Village of Butler v. Brandon J. Hernandez ( 2024 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 19, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2023AP1707 Cir. Ct. No. 2022TR4349
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
VILLAGE OF BUTLER,
PLAINTIFF-RESPONDENT,
V.
BRANDON J. HERNANDEZ,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Waukesha County:
LLOYD V. CARTER, Judge. Affirmed.
¶1 GROGAN, J.1 Brandon J. Hernandez appeals from a judgment
entered finding he improperly refused to consent when police asked him to submit
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP1707
to an evidentiary blood test. Hernandez contends he consented and that the circuit
court incorrectly determined that his actions and words constituted a refusal. This
court affirms.
I. BACKGROUND
¶2 In June 2022, at about 11:05 p.m., Village of Butler Police Officer
Joseph Benson observed a vehicle driving under the speed limit in the middle of
two lanes with its flashers on. Benson followed the vehicle and observed it as it
proceeded slowly through an intersection and “continued to drive in the middle of
the road.” Benson thereafter conducted a traffic stop of the vehicle, which
Hernandez was driving, and he “[s]melled the odor of intoxicants” and noticed
Hernandez’s slurred speech. According to Benson, Hernandez handed him a
credit card when he asked Hernandez for his ID, and Hernandez also seemed
confused about his location. Hernandez initially denied that he had been drinking
that evening but subsequently admitted to having done so after having been asked
multiple times. Based on his observations and Hernandez’s conduct and
admission, Benson suspected Hernandez was operating under the influence and
conducted field sobriety tests, which Hernandez failed.
¶3 Benson arrested Hernandez and transported him to the police station
for processing. There, Benson read Hernandez the “Informing the Accused” Form
(the Form) and asked Hernandez if he would consent to an evidentiary test.
Hernandez did not respond with either a “yes” or “no” after the first reading and
instead asked a number of questions and struggled with deciding how to ultimately
respond to the question. Benson read the Form a second time, after which
Hernandez again did not answer “yes” or “no” even after being repeatedly
instructed to do so. Instead, he asked if he could delay making a decision and talk
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to a lawyer because he did not understand the consequences of saying yes or
saying no. When pressed for a yes or no answer, Hernandez ultimately responded:
“I guess, yes.” When told he had to definitively answer yes or no and that
“guessing” was not an option, Hernandez waffled again and continued to ask
questions. Benson informed Hernandez he was interpreting Hernandez’s actions
as a refusal, returned to the squad car to fill out the refusal paperwork, and
thereafter issued a citation.
¶4 Hernandez requested a refusal hearing in front of the circuit court.
At the refusal hearing, the parties stipulated as to the facts leading up to
Hernandez’s arrest and that there was “probable cause to arrest[.]” They also
stipulated as “to all of the issues pertinent for [the refusal] hearing with the
exception [of] whether or not there actually was a refusal.”
¶5 Benson had been wearing a body camera during the course of his
interaction with Hernandez, and the Village played a portion of that body camera
footage for the circuit court at the refusal hearing. Benson testified about the body
camera footage at the hearing, and the court admitted the DVD containing the
footage into evidence. Benson further explained that although Hernandez’s
failure to respond with either a “yes” or a “no” after the first reading could have
been deemed a refusal and that police are not required to read the Form a second
time, he decided to read the Form to Hernandez a second time because he wanted
to give Hernandez “the benefit of the doubt[.]” Ultimately, Benson interpreted
Hernandez’s equivocal “I guess, yes” to be a refusal because Hernandez did not
answer with a definitive yes and continued asking questions about what would
happen depending on whether he answered “yes” or “no,” even after responding.
Benson testified that because he had asked Hernandez for an explicit “yes or no
response” multiple times, Hernandez’s reluctant “‘yes, I guess’ did not seem
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certain to [him].” Benson confirmed that after he began filling out the refusal
paperwork, Hernandez “kept repeating ‘I said yes.’” The recording reflects that
even then, Hernandez continued to ask questions about what would happen
depending on how he responded and stated that he was confused.
¶6 After hearing Benson’s testimony, reviewing the body camera
footage, and hearing the parties’ arguments, the circuit court determined that
Hernandez had refused to consent to an evidentiary test. Specifically, it explained
that:
[I]t’s abundantly clear from the record that Officer Benson
read from a form, read it verbatim, inquired of
Mr. Hernandez whether he would submit to an evidentiary
chemical test; and it was clearly interaction back and forth
between Mr. Hernandez and Officer Benson about that
issue. This went on for several minutes. I didn’t time the
exact length of time.
Mr. Hernandez responded to the request for a yes or no
response with further questions, in the Court’s view, either
based upon that lack of understanding of what was
occurring or an attempt to negotiate some other outcome.
This appears to be, in the Court’s view from my
experience, one of those situations where [the] law
enforcement officer attempts to go beyond what is
necessarily required of them by the law, which is to read
the form and require either a yes or no response. The
officer did elect to read the form again after Mr. Hernandez
equivocated in his responses and failed to provide a yes or
no response.
The failure to provide a distinct yes or no amounts to not
being a “yes” and amounts to a refusal. Mr. Hernandez
went back and forth a couple of times and the most he ever
said that the Court heard was “I guess, yes.” “Well, I
guess” doesn’t mean anything. “Yes” means “yes,” “no”
means “no;” and it is not required of the officer to wait a
reasonable amount of time for a person to understand or
comprehend but a reasonable amount of time to answer
with a “yes” or “no.”
Mr. Hernandez didn’t do that. That amounts to a refusal
in the Court’s eyes. And the Court, under those
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circumstances, based on the totality of the evidence that’s
been presented here today, finds that Mr. Hernandez did
refuse a chemical test, that that refusal was not reasonable,
and, therefore, grants the Village’s request to make that
finding that the refusal was not proper.
The court thereafter entered judgment, and Hernandez appeals.
II. DISCUSSION
¶7 The issue in this case is whether the circuit court correctly
determined that Hernandez refused to consent to an evidentiary test. Whether
Hernandez consented presents “a question of historical fact.” See State v. Artic,
2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430. Appellate courts “uphold a
finding of consent in fact if it is not contrary to the great weight and clear
preponderance of the evidence.” Id.; see also State v. Brar, 2017 WI 73, ¶13, 376
Wis. 2d 685, 898 N.W.2d 499 (“‘We will uphold a circuit court’s finding of
historic fact unless it is clearly erroneous.’” (citation omitted)). In determining
whether “consent was given in fact,” a court looks first to an accused’s “words,
gestures, or conduct; and, second, [to] whether the consent given was voluntary.”
Artic, 327 Wis. 2d 392, ¶30.
¶8 Hernandez argues that the circuit court erred in finding that his
actions and words constituted a refusal. He claims, to the contrary, that he
“actively consented through his affirmative language and actions.” The Village
responds that the court’s finding was correct and quotes State v. Neitzel, 95
Wis. 2d 191, 205, 289 N.W.2d 828 (1980), for the proposition that the law
requires an accused “to take the test promptly or to refuse it promptly.” Here, the
Village says, Hernandez did neither.
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¶9 While neither party specifically addresses the Fourth Amendment,2 it
is worth noting that both the Fourth Amendment and Article I, Section 11 of the
Wisconsin Constitution3 “protect ‘[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’”
State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463 (alteration
in original; citations omitted). However, “[t]he Fourth Amendment does not
proscribe all state-initiated searches and seizures; it merely proscribes those which
are unreasonable.” Brar, 376 Wis. 2d 685, ¶15 (quoting Florida v. Jimeno, 500
U.S. 248, 250 (1991)). “‘[A] search conducted pursuant to consent’” is a
“‘well-established exception to the warrant requirement[.]’” Brar, 376 Wis. 2d
685, ¶16 (citation omitted).
¶10 After hearing testimony at the refusal hearing and viewing the body
camera footage, the circuit court found that Hernandez did not consent to
Benson’s request that he submit to an evidentiary test. In reaching this conclusion,
the court based its finding on the totality of the circumstances and the fact that
Hernandez did not simply say “yes” but instead, after a substantial exchange with
the officer, said, equivocally, “I guess, yes.”
¶11 Hernandez asserts that the circuit court erred in reaching this
conclusion because, he says, he consented both through Wisconsin’s Implied
Consent Law, WIS. STAT. § 343.305(2), and then through his words. In regard to
implied consent, Hernandez argues that he consented to the search based on his
decision to drive on Wisconsin’s roads and that his implied consent is consent by
2
U.S. CONST. amend IV.
3
WIS. CONST. art. I, § 11.
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No. 2023AP1707
conduct. See Brar, 376 Wis. 2d 685, ¶¶20-21. Relying on State v. Wantland,
2014 WI 58, ¶33, 355 Wis. 2d 135, 848 N.W.2d 810, for the proposition that
revocation of consent must be unequivocal, Hernandez therefore argues that
because he consented to the search via his conduct (driving on Wisconsin’s roads),
he could only revoke that consent via an unequivocal action or statement because
an ambiguous attempt to revoke consent is insufficient. Thus, he says, his
response of “I guess, yes” was an affirmation of his consent—or at the very least,
that it was not an unequivocal revocation of his previously given implied consent.
¶12 While Hernandez is correct that “consent given by virtue of driving
on Wisconsin’s roads … is one incarnation of consent by conduct” and that such
consent “is no less sufficient” than other forms of consent, in the context of
implied consent cases, it nevertheless remains necessary to “consider the totality
of the circumstances” in determining whether “an individual’s previously-given
consent continues to be voluntary[.]” See Brar, 376 Wis. 2d 685, ¶¶20-21, 25.
Whether the consent remained voluntary is based on the totality of the
circumstances. Id., ¶25.
¶13 Because the circuit court determined that Hernandez’s response was
a refusal—in other words, that Hernandez had revoked his consent—this court, in
applying these principles, must determine whether, at the time Hernandez
responded “I guess, yes,” Hernandez was reaffirming his previously given consent
or, to the contrary, was revoking that consent “when he was given the statutory
opportunity to withdraw consent at the officer’s reading of the Informing the
Accused form[.]” See id., ¶34.
¶14 Having reviewed the Record, including the body camera footage,
this court cannot conclude that the circuit court erroneously exercised its
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discretion in concluding, based on the totality of the circumstances, that
Hernandez revoked his consent (i.e., refused).
¶15 As Brar has made clear, a driver who “avail[s] himself of the roads
of Wisconsin … [has] consented through his conduct to a blood draw[,]” and
“[a]ny analysis of a driver’s consent under Wisconsin’s implied consent law must
begin with this presumption.” Id., ¶29. This is only the starting point, however,
as WIS. STAT. § 343.305(4) requires that an officer, upon requesting that an
individual submit to an evidentiary test, read the Form to the accused. See State v.
Prado, 2021 WI 64, ¶¶22-23, 397 Wis. 2d 719, 960 N.W.2d 869. The Form, in
turn, “sets forth the consequences of refusing the test, which include revocation of
operating privileges, and the consequences of consenting to the test, i.e. that the
results can be used against the suspect in court.” Id., ¶23. The implied consent
statute thus “gives those who are capable of responding a choice: submit to the
test and risk that the results are presented in court, or refuse the test and face
license revocation and other civil penalties.” Id. Consequently, even in the
context of the implied consent law—where Brar has established that consent by
conduct has already been given—a driver such as Hernandez must either reaffirm
the previously given consent or revoke that consent by refusing to submit to the
officer’s request. And, as is clear, “consent for purposes of a Fourth Amendment
search must be ‘unequivocal and specific.’” Prado, 397 Wis. 2d 719, ¶46 (quoting
State v. Reed, 2018 WI 109, ¶8, 384 Wis. 2d 469, 920 N.W.2d 56).
¶16 Here, Hernandez’s actions and words upon being read the Form
demonstrated reluctance to reaffirm the previously given consent and did not
convey that he remained willing to voluntarily submit to a bodily intrusion for the
purpose of testing his blood alcohol concentration. Neither the Fourth
Amendment nor the implied consent law allows for such equivocation; rather, an
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accused must “take the test promptly or … refuse it promptly.” See Neitzel, 95
Wis. 2d at 205; see also Prado, 397 Wis. 2d 719, ¶46 (consent must be
unequivocal and specific). That did not happen here. To the contrary, each and
every time Benson asked for an affirmative response, Hernandez failed to provide
one, and although Hernandez ultimately provided an equivocal—as demonstrated
by his demeanor—yes when he responded “I guess, yes,” his actions before and
after the equivocal yes indicated that he was not voluntarily consenting to submit
to a blood draw. Specifically, Hernandez repeatedly expressed confusion as to
whether he should say yes or no after Benson read the Form multiple times, and he
clearly struggled to make a decision as to whether or not to consent. Ultimately, it
is clear that Hernandez did not want to submit to the blood test, and he sufficiently
communicated that to the officer.
¶17 To the extent Hernandez suggests he was confused about the Form,
confusion over the Form is not a defense in a refusal case. See County of
Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995),
abrogated on other grounds by Washburn County v. Smith, 2008 WI 23, ¶56, 308
Wis. 2d 65, 746 N.W.2d 243. Consequently, without a definitive “yes,”
Hernandez’s actions, given the totality of the circumstances here, may only be
interpreted as a refusal.4
4
In reaching this conclusion, this court necessarily rejects Hernandez’s argument that the
circuit court improperly relied upon State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct.
App. 1997), in finding that Hernandez had revoked his consent (refused). While Hernandez is
correct that the facts in his case differ from those at issue in Rydeski, the reality is that the facts in
such cases are always different. Nevertheless, the legal principles still apply. Here, neither
Hernandez’s professed confusion nor his attempt to consent after Benson began filling out the
refusal paperwork alters the outcome in this matter.
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¶18 Based on the foregoing, this court agrees with the circuit court’s
analysis. Under the totality of the circumstances, it was reasonable for the circuit
court to conclude that Hernandez’s conduct and words did not constitute voluntary
consent. Therefore, the circuit court’s finding that Hernandez refused the request
to submit to an evidentiary test was not clearly erroneous.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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