendant's BAC was substantially higher than
0.02 percent, then law enforcement would have had more than one
to two hours after the last drink within which to obtain a
warrant for a blood draw and still gather evidence that
defendant violated the law.
¶123 In either eventuality, that is, whether the defendant
had a .02 percent BAC or had a higher BAC, the lead opinion's
reliance on the defendant's lower PAC threshold to support
exigent circumstances falls apart.
¶124 Defense counsel might have shown that the hour before
law enforcement requested the hospital for a blood draw and the
hour between the officer's request for a blood draw and the
blood draw were sufficient times for the officer to get a
warrant.
10
The assistant district attorney set forth this
proposition in order to explain why Deputy Schiro did not
testify that he recalled smelling alcohol on the defendant. See
Pet. App. at 77.
13
No. 2014AP1870-CR.ssa
¶125 The evidence of the defendant's medical condition was
sketchy. It is thus unclear whether it would have led a
reasonable officer to conclude that there was no time to obtain
a warrant before blood was drawn.
¶126 Defense counsel might have also shown that several law
enforcement officers were on the accident scene and were
available to aid Deputy Schiro. Deputy Schiro also talked with
his sergeant.
¶127 The involvement of other law enforcement agents cuts
against the existence of exigent circumstances. There is
nothing in the record indicating that the several officers
involved were so busy finding or identifying the driver,
extensively investigating the accident, tending to injured
victims, removing the deer and motorcycle from the road, or
engaging in other activities that neither they nor the sergeant
could not initiate a telephone warrant process.
¶128 In addition, defense counsel might have persuaded the
court to follow precedent, namely State v. Kennedy, 2014 WI 132,
¶34 n.13, 359 Wis. 2d 454, 856 N.W.2d 834, in which the court
explained its reluctance to address exigent circumstances when
the State does not argue that exigent circumstances existed:
The State, which would bear the burden, does not argue
that exigent circumstances existed in this case.
Neither the State nor Kennedy focus on this issue.
Whether an exigency exists in a given case will vary
depending on any number of facts or circumstances, as
law enforcement investigations are often
extraordinarily fluid situations. Our holding in this
case must not be read to affirmatively conclude that
exigent circumstances did not support the warrantless
investigatory blood draw performed on Kennedy.
14
No. 2014AP1870-CR.ssa
Nonetheless, our analysis remains focused on the
arguments addressed by counsel . . . .11
¶129 The legal effect of the exigent circumstances analysis
in the lead opinion is that it allows a warrantless blood draw
when it is unclear from the record whether law enforcement had
time to secure a warrant. Yet McNeely declares that no exigent
circumstances exist when there is time to secure a warrant.
¶130 Furthermore, the legal effect of the exigent
circumstances analysis in the lead opinion creates an
impermissible per se rule that no warrant is needed to draw
blood for certain drivers. It is unclear, however, to whom the
per se rule is applicable: To drivers who are unconscious from
a motor vehicle accident? To unconscious drivers of motor
vehicles who are restricted to a 0.02 BAC? To seriously injured
hospitalized drivers?
¶131 In other words, law enforcement doesn't know which
elements of the totality of the circumstances present in the
instant case, see lead op., ¶3, are essential to justify a
11
See also Bailey v. State, 790 S.E.2d 98, 104 (Ga. Ct.
App. 2016):
The State, however, produced no evidence of exigent
circumstances. For example, there was no evidence
regarding how long the warrant process was expected to
take and whether officers could have been seeking a
warrant while Bailey was being transported to the
hospital. Thus, this could have been the situation
imagined by the McNeely Court "in which the warrant
process will not significantly increase the delay
before the blood test is conducted because an officer
can take steps to secure a warrant while the suspect
is being transported to a medical facility by another
officer."
15
No. 2014AP1870-CR.ssa
warrantless blood draw. The lead opinion provides no clear
direction for law enforcement to follow in the future.
¶132 In sum, as a matter of law, when both the State and
the defendant have not had the opportunity to offer evidence or
argument on the issue of exigent circumstances and this court
decides the case on the dispositive issue of exigent
circumstances, the defendant has not received a full and fair
due process evidentiary or appellate hearing on his Fourth
Amendment motion to suppress. The instant case does not present
an extraordinary situation justifying departure from the rule
requiring the parties to present the issues.
¶133 In sum, as a matter of fact, the lead opinion cannot
condone the warrantless blood draw on exigent circumstances with
the sparse record of facts before it.12 As the Dane County
12
The lead opinion also considers the four-part
reasonableness test that applies once exigent circumstances are
established that was set forth in State v. Kennedy, 2014 WI 132,
¶17, 359 Wis. 2d 454, 856 N.W.2d 834. See lead op., ¶25.
Because I conclude that there were no exigent circumstances
in the instant case, I do not respond to the lead opinion's
application of these factors. However, I am skeptical that the
instant case satisfies the fourth factor, that "the arrestee
presents no reasonable objection to the blood draw." Kennedy,
359 Wis. 2d 454, ¶17. Because the defendant was unconscious, he
had no chance to object.
The lead opinion's response seems to be that "the fourth
factor speaks to the reasonableness of the type of search
employed, not whether a warrant was required to conduct the
search." Lead op., ¶26 n.8.
(continued)
16
No. 2014AP1870-CR.ssa
Circuit Court observed in declaring the relevant provisions of
Wisconsin's implied consent law unconstitutional:
All the police officer had to do to comply with the
Fourth Amendment was to get a warrant. The defendant
was not about to go anywhere but to the operating
room. The duty judge was a phone call away.
Following McNeely, we routinely handle blood draw
search warrants by telephone. I respectfully suggest
that procedure is more consonant with the Fourth
Amendment than reading a form to an unconscious man
and then ordering his blood to be taken.
II
¶134 Because I conclude that exigent circumstances did not
render the warrantless blood draw constitutionally permissible,
I turn to considering the provisions of the implied consent law
regarding unconscious drivers. According to the statute,
unconscious drivers incapable of withdrawing consent are
presumed not to have withdrawn consent to the blood draw. See
Wis. Stat. § 343.305(3)(b).
¶135 The State did not solicit any testimony at the
suppression hearing that the defendant's consent to the blood
Characterizing this factor as a reference to the type of
test conducted and asserting that the defendant raised no
objection to the type of search misses the point: The defendant
was unconscious. The lead opinion has no way of knowing whether
the defendant was "one of the few who on grounds of fear,
concern for health, or religious scruple might prefer some other
means of testing . . . . ." Schmerber v. California, 384 U.S.
757, 771 (1966). The lead opinion seems to concede that the
defendant did not impliedly consent to the search.
I do not understand the reasoning of the lead opinion in
its footnote, but it seems internally inconsistent.
17
No. 2014AP1870-CR.ssa
draw was given in fact and was voluntary. The State relied on
the statute alone to prove the defendant's consent.
¶136 Adhering to the reasoning set forth in State v.
Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, I
conclude that the statute's unconscious driver provisions are
unconstitutional because unconscious drivers have not freely and
voluntarily consented to the warrantless blood draw under the
Fourth Amendment. Therefore, the warrantless blood test in the
instant case should be suppressed.
¶137 Throughout the course of the instant litigation, the
State has relied on consent as the applicable exception to the
warrant requirement to validate the warrantless blood draw. The
State's position is that the defendant's statutory "implied
consent," deemed to have occurred before the defendant was
arrested for suspected drunk driving, is voluntary consent for
purposes of the consent exception to the Fourth Amendment's
warrant requirement.
¶138 The parties disagree whether this statutory implied
consent satisfies the Fourth Amendment requirement of consent.
No federal or state cases are directly on point, and, as the
court of appeals' excellent certification memorandum explains,
tension exists in the case law.
¶139 Because a majority of the court has not written on the
constitutional issue, I do not address it at length.
¶140 Upon considering the parties' arguments, the reasoning
of the circuit court, and case law from the United States
Supreme Court and the states, I conclude that the Wisconsin
18
No. 2014AP1870-CR.ssa
implied consent statute, applied to unconscious drivers, does
not provide an independent and valid consent exception to the
warrant requirement.
¶141 Warrantless searches are unreasonable, subject to a
few narrow exceptions. State v. Artic, 2010 WI 83, ¶29, 327
Wis. 2d 392, 786 N.W.2d 430. One such exception is a search
conducted pursuant to consent. The general rule is that the
State must prove that consent was "given in fact by words
gestures, or conduct" and that the consent was "voluntary."
Artic, 327 Wis. 2d 392, ¶30.
¶142 Whether the consent was given in fact is a "question
of historical fact" that an appellate court will uphold "if it
is not contrary to the great weight and clear preponderance of
the evidence." Artic, 327 Wis. 2d 392, ¶30.
¶143 If the State establishes consent in fact, the State
must prove that the consent was given freely and voluntarily.
Schneckloth v. Bustamonte, 412 U.S. 218, 222, 225 (1973)
(consent must result from "an essentially free and unconstrained
choice").13 The State must meet this burden of proof by clear
13
In State v. Phillips, 218 Wis. 2d 180, 577 N.W.2d 794(1998), this court provided a non-exclusive list of factors for
courts considering the voluntariness of consent to consider:
(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant
to persuade him to consent; (2) whether the police
threatened or physically intimidated the defendant or
"punished" him by the deprivation of something like
food or sleep; (3) whether the conditions attending
the request to search were congenial, non-threatening,
and cooperative, or the opposite; (4) how the
defendant responded to the request to search; (5) what
(continued)
19
No. 2014AP1870-CR.ssa
and convincing evidence. Artic, 327 Wis. 2d 392, ¶32. "The
determination of voluntariness is a mixed question of fact and
law based upon an evaluation of the totality of all the
surrounding circumstances." Artic, 327 Wis. 2d 392, ¶32
(internal quotation marks omitted).
¶144 The consent required in Fourth Amendment cases must be
"'an essentially free and unconstrained choice,' not 'the
product of duress or coercion, express or implied.'" Artic, 327
Wis. 2d 392, ¶32 (quoted source omitted).
¶145 The State argues that drivers on a Wisconsin highway
have given "implied consent" to a warrantless blood draw; that
statutory "implied consent" is the equivalent of actual
voluntary consent for Fourth Amendment purposes; and that the
Wisconsin implied consent statute is constitutional. According
to the State, McNeely does not govern this case because McNeely
concerns exigent circumstances, not consent.
¶146 The State asks this court to hold that the statutory
implied consent supplies constitutional consent for conscious
and unconscious drivers. The State asks this court to overturn
State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849
N.W.2d 867, in which the court of appeals held that the implied
characteristics the defendant had as to age,
intelligence, education, physical and emotional
condition, and prior experience with the police; and
(6) whether the police informed the defendant that he
could refuse consent (emphasis added).
State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786
N.W.2d 430 (citing Phillips, 218 Wis. 2d at 198-203).
20
No. 2014AP1870-CR.ssa
consent statute relating to conscious drivers does not violate
the Fourth Amendment because it provides the person with the
choice of providing actual consent to a blood draw or facing
license revocation. Under Padley, the statutory implied consent
of drivers is consent to this choice, not consent to a blood
draw. The State asks this court to overturn Padley because the
import of Padley is to cast doubt on whether the statute's
implied consent suffices as voluntary consent in all
circumstances for Fourth Amendment purposes.14 The State's
position is that the statutory implied consent is sufficient for
Fourth Amendment purposes in all circumstances.15
¶147 The defendant argues that Padley was correctly
decided. He asserts that he did not consent in fact to a blood
draw because he was unconscious; that any consent was not
14
The court of appeals explained that several cases,
including the following, may be inconsistent: State v. Neitzel,
95 Wis. 2d 191, 289 N.W.2d 828 (1980); State v. Wintlend, 2002
WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745; Village of Little
Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650
N.W.2d 891; State v. Piddington, 2001 WI. 24, 241 Wis. 2d 754,
623 N.W.2d 528; State v. Disch, 129 Wis. 2d 225, 385
N.W.2d 140 (1986). See State v. Howes, No. 2014AP1870-CR,
certification by Wisconsin Court of Appeals (Wis. Ct. App. Jan.
28, 2016).
Thus, the court of appeals requested that this court issue
an authoritative decision clarifying the law.
15
The Padley court noted that, "at least in the context of
incapacitated drivers, 'implied consent' is a sufficient basis
on which to proceed with a warrantless search." The Padley
court acknowledged there may be a tension between its decision
and the statutory language relating to incapacitated drivers.
See State v. Padley, 2014 WI App 65, ¶39 n.10, 354 Wis. 2d 545,
849 N.W.2d 867.
21
No. 2014AP1870-CR.ssa
voluntary because the State's interpretation of the statute
makes implied consent irrevocable;16 and that the statutory
provisions regarding unconscious drivers are the functional
equivalent of a categorical rule rejected in McNeely.17
¶148 Relying on State v. Padley, 2014 WI App 65, ¶26, 354
Wis. 2d 545, 849 N.W.2d 876, in which the court of appeals
distinguished between implied consent (which is consent to
choose between a blood draw and license revocation) and actual
voluntary consent for Fourth Amendment purposes, the circuit
court correctly reasoned, in my opinion, that an unconscious
defendant did not give actual voluntary consent to a blood draw
and that statutory implied consent is analogous to the
categorical exigent circumstances declared invalid in McNeely.
¶149 Padley has statewide precedential effect. Wis. Stat.
§ 752.41(2). We should not overrule precedent without a
compelling justification. Birchfield v. North Dakota, 136 S.
Ct. 2160 (2016), a recent United States Supreme Court case,
supports Padley and the circuit court's decision in the instant
16
See Byars v. State, 336 P.3d 939, 945 (Nev. 2014) (a
"necessary element of consent is the ability to limit or revoke
it") (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("A
suspect may of course delimit as he chooses the scope of the
search to which he consents.")); State v. Halseth, 339 P.3d 368,
371 (Idaho 2014) ("Inherent in the requirement that consent be
voluntary is the right of the person to withdraw that
consent.").
17
See State v. Wulff, 337 P.3d 575, 582 (Idaho 2014)
(declaring that Idaho's implied consent law, which did not allow
drivers to revoke consent to a blood draw, was an
unconstitutional per se exception to the Fourth Amendment).
22
No. 2014AP1870-CR.ssa
case. In Birchfield, the United States Supreme Court recognized
that the longstanding rule permitting a search incident to
arrest allows warrantless breath tests. Nevertheless, the Court
recognized that blood draws are significant intrusions into the
body and concluded that the Fourth Amendment does not
categorically permit warrantless blood draws as valid incident
to an arrest for drunk driving. Birchfield, 136 S. Ct. at 2184.
Referring to McNeely, the Court explained that "[n]othing
prevents the police from seeking a warrant for a blood test when
there is sufficient time to do so in the particular
circumstances or from relying on the exigent circumstances
exception to the warrant requirement when there is not."
Birchfield, 136 S. Ct. at 2184.
¶150 If the United States Supreme Court refuses to
categorically permit a warrantless blood draw premised on the
well-established search incident to arrest exception to the
warrant requirement, a blood draw based on a statutorily imputed
implied consent surely cannot pass muster. Birchfield,
therefore, supports the notion that warrantless blood draws
justified by only statutory implied consent (rather than
voluntary consent in fact) are unreasonable under the Fourth
Amendment. Birchfield also supports the notion that such blood
draws, especially regarding an unconscious driver, lead to
impermissible per se exceptions to the Fourth Amendment.
¶151 In sum, in addition to my conclusions regarding the
errors in the lead opinion in relying on exigent circumstances,
I conclude that the warrantless blood test in the instant case
23
No. 2014AP1870-CR.ssa
is not the product of actual consent in fact made freely and
voluntarily.
¶152 Accordingly, I conclude that the blood test results
should be suppressed as a violation of the Fourth Amendment.
¶153 For the reasons set forth, I write separately to
affirm the order of the circuit court suppressing evidence of
the blood test.
¶154 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent and that Justice DANIEL KELLY joins
Part II of this dissent insofar as it discusses the
constitutionality of Wis. Stat. § 343.305(3)(b).
24
No. 2014AP1870-CR.ssa
ATTACHMENT 1
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