City of Mequon v. John R. Schumacher ( 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.
July 3, 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. 2023AP2411 Cir. Ct. No. 2021TR3234
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN THE MATTER OF THE REFUSAL OF JOHN R. SCHUMACHER:
CITY OF MEQUON,
PLAINTIFF-RESPONDENT,
V.
JOHN R. SCHUMACHER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Ozaukee County:
PAUL V. MALLOY, Judge. Affirmed.
No. 2023AP2411
¶1 GUNDRUM, P.J.1 John R. Schumacher appeals from a judgment of
the circuit court determining he unlawfully refused chemical testing of his blood
when requested by the arresting City of Mequon police officer. He claims we
should reverse because “the circuit court erred when it found that [the arresting
officer] had probable cause to arrest [him] for operating a motor vehicle while
under the influence of an intoxicant, and further, when it denied his motion to
[dismiss the refusal proceedings] based upon the officer’s failure to honor
[Schumacher’s] request that he submit to a test other than blood.” We conclude
the court did not err, and we affirm.
Background
¶2 After Schumacher’s arrest for operating a motor vehicle while
impaired (OWI), the arresting officer read to him the Informing the Accused form
and asked him if he would submit to a blood draw for chemical testing. He
ultimately refused the officer’s request, and the officer issued him a Notice of
Intent to Revoke Operating Privilege. Schumacher timely requested a refusal
hearing. Professing a lack of probable cause, Schumacher filed a suppression
motion challenging the OWI arrest and the evidentiary fruits that flowed from it.2
He also filed a motion to dismiss the refusal proceedings based on lack of probable
cause and the fact that while he had refused to submit to a blood draw, he had
offered to instead submit to a breath or urine test. At the hearing on his motions,
the following relevant evidence was presented.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This appeal concerns only Schumacher’s refusal to consent to a blood draw; his arrest
for OWI is not before us.
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No. 2023AP2411
¶3 The officer testified that around 9:00 p.m. on November 15, 2021, he
observed a vehicle with a nonfunctioning driver’s side headlight. As the vehicle
passed him, the officer “noticed that … there was pretty significant driver’s side
damage done to [the] vehicle,” and he believed the damage had occurred recently
because he “could actually hear pieces of the vehicle scraping on the pavement.”
Conducting a traffic stop based on the defective headlight, the officer identified
Schumacher as the driver and sole occupant of the vehicle.
¶4 When the officer asked Schumacher how the damage had occurred,
he indicated he had “struck … a sign [pole] somewhere” but “didn’t know exactly
where.” Schumacher “peek[ed] out of the vehicle and [was] surprised by the
extent of the damage. He was unaware of how extensive the damage to the
vehicle was.” While speaking with Schumacher, the officer smelled the odor of
intoxicants and observed that Schumacher had “glassy, bloodshot eyes.”
Schumacher admitted to having consumed alcohol and coming from Maxwell’s,
an establishment the officer knew to be “like, a bar.”
¶5 The officer had Schumacher perform field sobriety tests, beginning
with the horizontal gaze nystagmus (HGN) test. The officer testified there are “six
clues” associated with this test that indicate impairment, and the officer observed
four with Schumacher—“a lack of smooth pursuit” and “nystagmus at max[imum]
deviation” in both of Schumacher’s eyes. The officer did not observe “the onset
of nystagmus prior to 45 [degrees]” in either eye, two other possible clues. The
officer then checked Schumacher for vertical nystagmus, which would indicate “a
high alcohol level,” but the officer did not observe this in either of his eyes.
¶6 Schumacher then performed the walk-and-turn test. On this test
officers look for eight potential clues of impairment, although two clues are
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No. 2023AP2411
indicative of impairment. While the officer was instructing Schumacher with
regard to this test, he displayed his first clue in that he “was not able to keep
balance and did break from [his] starting position.” Schumacher then returned to
the starting position, but shortly thereafter “[b]r[oke] for a second time from that
starting position.” Schumacher showed three additional clues of impairment on
this test—missing heel-to-toe with his steps on four occasions, turning in an
incorrect manner, and using his arms to maintain balance while taking the steps.
¶7 Schumacher then performed the one-legged-stand test, on which an
officer looks for four possible clues of impairment, with two out of four indicating
impairment. Schumacher exhibited one of the four possible clues.
¶8 The officer then administered a preliminary breath test (PBT) to
Schumacher, which showed a result of .037. The officer testified that “[b]ased on
[his] previous experience with OWIs,” he concluded that “the number of clues
[Schumacher had exhibited on his field sobriety tests] was not consistent with the
result of the PBT.” As a result, the officer suspected “additional medications or
something [in addition to alcohol] … was … causing additional impairment.”
¶9 Believing Schumacher to be impaired, the officer arrested him and
subsequently read him the Informing the Accused form. Because the officer
“believed there to be drugs that may have” been contributing to Schumacher’s
impairment, the officer asked Schumacher if he would submit to a blood test.
Schumacher responded “that he would do breath or urine and that he wanted to do
breath because he knew he hadn’t drank a lot.” Several times the officer reiterated
that he was requesting a blood test, and Schumacher eventually agreed. The
officer concurred that Schumacher made a comment “about not wanting someone
with Parkinson’s drawing his blood,” which the officer interpreted as meaning
4
No. 2023AP2411
“[t]hat he was going to be voluntary for the blood draw, but he just wanted to
make sure that it was done by a qualified individual.”
¶10 After the officer transported Schumacher to the hospital for a blood
draw, Schumacher indicated “he no longer wanted to go forward with the blood
test.” The officer treated this as a refusal of the blood draw, so he applied for and
received a search warrant for the draw.
¶11 On cross-examination, the officer agreed he was not a drug
recognition expert; he pulled Schumacher over because of the non-functional
headlight and had not observed Schumacher’s vehicle speeding, swerving, or
deviating lanes; and Schumacher responded timely and appropriately to the
officer’s emergency lights, including parking properly on the side of the road. The
officer acknowledged that he did not note any concerns regarding Schumacher’s
ability to speak or any balance problems other than those displayed during the
field sobriety tests; Schumacher consistently stated he only had “a beer to a beer-
and-a-half” while at Maxwell’s; and Schumacher told the officer that he struck the
sign pole because “he was in the midst of a breakup with his girlfriend and had
been looking at his phone at some texts he was receiving from her.” The officer
further testified that during the HGN test, Schumacher kept his head still,
consistent with instructions, and agreed that he did not sway.
¶12 Related to the walk-and-turn test, the officer acknowledged that
Schumacher did touch heel-to-toe as instructed on fourteen of the eighteen total
steps he took and that he did not recall Schumacher ever stepping “off the line” on
any of the eighteen steps. The officer acknowledged no evidence of drugs or drug
paraphernalia was found on Schumacher’s person or in his vehicle.
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No. 2023AP2411
¶13 The officer agreed that when he read the Informing the Accused
form to Schumacher and asked him to submit to a blood test at the location of the
traffic stop, Schumacher indicated “something to the effect of I don’t like needles,
but I’ll do urine or breath,” and the officer responded by telling Schumacher he
wanted a blood test. The officer acknowledged that in most first offense cases in
the city, the primary test used is a breath test, the city has a breath testing machine
at the police department, and there was nothing preventing him from administering
that test to Schumacher the night of the arrest. The officer added that the decision
to have Schumacher do a blood test instead of a breath test “was a decision I
made.” The officer admitted that Schumacher several times reiterated his
willingness to do a breath or urine test instead of a blood test.
¶14 In response to questioning by the circuit court, the officer testified
that the damage to Schumacher’s vehicle included dislodgement of the “wheel
well cowling,” destruction of the driver’s side headlight, and “also some
significant damage on the hood with it fairly crumpled.” The officer agreed that it
“[wa]sn’t like … a bump in a parking lot.”
¶15 The circuit court denied Schumacher’s motion to dismiss the refusal
proceedings, concluding the officer did have probable cause to arrest Schumacher
for OWI and the officer’s insistence on a blood test instead of allowing
Schumacher to instead do an alternate test did not violate the constitution.
Schumacher appeals.
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No. 2023AP2411
Discussion
Probable Cause
¶16 Schumacher first asserts the circuit court erred in denying his motion
because it erroneously concluded the officer had probable cause to arrest him for
OWI. The court did not err.
¶17 Issues that a defendant may raise at a refusal hearing are limited to
(1) “whether the [defendant] was lawfully placed under arrest for [an OWI-related
offense],” (2) whether the officer properly informed the defendant of his or her
rights and responsibilities under the implied consent law, and (3) whether the
defendant “refused to permit the test.” See WIS. STAT. § 343.305(9)(a)5.a.-c. In
this case, Schumacher challenges the circuit court’s conclusions that the officer
had probable cause to arrest him—and therefore that the arrest was lawful—and
that he “refused to permit the test” when he had agreed to instead provide a urine
sample.
¶18 “In the context of a refusal hearing following an arrest for operating
a motor vehicle while intoxicated, ‘probable cause’ refers generally to that
quantum of evidence that would lead a reasonable law enforcement officer to
believe that the defendant was operating a motor vehicle while under the influence
of an intoxicant.” Washburn County v. Smith, 2008 WI 23, ¶15, 308 Wis. 2d 65,
746 N.W.2d 243. The City’s burden of persuasion is “substantially less [at a
refusal hearing] than at a suppression hearing,” see State v. Pfaff, 2004 WI App
31, ¶16, 269 Wis. 2d 786, 676 N.W.2d 562; it “only [must] show that the officer’s
account is plausible,” see State v. Wille, 185 Wis. 2d 673, 681, 518 N.W.2d 325(Ct. App. 1994). “Indeed, the court need not even believe the officer’s account. It
need only be persuaded that the [City’s] account is plausible.” See id.7
No. 2023AP2411
¶19 Whether an officer had probable cause to arrest is a question of law
we review de novo. Smith, 308 Wis. 2d 65, ¶16. Probable cause “must be
assessed on a case-by-case basis,” State v. Lange, 2009 WI 49, ¶20, 317 Wis. 2d
383, 766 N.W.2d 551, and “exists where the totality of the circumstances within
the arresting officer’s knowledge at the time of the arrest would lead a reasonable
police officer to believe, in this case, that the defendant was operating a motor
vehicle while under the influence of an intoxicant,” State v. Nordness, 128
Wis. 2d 15, 35, 381 N.W.2d 300 (1986). Probable cause is a question “based on
probabilities; and, as a result, the facts faced by the officer ‘need only be sufficient
to lead a reasonable officer to believe that guilt is more than a possibility.’”
County of Dane v. Sharpee, 154 Wis. 2d 515, 518, 453 N.W.2d 508 (Ct. App.
1990) (citation omitted).
¶20 WISCONSIN STAT. § 346.63 provides that:
(1) No person may drive or operate a motor vehicle while:
(a) Under the influence of an intoxicant, a controlled
substance, a controlled substance analog or any
combination of an intoxicant, a controlled substance and a
controlled substance analog, under the influence of any
other drug to a degree which renders him or her incapable
of safely driving, or under the combined influence of an
intoxicant and any other drug to a degree which renders
him or her incapable of safely driving.
Here, the officer arrested Schumacher based on his belief that Schumacher was
impaired by “medications or something” in addition to alcohol, which would be in
violation of § 346.63(1)(a). Based on the facts of which the officer was aware at
the time of arrest, a reasonable officer would have had probable cause to believe
Schumacher was in violation of this statute, justifying the arrest.
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No. 2023AP2411
¶21 At the time he arrested Schumacher, the officer was aware
Schumacher had been in an accident where he had run into a (presumably)
stationary sign pole. His vehicle sustained significant damage to the front driver’s
side, yet when he “peek[ed] out of the vehicle” during the traffic stop, Schumacher
was “surprised” and “unaware of how extensive the damage to the vehicle was.”
Furthermore, Schumacher had no awareness of where this recent and significant
accident took place. These facts suggest impairment was more than a possibility
because unimpaired drivers do not generally run into stationary sign poles;
furthermore, a reasonable vehicle operator who sustained such significant damage
just feet in front of him on his vehicle would tend to have a better awareness of the
extent of the damage and the location at which it had recently occurred.
¶22 While speaking with Schumacher, the officer noticed the odor of
intoxicants and observed he had “glassy, bloodshot eyes,” all common indicia of
impairment. Administering field sobriety tests to Schumacher, the officer
observed four out of six possible clues of impairment on the HGN test, four out of
eight clues on the walk-and-turn test, and one out of four clues on the one-legged-
stand test. The PBT administered to Schumacher read .037, which, based on the
officer’s experience and the number of clues of intoxication observed with the
field sobriety tests, led the officer to believe “medications or something,” such as
other drugs, in addition to alcohol “was … causing additional impairment,” which
is why the officer insisted on a blood test following the arrest. Essentially,
because Schumacher appeared to be more impaired than a person with a .037
blood alcohol reading would normally be, the officer rationally concluded that
other substances were likely contributing to his impairment.
¶23 While, understandably, Schumacher emphasizes his “normal”
actions on the night of his arrest that would tend to lead a person to believe he was
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No. 2023AP2411
not impaired—e.g., the officer directly observed no unsafe driving, Schumacher
did not slur his speech, and others—those do not somehow wipe away the indicia
of impairment of which the officer was aware. As indicated, it is not normal for
an unimpaired driver—even one looking at texts from a girlfriend, if that be the
truth—to run into a stationary sign pole which, based upon the location of the
damage on the vehicle, would have been right in front of Schumacher when he
drove toward it and struck it. Furthermore, it would be unusual indeed for an
unimpaired driver to smell of alcohol, have glassy, bloodshot eyes, sustain
significant damage to the front driver’s side of his vehicle without knowledge or
awareness of the extent of the damage and the location where it had occurred, and
perform poorly on his field sobriety tests. Here, “a reasonable law enforcement
officer [would] believe that [Schumacher] was operating a motor vehicle while
under the influence of an intoxicant.” See Smith, 308 Wis. 2d 65, ¶15. A
reasonable officer would believe it was “more than a possibility” that Schumacher
had violated WIS. STAT. § 346.63(1)(a) by operating his vehicle while “[u]nder the
influence of … any combination of an intoxicant, a controlled substance and a
controlled substance analog” or “under the combined influence of an intoxicant
and any other drug to a degree which renders him or her incapable of safely
driving,” justifying his arrest. See Sharpee, 154 Wis. 2d at 518. The circuit court
correctly concluded the officer had probable cause to arrest Schumacher.
Refusal to Submit to a Blood Test
¶24 Although somewhat reluctantly, Schumacher initially agreed to
submit to a blood test, as requested by the officer. Then, after arriving at the
hospital, and as time was ticking—thus compromising the evidentiary value of any
sample, see Skinner v. Railway Lab. Execs.’ Ass’n, 489 U.S. 602, 623 (1989)
(“[A]lcohol and other drugs are eliminated from the bloodstream at a constant
10
No. 2023AP2411
rate.”); State v. Dieter, 2020 WI App 49, ¶12, 393 Wis. 2d 796, 948 N.W.2d 431(“Alcohol dissipates as it is absorbed in the bloodstream and metabolized;
therefore, the passage of time between alleged intoxicated driving and the
collection of a blood sample affects the quantity of alcohol that testing will
reveal.”); State v. Parisi, 2016 WI 10, ¶41, 367 Wis. 2d 1, 875 N.W.2d 619(recognizing “the rapid dissipation of heroin in the blood”)—he changed his mind
and refused to provide a blood sample, but again indicated a willingness to take a
breath or urine test.3
¶25 As indicated, the arresting officer had probable cause to believe
Schumacher was impaired by a combination of alcohol and drugs of some kind—
the officer indicated that the PBT test suggested a lower level of alcohol in
Schumacher’s system than would explain his compromised condition. As
Schumacher admits, the officer’s concern that impairing drugs might be in
Schumacher’s system is why the officer sought a blood test instead of the breath
test available at the police department.4 As we have stated,
[w]hile it is true alcohol was the only impairing substance
the officer who arrested Coffee detected at the time of
arrest, the offense for which he was arrested, i.e., the
“offense of arrest,” was “[o]perating under [the] influence
of intoxicant or other drug,” WIS. STAT. § 346.63 (2017-
18). A driver can, of course, violate this statute by being
3
At various points in his briefing, Schumacher appears to suggest he is challenging the
reasonableness of the blood test in light of his apparent willingness to instead take a urine or
breath test. His developed arguments, however, only address whether the officer’s insistence on
a blood test was reasonable in light of his apparent willingness to provide a urine test. Because
Schumacher develops arguments only with regard to the reasonableness of the ordered blood test
in light of his apparent willingness to submit to a urine test, that is the issue we address.
4
Schumacher acknowledges that “[t]he ostensible concern in this matter was that he was
under the influence of a controlled substance and that is why a sample of his blood was being
sought.” (Emphasis added.)
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No. 2023AP2411
impaired solely by alcohol. However, the offense can also
be committed by a driver being impaired by a single legal
or illegal drug, a combination of drugs, or a combination of
one or more drugs with alcohol. See § 346.63(1)(a).
Precisely what substance or combination of substances are
the cause of the impaired condition an officer observes on
the scene is not always readily known. While an officer
may smell a strong, weak, or moderate odor of alcohol,
obviously indicating that alcohol is likely at least one
substance contributing to the driver’s impaired condition,
this initial observation does not always tell the full story. It
is not unusual for a driver’s impaired condition to be
caused by a potpourri of substances—some legal, some
illegal, some easily detected, some not—sometimes
including alcohol, sometimes not. All such substances are
relevant to proving that the driver is in violation of
§ 346.63(1)(a) due to driving while impaired by either
drugs, alcohol, or both.
State v. Coffee, 2019 WI App 25, ¶11, 387 Wis. 2d 673, 929 N.W. 245 (footnotes
omitted), aff’d, 2020 WI 53, 391 Wis. 2d 831, 943 N.W.2d 845. As our supreme
court has stated:
Securing a breath test rather than a blood test may not be
satisfactory to law enforcement because an officer may
want to determine whether the person is also under the
influence of controlled substances. Blood samples are the
most direct means of measuring alcohol concentration in
the blood and of obtaining evidence of controlled
substances in the blood. A breath test is not likely to reveal
the presence of a controlled substance.
State v. Krajewski, 2002 WI 97, ¶40, 255 Wis. 2d 98, 648 N.W.2d 385 (emphasis
added).
¶26 Nonetheless, Schumacher asserts that it was unreasonable under the
Fourth Amendment for the officer to “request that [he] provide a sample of his
blood for evidentiary analysis when he was willing to provide the officer with a
urine specimen.” He tries mightily to convince us that the urine test he told the
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No. 2023AP2411
officer he was willing to take5 would have been an even better evidentiary option
than the blood test, professing “that the dissipation of controlled substances,
whether of the restricted variety or not, is not rapid from urine” and “when it
comes to testing a person for the ingestion of a variety of controlled substances,
urine testing is actually better than blood testing in terms of sublimating any
exigency attendant to ‘rapid dissipation.’” Schumacher’s efforts, however, go
nowhere as neither party presented any evidence at the hearing regarding urine
testing, including whether a urine test was even a feasible option for the officer to
pursue the night of Schumacher’s arrest. And, Schumacher has directed us to
nothing suggesting it was the City’s burden to prove urine testing was not a
feasible option.
5
The City asserts that “[n]either Birchfield [v. North Dakota, 579 U.S. 438, 447 n.1
(2016)], nor any case subsequent to it, imposed upon OWI investigations a ‘least intrusive
method’ requirement as to a search conducted pursuant to a warrant,” citing City of Ontario v.
Quon, 560 U.S. 746, 763 (2010) (“[The United States Supreme Court] has ‘repeatedly refused to
declare that only the least intrusive search practicable can be reasonable under the Fourth
Amendment.” (citation omitted)). Rather, the City asserts that “Birchfield, and cases subsequent
to it, have only held that a blood draw cannot be administered as a warrantless search incident to
arrest absent exigent circumstances.” (Emphasis added.)
Schumacher disagrees, asserting that as to the “less intrusive” method requirement, it
makes no constitutional difference whether the search is conducted pursuant to a warrant, as in
this case, “incident to arrest, via an implied consent statute, [or] via exigent circumstances.” He,
however, provides no legal support for this position.
We agree with the City that “[t]here is no constitutional requirement that police … seek a
warrant for[] the least intrusive means of obtaining evidence. Because no such requirement
exists, there is no basis for Schumacher’s claim that the officer was ‘constitutionally
unreasonable’ to seek a warrant for a blood draw.” And, as the City further points out, Birchfield
“reaffirmed that ‘where substances other than alcohol impair the driver’s ability to operate a car
safely … nothing prevents the police from seeking a warrant [for a blood draw].’” At the end of
the day, a judge issued a search warrant for the blood draw in this case, and Schumacher does not
challenge the validity of that warrant.
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No. 2023AP2411
¶27 Even if the parties had presented evidence demonstrating the
feasibility of urine testing, we reject Schumacher’s conclusory assertion that the
collection of a urine sample is less intrusive than a blood draw. In Birchfield v.
North Dakota, 579 U.S. 438, 474 (2016), the United States Supreme Court
compared blood and breath tests, concluding that blood tests “are significantly
more intrusive [than breath tests], and their reasonableness must be judged in light
of the availability of the less invasive alternative of a breath test.” Schumacher
invites us to simply substitute “urine tests” in place of “breath tests”; we reject this
invitation because a urine test is itself more intrusive than a breath test.
¶28 The City asserts that the collection of a urine sample implicates
privacy concerns that the collection of a breath sample does not, specifically
noting that a breath test may be performed in front of members of the public, but a
urine test may not. In support of its assertion, the City cites to the United States
Supreme Court’s statement that “[t]here are few activities in our society more
personal or private than the passing of urine…. It is a function traditionally
performed without public observation; indeed, its performance in public is
generally prohibited by law as well as by social custom.” Skinner, 489 U.S. at
617 (citation omitted). The Skinner Court further stated that urine tests are the
performance of “an excretory function traditionally shielded by great privacy,”
and as such “raise concerns not implicated by blood or breath tests.” Id. at 626
(emphasis added). Indeed, the City directs us to a post-Birchfield decision in
which the Minnesota Supreme Court held that “in terms of the impact on an
individual’s privacy, a urine test is more like a blood test than a breath test.” State
v. Thompson, 886 N.W.2d 224, 232 (Minn. 2016). While Schumacher asserts that
urine testing is just as “less invasive” than blood testing as breath testing is, he
makes no attempt, in either his brief-in-chief or reply brief, to develop an
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No. 2023AP2411
argument in support of his just-substitute-in-urine-test-for-breath-test position by
either directing us to relevant case law or comparing privacy and intrusiveness
concerns of a urine test with those of a breath test.
¶29 We agree with the City that a urine test has privacy concerns beyond
those associated with a breath test—for example, urine is part of the subject’s
body (albeit a waste product) that is being retained by law enforcement and an
officer must observe the passing of the urine from the subject’s body, requiring
observation of the subject’s genitalia. See WISCONSIN DEP’T OF JUSTICE,
PHYSICAL EVIDENCE HANDBOOK 231 (9th ed. 2017).6 We decline Schumacher’s
self-serving and unsupported invitation to treat a urine test as constitutionally
identical to a breath test for purposes of challenging the reasonableness of the
officer’s insistence on a blood test.
¶30 As the United States Supreme Court recognized in Birchfield, “[o]ne
advantage of blood tests [as opposed to breath tests] is their ability to detect not
just alcohol but also other substances that can impair a driver’s ability to operate a
car safely.” Birchfield, 579 U.S. at 474. “A breath test cannot do this, but police
have other measures at their disposal when they have reason to believe that a
motorist may be under the influence of some other substance (for example, if a
breath test indicates that a clearly impaired motorist has little if any alcohol in his
blood).” Id. (emphasis added). The Court continued, “[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
6
A copy of this handbook is available at
https://www.doj.state.wi.us/sites/default/files/dles/clab-forms/2021_physical-evidence-handbook-
2017.pdf.
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No. 2023AP2411
exception to the warrant requirement when there is not.” Id. at 474-75 (emphasis
added). Notably, while the Court recognized urine tests as a third type of test
option occasionally utilized by law enforcement with drunk drivers,7 it stated that
“[n]othing prevents” police from seeking a warrant for a blood test when there is
probable cause to believe a person is under the influence of drugs or a combination
of drugs and alcohol. Even though the cases before it did not involve urine tests,
the Court could have hedged its “[n]othing prevents” language with some
indication that the potential availability of a urine test could affect the equation
related to the constitutionality of blood tests; yet, it did not. Instead, it only noted
in a footnote that “urine tests appear to be less common in drunk-driving cases
than breath and blood tests.” Id. at 447 n.1.8
¶31 The officer’s insistence on a blood test is also supported by the
statutes, none of which Schumacher challenges. WISCONSIN STAT. § 343.305(2)
provides that “[t]he law enforcement agency by which the officer is employed …
may designate which of the tests shall be administered first.” Paragraph (3)(a) of
that same statute also provides that
[u]pon arrest of a person for violation of [an OWI-related
offense] … a law enforcement officer may request the
person to provide one or more samples of his or her breath,
blood or urine…. Compliance with the request for one type
of sample does not bar a subsequent request for a different
type of sample.
7
Early in its decision, the Birchfield Court noted that “[i]n addition [to blood and breath
tests], BAC may be determined by testing a subject’s urine, which [like a breath test] also
requires the test subject’s cooperation.” 579 U.S. at 447 n.1.
8
As the City points out, in State v. Forrett, 2022 WI 37, ¶8 n.4, 401 Wis. 2d 678, 974
N.W.2d 422, our supreme court recently noted that “[n]either the [United States] Supreme Court
nor this court has addressed the Fourth Amendment implications of a urine test.”
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No. 2023AP2411
Sec. 343.305(3)(a). Based on this language, the law enforcement agency is
authorized by statute to determine what type of test to administer to an OWI
suspect. Additionally, § 343.305(4), the statutorily required language for the
implied consent warnings, provides in part:
This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine
the concentration of alcohol or drugs in your system. If any
test shows more alcohol in your system than the law
permits while driving, your operating privilege will be
suspended. If you refuse to take any test that this agency
requests, your operating privilege will be revoked and you
will be subject to other penalties….
If you take all the requested tests, you may choose to
take further tests. You may take the alternative test that
this law enforcement agency provides free of charge. You
also may have a test conducted by a qualified person of
your choice at your expense. You, however, will have to
make your own arrangements for that test.
(Emphases added.) The above language also indicates that the law enforcement
agency, not the OWI suspect, decides which test will be administered to the
suspect. The officer here read the Informing the Accused form to Schumacher and
decided to request a blood test. Only “[i]f [Schumacher took] all the requested
tests” could he have chosen to take an “alternative test,” which test “is not a test of
the person’s choice in lieu of the test requested by the officer. It is an additional
test.” See Krajewski, 255 Wis. 2d 98, ¶¶21, 36 n.15 (“Wisconsin’s implied
consent law does not grant drivers a statutory right to choose which test will be
administered. In Wisconsin, a driver impliedly consents to take the test requested
by a law enforcement officer.”).
¶32 The Krajewski court made clear “that a person’s agreement to
submit to a test of the person’s choice does not … render unconstitutional a
nonconsensual test of the officer’s choice.” Id., ¶63 (emphasis added). Thus, the
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No. 2023AP2411
officer’s decision in that case to proceed with requesting a blood draw even
though the defendant stated he feared needles and indicated he would be willing to
give either a breath or urine sample was “reasonable and constitutional.” Id.,
¶¶63-64. The Krajewski court pre-emptively put the nail in the coffin of
Schumacher’s appeal by further unambiguously stating that it “will not vest
drivers who have been arrested for operating under the influence with the authority
to veto constitutional searches to vindicate their personal choice in police
procedure.” Id., ¶43. Even aside from the other shortcomings of Schumacher’s
appeal, we are bound by Krajewski. Moreover, we do not see Birchfield as in any
way undermining Krajewski.
¶33 It is Schumacher’s burden on appeal to show how the circuit court
erred. See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d 448, 899
N.W.2d 381 (“[O]n appeal ‘it is the burden of the appellant to demonstrate that the
[circuit] court erred.’” (second alteration in original; citation omitted)). He has not
satisfied this burden.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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