State v. Adam M. Blackman , 377 Wis. 2d 339 ( 2017 )

2017 WI 77SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP450-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Appellant,
v.
Adam M. Blackman,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 635, 886 N.W.2d 94PDC No: 2016 WI App 69 - Published
OPINION FILED: July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Fond du Lac
JUDGE: Gary R. Sharpe
JUSTICES:
CONCURRED: ZIEGLER, J. concurs, joined by GABLEMAN, J.
(opinion filed).
DISSENTED: ROGGENSACK, C.J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
by Dennis M. Melowski and Melowski & Associates, LLC, Sheboygan,
with whom on the briefs were Chad A. Lanning and Lubar &
Lanning, LLC, West Bend, and oral argument by Dennis M.
Melowski.
For the plaintiff-appellant there was a brief by Michael C.
Sanders, assistant attorney general, and Brad D. Schimel,
attorney general, and an oral argument by Michael C. Sanders.
2017 WI 77NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP450-CR
(L.C. No. 2013CF659)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v.
JUL 7, 2017
Adam M. Blackman,
Diane M. Fremgen
Defendant-Respondent-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a
published decision of the court of appeals reversing a decision
of the Circuit Court for Fond du Lac County, Gary R. Sharpe,
Judge.1 The circuit court granted Adam M. Blackman's motion to
suppress the results of a blood test obtained under Wisconsin's
1
State v. Blackman, 2016 WI App 69, 371 Wis. 2d 635, 886
N.W.2d 94.
No. 2015AP450-CR
implied consent law, Wis. Stat. § 343.305(3)(ar)2. (2013-14).2
The court of appeals reversed the order of the circuit court.
¶2 The issue presented is whether the consequences for
refusing to submit to a blood test requested under Wis. Stat.
§ 343.305(3)(ar)2. were misrepresented to Blackman and, if so,
whether that misrepresentation rendered Blackman's consent to
the blood draw coerced, that is, not freely and voluntarily
given under the Fourth Amendment.3 Furthermore, if the court
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
Blackman presented three issues in his petition for
review:
1. Whether the circuit court properly suppressed Mr.
Blackman's warrantless blood test because he was
unconstitutionally coerced into taking the test when
he was read the informing the accused form which
incorrectly told him that he faced a revocation and
other penalties if he refused chemical testing, when
he was actually only facing a possible arrest?
2. Whether the circuit court below properly suppressed
Mr. Blackman's blood test where Mr. Blackman was
unconstitutionally coerced into taking the blood test,
under the totality of the circumstances, when he
acquiesced to the unlawful assertion by the officer
that they take blood samples in cases like his——in
addition to being told that he faced a revocation and
other penalties if he refused?
3. Whether Section 343.305(3)(ar)2. is
unconstitutional on its face and as-applied because it
coerces consent to otherwise unconstitutional searches
without due process of law?
(continued)
2
No. 2015AP450-CR
concludes that Blackman's consent to the blood draw was not
voluntary consent under the Fourth Amendment, the issue becomes
whether the court should apply the good faith exception to the
exclusionary rule and admit the evidence of the blood alcohol
concentration from the blood draw.
¶3 For the reasons set forth, we reverse the decision of
the court of appeals, affirm the suppression order of the
circuit court, and decline to apply the good faith exception to
the exclusionary rule in the instant case.
¶4 The Fourth Amendment ordinarily requires a search
warrant for a blood draw unless one of the exceptions to the
warrant requirement exists. Birchfield v. North Dakota, 136 S.
Ct. 2160, 2173 (2016). In the instant case, the only exception
to the warrant requirement at issue is whether Blackman's
consent to the blood draw was given freely and voluntarily under
the Fourth Amendment. When the legality of a warrantless search
is based on the consent of the defendant, that consent must be
freely and voluntarily given. State v. Johnson, 2007 WI 32,
¶16, 299 Wis. 2d 675, 729 N.W.2d 182 (citing State v. Phillips,
218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998); Bumper v. North
Carolina, 391 U.S. 543, 548 (1968)).
We need not and do not address the second and third issues
presented. The second issue is substantially the same as the
first issue. Our decision on the first issue is dispositive of
the instant case. Accordingly, we need not and do not address
the third issue challenging the constitutionality of Wis. Stat.
§ 343.305(3)(ar)2.
3
No. 2015AP450-CR
¶5 Blackman submitted to a blood draw after Deputy
Sheriff John Abler stated the consequences of refusing to submit
to a test: Blackman (who was not suspected of a drunk-driving
offense) was told that his operating privilege would be revoked
if he refused to submit to a blood draw. This information was
not accurate. A driver who was not suspected of a drunk-driving
offense would prevail at a refusal hearing and his operating
privilege would not be revoked. See Wis. Stat.
§ 343.305(9)(a)5.a.
¶6 For the reasons set forth, we conclude that the State
did not prove by clear and convincing evidence that Blackman's
consent to the blood draw was valid, that is, that it was freely
and voluntarily given under the Fourth Amendment. Because the
exclusionary rule's deterrent effect will be served in instant
case by suppressing evidence of Blackman's blood test, we
decline to apply the good faith exception to the exclusionary
rule. The results of Blackman's blood draw are therefore
suppressed.
¶7 Accordingly, the cause is remanded to the circuit
court to reinstate its order suppressing the evidence and for
further proceedings not inconsistent with the decision of this
court.
¶8 Our decision is organized as follows:
I. We state the facts.
II. We state the standard of review.
III. Our analysis proceeds as follows:
4
No. 2015AP450-CR
(A) We examine Wis. Stat. § 343.305 to determine whether
license revocation is a statutory consequence had
Blackman refused to submit to a chemical test under
Wis. Stat. § 343.305(3)(ar)2. We conclude that it is
not.
(B) We determine whether Blackman's consent to the blood
draw was obtained through misrepresentation,
rendering his consent coerced, that is, not voluntary
and free consent under the Fourth Amendment. We
conclude that the consent was obtained through
misrepresentation and was coerced.
(C) We determine whether to apply the good faith
exception to the exclusionary rule in the instant
case. We conclude that the good faith exception does
not apply in the instant case.
I
¶9 For purposes of the motion to suppress evidence of
Blackman's blood test, the statement of facts is brief and not
in dispute.
¶10 At about 10 A.M. on the morning of June 22, 2013,
Blackman was driving his car in a northeast direction on County
Highway WH in the Town of Taycheedah, Fond du Lac County.
Blackman made a left turn onto Lakeview Road. As he was
turning, his car collided with a bicyclist travelling in a
southwest direction on County Highway WH.
¶11 A witness at the scene explained that Blackman's car
collided with the bicyclist, causing the bicyclist to "fly up in
5
No. 2015AP450-CR
the air, over the car, and land on the roadway." The bicyclist
suffered great bodily harm, including a mandibular fracture,
fractures to both forearms, rib fracture, sinus fracture, a C6
vertebrae fracture, liver laceration, lung contusion, and a
subdural hemorrhaging brain bleed.
¶12 Blackman and the witness both stopped to check on the
bicyclist.
¶13 Shortly after the collision, Fond du Lac Deputy
Sheriff John Abler was dispatched to the scene.
¶14 Deputy Sheriff Abler testified at the suppression
hearing that he had reason to believe that Blackman may have
violated a state or local traffic law by failing to yield to the
bicyclist and that the bicyclist sustained great bodily harm.
¶15 Deputy Sheriff Abler also testified that before the
blood test was administered he did not have reason to believe
that Blackman was under the influence of intoxicants. Deputy
Sheriff Abler testified in response to questions by the
prosecutor about any signs of intoxication as follows:
Q: You noticed no odor of intoxicants coming from him?
A: That's correct.
Q: You noticed no slurred speech
A: That is correct.
Q: You noticed no bloodshot eyes?
A: Correct.
Q: You noticed no glassy eyes?
A: Correct.
6
No. 2015AP450-CR
Q: You noticed no glassy eyes?
A: Correct.
Q: Okay. You noticed no signs with his balance or
coordination?
A: I did not notice anything.
Q: You did not notice any mental impairment on his
part, meaning it didn't seem like he was intoxicated
or impaired in any way. Would you agree?
A: I agree.
Q: Okay. And, in fact, during your entire contact with
Mr. Blackman, you never observed anything that you
would have attributed to even the consumption of
alcohol. Would you agree?
A: I agree.
¶16 Despite the absence of any signs that Blackman was
intoxicated, Deputy Sheriff Abler testified that he explained to
Blackman that it was "standard operating procedure for the
department, when drivers are involved in accidents of a serious
nature, to obtain a blood sample." Blackman went to the
hospital and submitted to a blood test. Although Blackman rode
in Deputy Sheriff Abler's squad car to the hospital, he was not
considered under arrest.
¶17 At the hospital, Deputy Abler read the statutory
Informing the Accused Form4 to Blackman verbatim and requested
that Blackman submit to a blood draw. The test of his blood
revealed an alcohol concentration of .104.
4
The form is set forth verbatim in Wis. Stat. § 343.305(4).
7
No. 2015AP450-CR
¶18 The State charged Blackman with multiple offenses:
Reckless driving causing great bodily harm,5 injury by
intoxicated use of a vehicle,6 injury by use of a vehicle with a
prohibited alcohol concentration (PAC),7 operating a motor
vehicle while under the influence of an intoxicant (OWI) first
offense,8 and operating a motor vehicle with a PAC.9
¶19 At a pretrial suppression hearing, the circuit court
suppressed the evidence obtained from the blood draw on the
ground that Blackman's consent was obtained by misstatements
about the consequences of his refusal to take the test and
therefore his consent was coerced.
¶20 According to the circuit court, the Informing the
Accused Form under Wis. Stat. § 343.305(4) misstates the law by
declaring that the refusal to take a test under
§ 343.305(3)(ar)2. will lead to revocation of a driver's
operating privilege. The circuit court concluded that
revocation for a refusal under Wis. Stat. § 343.305(3)(ar)2.
would be "statutorily unenforceable" because the issues at a
refusal hearing are "limited to" whether the officer had
probable cause to arrest for an OWI-related offense, whether the
5
Wis. Stat. § 346.62(4).
6
Wis. Stat. § 940.25(1)(a).
7
Wis. Stat. § 940.25(1)(b).
8
Wis. Stat. § 346.63(2)(a)1.
9
Wis. Stat. § 346.63(2)(a)2.
8
No. 2015AP450-CR
officer complied with and read the Informing the Accused form,
and whether the driver refused to permit the test.
¶21 Because the Deputy Sheriff had no probable cause to
arrest Blackman for an OWI-related offense, the circuit court
concluded that "if the statutory scheme does not support a
revocation that is threatened, this Court finds that coercion
has occurred." The circuit court ordered the evidence of the
blood test suppressed.
¶22 The court of appeals reversed the circuit court's
order. It ruled, relying on State v. Padley, 2014 WI App 65,
354 Wis. 2d 545, 849 N.W.2d 867, that Blackman "impliedly
consented" to the blood draw by driving in Wisconsin; that
Blackman had a choice to submit a sample (actual consent) or to
withdraw consent (refusal); that Blackman freely chose not to
withdraw consent; that the Deputy Sheriff's misstatement of the
statute did not "transform Blackman's freely given actual
consent under Wisconsin's implied consent law into a coerced
submittal." State v. Blackman, 2016 WI App 69, ¶¶2, 5, 10-12,
371 Wis. 2d 635, 886 N.W.2d 94.
¶23 The concurring opinion in the court of appeals
acknowledged that Blackman had a "legitimate gripe" about the
form read to him. According to the concurrence, even if the
form is "technically correct," it is "incomplete and imprecise,
9
No. 2015AP450-CR
no doubt" but "not inaccurate," and the "threat of revocation
was real, even if its longer term effects were in doubt."10
¶24 For the reasons set forth, we reverse the decision of
the court of appeals, affirm the circuit court's order, and
remand the cause to the circuit court for further proceedings
not inconsistent with the decision of this court.
II
¶25 We first address the standard of review. "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. We review a
question of constitutional fact under a two-step inquiry:
First, we will uphold the circuit court's findings of fact
unless those findings are clearly erroneous. Second, we conduct
an independent, de novo analysis of the application of
constitutional principles to the facts found. State v.
Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463.
¶26 We are also asked to interpret and apply Wis. Stat.
§ 343.305, the implied consent law. Interpretation and
application of a statute is generally a question of law that
this court decides independently of the circuit court or court
of appeals, but benefiting from their analyses. State v.
Harrison, 2015 WI 5, ¶37, 360 Wis. 2d 246, 858 N.W.2d 372; State
v. DuBose, 2005 WI 126, ¶16, 285 Wis. 2d 143, 699 N.W.2d 582.
10
Blackman, 371 Wis. 2d 635, ¶¶16, 18 (Hagedorn, J.,
concurring).
10
No. 2015AP450-CR
III
¶27 As we stated earlier, the issue presented is whether
the consequences for refusing to submit to a blood test
requested under Wis. Stat. § 343.305(3)(ar)2. were
misrepresented to Blackman and, if so, whether that
misrepresentation rendered Blackman's consent to the blood draw
coerced under the Fourth Amendment. We answer both parts of
this question in the affirmative.
A
¶28 We first consider the statutory provisions.
¶29 Under Wis. Stat. § 343.305(2), any person who drives
or operates a motor vehicle upon the public highways of
Wisconsin is "deemed to have given consent to one or more tests
of his or her breath, blood, or urine . . . when requested to do
so by a law enforcement officer under [Wis. Stat. § 343.305]
sub. (3)(a) or (am) or when required to do so under sub. (3)(ar)
or (b)."
¶30 In the instant case, Deputy Sheriff Abler requested
Blackman to submit to a blood draw pursuant to Wis. Stat.
§ 343.305(3)(ar)2., which provides in relevant part as follows:
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, the
officer may request the operator to provide one or
more samples of his or her breath, blood, or
urine . . . . If a person refuses to take a test under
this subdivision, he or she may be arrested under par.
(a). (Emphasis added.)
11
No. 2015AP450-CR
¶31 Five observations about Wis. Stat. § 343.305(3)(ar)2.:
¶32 First, Wis. Stat. § 343.305(3)(ar)2. provides that if
the driver refuses to take a test, he or she may be arrested.11
Blackman's blood was drawn for a test. He was not arrested.
¶33 Second, Wis. Stat. § 343.305(3)(ar)2. does not provide
that if the driver refuses to take a test, the driver's
operating privilege will be revoked.
¶34 Third, under Wis. Stat. § 343.305(3)(ar)2., unlike
under other provisions of § 343.305, an officer may request a
blood draw without having a scintilla of a suspicion that the
driver is intoxicated. The officer need have reason to believe
only that a driver violated a state or local traffic law and was
in an accident that caused great bodily harm.12
¶35 Fourth, the State argues that if Blackman were
arrested for refusing to take a test under Wis. Stat.
11
Upon a Wis. Stat. § 343.305(3)(ar)2. refusal, the person
may be arrested, and asked to submit to a test under
§ 343.305(3)(a). A refusal under § 343.305(3)(a) will lead to
revocation and "other penalties" under § 343.305(9)(a): "If a
person refuses to take a test under sub. (3)(a), the law
enforcement officer shall immediately prepare a notice of intent
to revoke . . . ."
In discussing arrest in the instant case, the circuit court
exclaimed: "The question of the century is arrested for what?"
12
In 2009, the legislature added Wis. Stat.
§ 343.305(3)(ar)2. to the implied consent law. See 2009 Wis.
Act 163. Prior to this Act, a law enforcement officer was
authorized to request that a driver submit to a test only after
the driver had been arrested for an OWI-related violation or the
officer had probable cause to believe the driver was under the
influence. See Wis. Stat. § 343.305(3)(a)-(b) (2006-07).
12
No. 2015AP450-CR
§ 343.305(3)(ar)2., and if the officer then requested a sample
under § 343.305(3)(a), and if Blackman refused to give a sample,
the officer would be required to prepare a notice of intent to
revoke Blackman's operating privilege by court order under
§ 343.305(9)(a). Thus the State argues that revocation is
ultimately available under § 343.305(3)(ar)2. through
§§ 343.305(3)(a) and 343.305(9)(a).13
¶36 Fifth, Wis. Stat. § 343.305(4) sets forth the text
that a law enforcement officer shall read to a person from whom
a test specimen is requested under Wis. Stat. § 343.305(3)(a),
(am), or (ar). We refer to the text as the "Informing the
Accused" form.
¶37 Deputy Sheriff Abler read the full text of the form to
Blackman as provided in Wis. Stat. § 343.305(4) as follows:
13
Wisconsin Stat. § 343.305(3)(a) provides in relevant
part:
[U]pon 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). Compliance with a request for one type of sample
does not bar a subsequent request for a different type
of sample.
Wisconsin Stat. § 343.305(9)(a) provides in relevant part:
(9) Refusal; Notice and Court Hearing. (a) If a
person refuses to take a test under sub. (3)(a), the
law enforcement officer shall immediately prepare a
notice of intent to revoke, by court order under sub.
(10) . . . .
13
No. 2015AP450-CR
Wis. Stat. § 343.305(4) Information. [At the time
that a chemical test specimen is requested under sub.
(3)(a), (am), or (ar), the law enforcement officer
shall read the following to the person from whom the
test specimen is requested]:[14]
You have either been arrested for an offense that
involves driving or operating a motor vehicle while
under the influence of alcohol or drugs, or both, or
you are the operator of a vehicle that was involved in
an accident that caused the death of, great bodily
harm to, or substantial bodily harm to a person, or
you are suspected of driving or being on duty time
with respect to a commercial motor vehicle after
consuming an intoxicating beverage.
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. The test results or the
fact that you refused testing can be used against you
in court.
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.
If you have a commercial driver license or were
operating a commercial motor vehicle, other
consequences may result from positive test results or
from refusing testing, such as being placed out of
service or disqualified. (Emphasis added.)
14
We include this introductory material to demonstrate that
the legislature requires a law enforcement officer to read the
full text. We assume that the law enforcement officer did not
read this introductory material to Blackman.
14
No. 2015AP450-CR
¶38 The form differs from Wis. Stat. § 343.305(3)(ar)(2),
the statute applicable in the instant case. The form states
that if a driver refuses to take any test under
§ 343.305(3)(ar)2., the driver's "operating privilege will be
revoked" and the driver "will be subject to other penalties."
The statute states only that if a driver refuses to take any
test under § 343.305(3)(ar)2. the driver may be arrested. The
form, therefore, does not comport with § 343.305(3)(ar)2. The
proper advice to Blackman under § 343.305(3)(ar)2. was that his
operating privilege would be revoked if he failed to request a
refusal hearing.
¶39 Blackman contends that the text of the form applied to
him is erroneous as a matter of law, misrepresented the
consequences if he refused a blood test, and rendered his
consent to the blood test coerced consent under the Fourth
Amendment.
¶40 We agree with Blackman that revocation of the
operating privilege is unenforceable against a driver who has
refused a test under Wis. Stat. § 343.305(3)(ar)2. if the driver
requests a refusal hearing.
¶41 Wisconsin Stat. § 343.305(9)(a) provides the penalty
for refusing a post-arrest request for a chemical test under
§ 343.305(3)(a); this is not the penalty for refusing to take a
test under Wis. Stat. § 343.305(3)(ar)2. Section 343.305(9)(a)
states in part:
If a person refuses to take a test under sub. (3)(a),
the law enforcement officer shall immediately prepare
15
No. 2015AP450-CR
a notice of intent to revoke, by court order under
sub. (10), the person's operating privilege.15
¶42 Following receipt of notice of the State's intent to
revoke his or her operating privilege pursuant to Wis. Stat.
§ 343.305(9)(a), the driver may request "a hearing on the
revocation within 10 days . . . . If no request for a hearing is
received within the 10-day period, the revocation commences 30
days after the notice is issued." Wis. Stat. § 343.305(9)(a)4.
See also § 343.305(10)(a).
¶43 Regarding the refusal hearing, Wis. Stat.
§ 343.305(9)(a)5. limits the issues as follows:
5. [The] issues of the hearing are limited to:
a. Whether the officer had probable cause to
believe the person was driving or operating a
motor vehicle while under the influence of
alcohol, a controlled substance or a controlled
substance analog or any combination of alcohol, a
controlled substance and a controlled substance
15
Under Wis. Stat. § 343.305(10)(a), the circuit court
shall revoke the driver's license only after it determines that
the driver improperly refused to take a test or that the driver
did not request a refusal hearing. Section 343.305(10)(a)
provides:
(a) If the court determines under sub. (9)(d) that a
person improperly refused to take a test or if the
person does not request a hearing within 10 days after
the person has been served with the notice of intent
to revoke the person's operating privilege, the court
shall proceed under this subsection. If no hearing
was requested, the revocation period shall begin 30
days after the date of the refusal. If a hearing was
requested, the revocation period shall commence 30
days after the date of refusal or immediately upon a
final determination that the refusal was improper,
whichever is later.
16
No. 2015AP450-CR
analog, under the influence of any other drug to
a degree which renders the person incapable of
safely driving, or under the combined influence
of alcohol and any other drug to a degree which
renders the person incapable of safely driving,
having a restricted controlled substance in his
or her blood, or having a prohibited alcohol
concentration . . . .
b. Whether the officer complied with sub. (4).[16]
c. Whether the person refused to permit the
test. . . . (Emphasis added.)
¶44 Were Blackman to have had a refusal hearing, the
issues would have been "limited to" the State proving (a) that
the officer had probable cause to believe that the driver was
driving or operating a motor vehicle "under the influence"; (b)
that the officer complied with reading the Informing the Accused
form set forth in § 343.305(4); and (c) that the driver refused
to permit the blood test. If the State did not prove all three
issues——and in the instant case, it could not prove that the
Deputy Sheriff had probable cause to believe that Blackman was
driving or operating a motor vehicle while under the influence
of alcohol——Blackman's operating privilege would not have been
revoked at the refusal hearing.
¶45 The State challenges this interpretation and
application of Wis. Stat. § 343.305.
¶46 The State contends that if the driver refuses a test
under Wis. Stat. § 343.305(3)(ar)2., which, as we stated
16
Wisconsin Stat. § 343.305(4) pertains to reading the
Informing the Accused form to the driver.
17
No. 2015AP450-CR
previously, is not an OWI-related offense, the officer can
arrest the driver. On arrest, the driver comes under
§ 343.305(3)(a), and the officer can request the driver to
submit to a blood test under Wis. Stat. § 343.305(3)(a). If the
driver refuses to submit to a blood test under § 343.305(3)(a),
the officer may issue a notice of intent to revoke the person's
operating privilege. Wis. Stat. § 343.305(9)(a).
¶47 The State acknowledges that Deputy Sheriff Abler did
not arrest Blackman, did not proceed under Wis. Stat.
§ 343.305(3)(a), and did not inform Blackman of each step of the
process. But the State argues that the Deputy Sheriff properly
informed Blackman of the end result, that is, that Blackman's
operating privilege would be revoked.
¶48 The State further contends that Blackman would have
had his operating privilege revoked at the refusal hearing
because under Wis. Stat. § 343.305(9)(a)5. the only issues that
a driver who refused a test under Wis. Stat. § 343.305(3)(ar)2.
may raise at a refusal hearing are whether he or she was read
the Informing the Accused form and whether he or she actually
refused to submit to a chemical test.
¶49 The State supports this interpretation of Wis. Stat.
§ 343.305(9)(a)5. by relying on the legislative history of 2005
Wis. Act 413 and 2009 Wis. Act 163. According to the State, the
legislature did not intend to allow a person from whom a sample
is requested under Wis. Stat. § 343.305(3)(ar)2. to challenge
probable cause to arrest for an OWI-related offense at a refusal
hearing; the legislature intended that the only issues at the
18
No. 2015AP450-CR
refusal hearing would be those listed in § 343.305(9)(a)5.b. and
c.: "whether the officer complied with sub. (4)," and "whether
the person refused to permit the test." The State argues that
the failure to remove an OWI-related probable cause
determination from a refusal hearing under § 343.305(3)(ar)2.
was a drafting error.17
¶50 An alternative interpretation, however, which we
adopt, based on the text of the statute, is that the
legislature's failure to amend Wis. Stat. § 343.305(9)(a) meant
that it did not remove the OWI-related probable cause
requirement from a refusal hearing. The text of the statute
clearly provides that when an officer requests a blood test
pursuant to Wis. Stat. § 343.305(3)(ar)2., the State cannot
prevail at the refusal hearing because probable cause is a
prerequisite to revocation of an operating license.
¶51 Because the State cannot prevail at a refusal hearing
following a driver's denial of a request for a blood test under
Wis. Stat. § 343.305(3)(ar)2., the Deputy Sheriff's reading of
the text of the "Informing the Accused" form misstated that
Blackman's operating privilege will be revoked.
17
The court of appeals seemed persuaded in the instant case
that the legislature committed a drafting error. The court of
appeals wrote: "The fact that Blackman could have prevailed at
a refusal hearing due to the legislature's failure to amend the
refusal hearing statute does not transform Blackman's freely
given actual consent under Wisconsin's implied consent law into
a coerced submittal." Blackman, 371 Wis. 2d 635, ¶12 (emphasis
added).
19
No. 2015AP450-CR
B
¶52 We next determine whether Blackman's consent to the
blood draw was obtained through misrepresentation, rendering his
consent coerced, that is, not voluntarily and freely given under
the Fourth Amendment.
¶53 Blood draws are searches under the Fourth Amendment to
the United States Constitution18 and Article I, Section 11 of the
Wisconsin Constitution.19 See Birchfield, 136 S. Ct. at 2173;
Schmerber v. California, 384 U.S. 757, 767 (1966). Warrantless
searches are per se unreasonable and are unlawful, subject to a
few "clearly delineated" exceptions. State v. Artic, 2010 WI
83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430.
18
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
19
Article I, Section 11 of the Wisconsin Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing
the place to be searched and the persons or things to
be seized.
20
No. 2015AP450-CR
¶54 In the instant case, the State relies on the consent
exception to the Fourth Amendment's warrant requirement. The
State must prove that consent to the blood draw was "given in
fact by words, gestures, or conduct" and that the consent was
"voluntary." Artic, 327 Wis. 2d 392, ¶30 (emphasis added).
Further, the State must satisfy that burden by clear and
convincing evidence. Artic, 327 Wis. 2d 392, ¶32; see also
Bumper v. North Carolina, 391 U.S. 543, 548 (1968).20
¶55 Whether the consent was given in fact is a "question
of historical fact." The finding of the circuit court will be
upheld "if it is not contrary to the great weight and clear
preponderance of the evidence." Artic, 327 Wis. 2d 392, ¶30.
The circuit court found that the defendant consented to
providing a blood sample but concluded that the consent was
coerced.
20
The State appears to argue that, under the implied
consent law, all persons are deemed to have given actual consent
to a blood draw when they operate a vehicle on a Wisconsin
highway. The State does not argue, however, that law
enforcement officers have the authority to compel drivers to
submit to a blood draw without a warrant or an exception to the
warrant requirement. The State acknowledges that drivers have a
"statutory opportunity to withdraw [their] consent." Brief and
Supplemental Appendix of Plaintiff-Appellant-Petitioner (State
of Wisconsin) at 17. According to the State, a driver's choice
when asked to submit to a blood test "is to submit and affirm
the consent the person has already given, or refuse and withdraw
that consent, and face penalties." Brief and Supplemental
Appendix of Plaintiff-Appellant-Petitioner (State) at 10.
Withdrawal of consent is not an issue in the instant case.
21
No. 2015AP450-CR
¶56 If the State establishes consent in fact, the State
must prove that the consent was given voluntarily and freely.
Schneckloth v. Bustamonte, 412 U.S. 218, 222, 225 (1973).
Voluntary consent must be "'an essentially free and
unconstrained choice,' not 'the product of duress or coercion,
express or implied.'" Artic, 327 Wis. 2d 392, ¶32 (quoting
Schneckloth, 412 U.S. at 225, 227 (emphasis added)).21
¶57 The determination of voluntariness is based upon an
evaluation of the totality of the surrounding circumstances.
Artic, 327 Wis. 2d 392, ¶32. Misrepresentation is an important
aspect of the totality of circumstances in the instant case.
¶58 In Birchfield, 136 S. Ct. at 2186, the Court concluded
that the officer inaccurately advised the accused that the law
required him to submit to a warrantless blood test. The Court
remanded the cause to the state court to reevaluate the
accused's consent in light of the inaccuracy.
¶59 In Artic, quoting State v. Phillips, 218 Wis. 2d 180,
¶33, 577 N.W.2d 794 (1998), the court provided multiple non-
exclusive factors, including misrepresentation, to determine
whether consent was given voluntarily:
(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
21
See also Bumper v. North Carolina, 391 U.S. 543, 548-49
(1968): "[A] prosecutor [who] seeks to rely upon consent to
justify the lawfulness of a search[ ] has the burden of proving
that the consent was, in fact, freely and voluntarily given.").
22
No. 2015AP450-CR
"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
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.
Artic, 327 Wis. 2d 392, ¶33 (citing Phillips, 218 Wis. 2d at
198-203) (emphasis added).
¶60 Although the most pertinent consideration in the
instant case is whether misrepresentation rendered Blackman's
consent coerced, we also consider the other factors described in
Artic and Phillips. See Artic, 327 Wis. 2d 392, ¶33.
¶61 Here are the other considerations. This was
Blackman's first OWI offense. There is nothing in the record to
indicate that Blackman was physically intimidated or that
Blackman was uncooperative. The Deputy Sheriff testified that
Blackman's response to the request for a blood draw was that he
did not specifically agree or disagree or refuse or give any
indication that he was going to refuse.22 Blackman was informed
22
The prosecutor's question and the Deputy Sheriff's answer
at the suppression hearing regarding whether Blackman was
coerced into taking a blood test is as follows:
Q: [Prosecutor] . . . Is there anything else you can
tell me that would give us some information as to
whether or not Mr. Blackman was forced or coerced or
threatened in any way to consent to an evidentiary
chemical test of his blood?
A: [Deputy Sheriff Abler] No, he was not. In fact he
was very cooperative throughout the whole procedure.
(continued)
23
No. 2015AP450-CR
that he could refuse to take the test. He was incorrectly
informed that his operating privilege would be revoked if he
refused the request for a blood draw.
¶62 We therefore address the effect of the Deputy
Sheriff's "inaccuracy" or "misrepresentation" of consequences on
the validity of Blackman's consent under the Fourth Amendment.
¶63 We conclude that because Blackman's consent was the
product of misrepresentation by the State, and under the
totality of the circumstances, the State has not carried its
burden of proving that Blackman's consent was voluntarily and
freely given under the Fourth Amendment. The State did not
The circuit court's questioning of the Deputy Sheriff about
Blackman's taking a blood test is as follows:
Q: [The Circuit Court] Did you tell him why you were
going to the hospital and why he should ride in your
car?
A: [Deputy Sheriff Abler] Well, I'm sure I told him
that. I know I explained our normal procedure is when
there is a serious accident like this that we do take
blood samples.
Q: Okay. So he knew he was going to the hospital for
a blood sample?
A: Yes, he did.
Q: Did he say anything to you about agreeing to have a
blood sample and when you got in the car and before
you guys took off to go to the hospital?
A: I don't know that he specifically agreed, but he
did not disagree or refuse or give me any indication
that he was going to refuse.
24
No. 2015AP450-CR
prove Blackman's consent was the result of "an essentially free
and unconstrained choice." Schneckloth, 412 U.S. at 225.
¶64 In the instant case, Deputy Sheriff Abler was directed
by statute to read the Informing the Accused form to Blackman.
The text of the form advised Blackman that the Deputy Sheriff
was requesting to test a sample of Blackman's blood. The form
inaccurately advised Blackman of the penalty for refusal. The
text of the form inaccurately advised Blackman that his
operating privilege would be revoked. This penalty did not
apply to Blackman.
¶65 The Deputy Sheriff advised Blackman that the
Department's standard operating procedure was to take blood
under the circumstances in the instant case. Although the
Deputy Sheriff did not tell Blackman that a blood draw would be
performed without his consent, Blackman could have drawn this
inference from the statement of the Department's policy and
could have concluded that he had no real choice but to take a
blood test.
¶66 Considering the totality of the circumstances, we
conclude that the State failed to meet its burden to prove that
Blackman voluntarily and freely consented to the blood draw
under the Fourth Amendment. All things considered, Blackman's
consent to the blood draw was not voluntary and free, and was
not an unconstrained choice; it was the product of coercion,
express or implied, and therefore was invalid under the Fourth
Amendment.
25
No. 2015AP450-CR
¶67 Thus, the evidence obtained through the blood draw was
the result of an unlawful search.
C
¶68 Ordinarily, evidence obtained through an unlawful
search is excluded at trial. The exclusionary rule generally
serves to "deter deliberate, reckless, or grossly negligent
conduct, or in some circumstances recurring or systemic
negligence." Herring v. United States, 555 U.S. 135, 150-51
(2009). In State v. Dearborn, 2010 WI 84, ¶36, 327 Wis. 2d 252,
786 N.W.2d 97, the court stated the circumstance under which the
exclusionary rule applies as follows:
To trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that
such deterrence is worth the price paid by the justice
system. As laid out in our cases, the exclusionary
rule serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring
or systemic negligence.
¶69 The State asks that the results of the blood draw in
the instant case be admitted in evidence because Deputy Sheriff
Abler acted in good faith.
¶70 Courts have applied the good faith exception and
deviated from the exclusionary rule in only a few types of cases
and in limited circumstances. The good faith exception has
generally been applied when a law enforcement officer has
reasonably and objectively relied on settled law (whether
statute23 or binding judicial precedent24) that was subsequently
23
Illinois v. Krull, 480 U.S. 340, 349-50 (1987).
26
No. 2015AP450-CR
overruled or a warrant that was subsequently invalidated25 or
that was based on erroneous information resulting from isolated
police negligence attenuated from the arrest.26
¶71 The parties cite no case, and we have found none,
applying the good faith exception to the exclusionary rule to a
situation in which a law enforcement officer followed the
requirements of a statute and gave an accused inaccurate
information upon which the accused's coerced consent was based.
¶72 The State argues that Deputy Sheriff Abler's conduct
and the Department's procedure complied with the statute; that a
24
Davis v. United States, 564 U.S. 229, 241 (2011).
25
Arizona v. Evans, 514 U.S. 1, 14 (1995); United States v.
Leon, 468 U.S. 897, 918 (1984).
Although the court often interprets Article I, Section 11
of the Wisconsin Constitution in conformity with the
interpretation of the Fourth Amendment, in State v. Eason, 2001
WI 98, ¶3, 245 Wis. 2d 206, 629 N.W.2d 625, the court adopted a
"Leon-plus" good faith rule relying on Article I, Section 11 of
the Wisconsin Constitution. The court concluded that this
provision "guarantees more protection than the Fourth Amendment
provides under the good faith exception as adopted in Leon:"
We hold that the good faith exception applies where
the State has shown, objectively, that the police
officers reasonably relied upon a warrant issued by an
independent magistrate. The burden is upon the State
to also show that the process used in obtaining the
search warrant included a significant investigation
and a review by either a police officer trained and
knowledgeable in the requirements of probable cause
and reasonable suspicion, or a knowledgeable
government attorney. (Emphasis added.)
26
Herring v. United States, 555 U.S. 135, 137, 147-48
(2009).
27
No. 2015AP450-CR
law enforcement officer cannot be expected to question a
legislative enactment or Department procedure; that the
exclusionary rule is not intended to deter the legislature; and
that the exclusionary rule's deterrent effect on law enforcement
conduct would not be served by suppressing the evidence of the
blood draw in the instant case.
¶73 The State's argument is not persuasive. The error in
the instant case is not an error attributable solely to the
legislature. Nor does the instant case present an isolated or
nonrecurring error in the criminal justice system. It evinces
the potential of a "recurring or systemic" error, a widespread
error, affecting the rights of an accused. The accused has a
constitutional right under the Fourth Amendment, unless another
exception to the warrant requirement exists, for law enforcement
officers to obtain his or her free and voluntary consent to a
blood draw or to obtain a search warrant for the blood draw.
Unless the evidence in the instant case is suppressed, law
enforcement officers across the state will continue to read the
Informing the Accused form to accuseds in the same situation as
Blackman without providing correct information to provide the
basis for the accused's voluntary consent.
¶74 The exclusionary rule's deterrent effect will be
served if the evidence in the instant case is suppressed.
¶75 The application of the good faith exception to the
exclusionary rule is not appropriate in the instant case.
Accordingly, we conclude that the evidence of Blackman's blood
test should be suppressed.
28
No. 2015AP450-CR
¶76 The dissent contends that Washburn County v. Smith,
2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, contravenes our
holding that the misrepresentation in the Informing the Accused
Form requires suppression of the evidence and that the good
faith exception to the exclusionary rule does not apply in the
instant case. The dissent errs. Smith is inapposite.
¶77 In Smith, unlike in the instant case, the information
in the Informing the Accused Form was not challenged as
incorrectly applying to the accused. Smith, 308 Wis. 2d 65,
¶¶65, 77.
¶78 The alleged misrepresentation in Smith was that the
law enforcement officer gave additional information that was
incorrect to the accused from whom a breath test (not a blood
test) was requested. Smith, 308 Wis. 2d 65, ¶¶54, 78. The
accused did not take the breath test and faced a refusal
hearing.
¶79 The accused, who held a Louisiana driver's license,
argued at the refusal hearing that the deputy gave him incorrect
information about the penalties under Louisiana law and that
therefore his refusal was justified. The court was unconvinced
by the accused's argument about Louisiana law. The court held
that the Informing the Accused Form accurately stated Wisconsin
law and that neither the deputy nor the accused believed that
the deputy was stating Louisiana law. Smith, 308 Wis. 2d 65,
¶¶81, 82.
¶80 The accused also alleged that the deputy gave him an
additional item of misinformation. Because no factual finding
29
No. 2015AP450-CR
had been made about this allegation, the court assumed for
purposes of its decision that the deputy misinformed the accused
that he would be entitled to a refusal hearing within 10 days.
Smith, 308 Wis. 2d 65, ¶84. The correct information was that
the accused could request a refusal hearing within 10 days.
¶81 Under the applicable law at that time, in order to
prevail, the accused in the Smith case had the burden to make a
prima facie showing that the deputy's erroneous statement about
the timing of the refusal hearing contributed to his refusal to
submit to the breath test. Smith, 308 Wis. 2d 65, ¶86. The
accused failed to make this essential showing. Accordingly, the
court concluded that the accused improperly refused to submit to
the breath test under the Implied Consent Law. Smith, 308
Wis. 2d 65, ¶¶87-89.
¶82 The Smith court did not address the driver's Fourth
Amendment rights regarding a breath or blood test, the concept
of voluntary consent under the Fourth Amendment, or the
exclusionary rule. These issues were not raised in the Smith
decision. The Smith case is not pertinent to the instant case.
* * * *
¶83 For the reasons set forth, we conclude that the State
did not prove by clear and convincing evidence that Blackman's
consent to the blood draw was valid, that is, that it was
voluntarily and freely given under the Fourth Amendment.
¶84 Because the exclusionary rule's deterrent effect will
be served by suppressing the evidence of Blackman's blood test,
we decline to apply the good faith exception to the exclusionary
30
No. 2015AP450-CR
rule. The results of Blackman's blood draw are therefore
suppressed.
¶85 Accordingly, the cause is remanded to the circuit
court to reinstate the order suppressing the evidence and for
further proceedings not inconsistent with the decision of this
court.
By the Court.——The decision of the court of appeals is
reversed and the cause remanded.
31
No. 2015AP450-CR.akz
¶86 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the court's opinion with a few exceptions and a few caveats.
Because I am able to join most, but not all, of the court's
opinion, I write to provide further clarity of that opinion.
¶87 At the outset, I am compelled to clarify what was and
was not the "misrepresentation" in this case. Here, the term
"misrepresentation" is being used in the context of law
enforcement reading a required form completely accurately but
the standard form that was read verbatim inaccurately stated the
law. This court has framed that misstatement of law by using
the phrase "misrepresentation." To be clear, there are a number
of occasions where law enforcement may appropriately use
"misrepresentations" in the context of an investigation or
otherwise. See, e.g., Lewis v. United States, 385 U.S. 206,
208-09 (1966) ("Indeed, it has long been acknowledged by the
decisions of this Court that, in the detection of many types of
crime, the Government is entitled to use decoys and to conceal
the identity of its agents." (citations omitted)); United States
v. Peters, 153 F.3d 445, 464 (7th Cir. 1998) (Easterbrook, J.,
concurring) ("Police engage in deceit all the time in order to
induce suspects to reveal evidence. . . . Deception plays an
important and legitimate role in law enforcement.").
¶88 In the case at issue, the word "misrepresentation" is
used not because law enforcement spoke in an effort to induce
coercion, but rather, is used in the literal sense that the
language on the form read misrepresented what the law actually
was. Thus, it is not law enforcement action that caused the
1
No. 2015AP450-CR.akz
misrepresentation, but rather the inaccuracy of the form,
properly read verbatim, that inaccurately informed the defendant
of the state of the law. The phrase "misrepresentation" is used
in the opinion but the use of that term should not be confused
with a more typical scenario involving misrepresentations made
by law enforcement.1 The opinion should not be read to suggest
that any misrepresentation by law enforcement would
automatically render a subsequent action to be deemed coerced.
One does not automatically influence the other.
¶89 Second, I further write to clarify that the court's
opinion should not be read as inconsistent with my view of the
constitutional theory behind Wisconsin's implied consent law.
See, e.g., State v. Howes, 2017 WI 18, ¶¶52-87, 373 Wis. 2d 468,
893 N.W.2d 812 (Gableman, J., concurring). The court sensibly
does not opine on this matter in this case and I write to alert
the reader that this decision should not be interpreted as doing
so.
¶90 Third, I do not join that part of the opinion which
discusses the inferences that Blackman might have drawn from one
of Deputy Abler's statements in this case. See majority op.,
¶65. Specifically, Deputy Abler's reference to department
policy to draw blood and what Blackman might have thought that
1
When it comes to misrepresentations by law enforcement,
the proposition that misrepresentation is or is not deemed to be
permissible oversimplifies the reality of when or if a
misrepresentation by law enforcement has been approved by the
courts. See, e.g., Lewis v. United States, 385 U.S. 206, 208-09
(1966); United States v. Peters, 153 F.3d 445, 464 (7th Cir.
1998) (Easterbrook, J., concurring).
2
No. 2015AP450-CR.akz
to mean is a disputed fact between the parties. Resolution of
the meaning of the statement is not necessary to the disposition
of this case. If we were to review this, the inquiry would not
be as subjective as the court's discussion might seem. Cf.,
e.g., Florida v. Jimeno, 500 U.S. 248, 251 (1991) ("The standard
for measuring the scope of a suspect's consent under the Fourth
Amendment is that of 'objective' reasonableness——what would the
typical reasonable person have understood by the exchange
between the officer and the suspect?").
¶91 Fourth, the good faith exception applies in specific,
narrowly-defined circumstances. See, e.g., State v. Dearborn,
2010 WI 84, ¶46, 327 Wis. 2d 252, 786 N.W.2d 97 ("[U]nder our
holding today, the exclusionary rule is inappropriate only when
the officer reasonably relies on clear and settled precedent.
Our holding does not affect the vast majority of cases where
neither this court nor the United States Supreme Court have
spoken with specificity in a particular fact situation."); Davis
v. United States, 564 U.S. 229, 238-39 (2011) (listing cases).
In my view, the facts of this case do not constitute one of the
rare occasions where the good faith exception applies. This is
not a case, for example, where law enforcement followed the law
in existence at the time, where the error will not occur in the
future given the current state of the law, and where future
action is already deterred because of the correction in the law.
Instead, the law enforcement officer inaccurately explained
existing law, and this error might continue to occur in the
future such that the deterrent effect will be served by the
3
No. 2015AP450-CR.akz
suppression of evidence. While deterrent effect is not the sole
consideration, I am able to join the court's discussion
understanding that although "[r]eal deterrent value is a
'necessary condition for exclusion,' . . . it is not 'a
sufficient' one. The analysis must also account for the
'substantial social costs' generated by the rule." Id. at 237(citation omitted) (quoting Hudson v. Michigan, 547 U.S. 586,
596 (2006)). The result reached in this case is not
inconsistent with this approach.
¶92 Fifth, while I agree with the court that the
information given to Blackman in the instant case was inaccurate
under the law, I do not necessarily join the court's inference
that certain advice should be given to Blackman under Wis. Stat.
§ 343.305(3)(ar)2. We need not go that far.
¶93 For the foregoing reasons, I respectfully concur.
¶94 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
4
No. 2015AP450-CR.pdr
¶95 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting).
Wisconsin's legislature repeatedly has enacted laws to lessen
the carnage that drunk drivers inflict on those who use
Wisconsin roads. Today, the majority opinion overturns
legislation that holds those who drive with a prohibited alcohol
concentration responsible for the injuries they cause by
violating a traffic law when their intoxication is not readily
apparent.
¶96 The majority opinion errs for three reasons: Adam M.
Blackman's consent to blood tests was not obtained by law
enforcement coercion; the majority opinion misinterprets the
relevant statutes; and Deputy Sheriff Abler acted with a good
faith belief that he was doing what the statutes required.
Stated more fully: (1) Deputy Abler's reading the Informing the
Accused form to Adam Blackman was not sufficient to overcome
Blackman's free will such that the reaffirmation of his consent
to evidentiary tests was coerced rather than voluntary; (2) the
controlling statutes, correctly interpreted, comport with the
deputy's reading the Informing the Accused form to Blackman; and
(3) Deputy Abler, in good faith, read what he believed the
statutes required. Accordingly, I would affirm the court of
appeals, and I respectfully dissent from the majority opinion.
I. BACKGROUND
¶97 The majority opinion ably sets forth most of the
factual background of this controversy, so I shall relate only
those facts necessary to attuning the reader to my discussion
that follows.
1
No. 2015AP450-CR.pdr
¶98 At approximately 10:00 in the morning while driving
his automobile, Blackman made a left-hand turn from a county
highway onto an intersecting street. In so doing, he crossed
the path of an oncoming bicyclist, who collided with the right
side of Blackman's car causing great bodily harm to the
bicyclist.
¶99 While medical personnel were attending to the injured
bicyclist, Deputy Sheriff Abler spoke with Blackman, who had
remained at the scene of the accident. Abler testified that he
believed that Blackman violated a traffic law by not yielding
the right-of-way to the bicyclist when he made his left-hand
turn.
¶100 Because of the great bodily harm that the bicyclist
suffered, Abler asked Blackman to provide a blood sample.
Blackman agreed and was taken to a local hospital for the blood
draw. At the hospital, Abler read Blackman the Informing the
Accused form. Wisconsin Stat. § 343.305(4) directs that it be
read before a chemical evidentiary test is undertaken based on a
driver's alleged traffic violation that causes great bodily harm
to another person, i.e., a violation of Wis. Stat.
§ 343.305(3)(ar)2.
¶101 The Informing the Accused form describes civil
penalties that may follow from refusing to permit a chemical
test. The following questions were asked of the deputy about
his interactions with Blackman and Blackman's consent to the
evidentiary test in response to the Informing the Accused form.
Q Do you recall, did Mr. Blackman consent to an
evidentiary chemical test of his blood?
2
No. 2015AP450-CR.pdr
A Yes, he did.
Q Okay. At that time do you recall, did Mr.
Blackman have any questions for you about the
nature of that form?
A No, I don't recall any questions.
Q Okay. At the time that was read, was Mr.
Blackman confined in any way?
A No, other than the fact that we were just sitting
in a room at the hospital.
Q Okay. Is there anything else that you can tell
me that would give us some information as to
whether or not Mr. Blackman was forced or coerced
or threatened in any way to consent to an
evidentiary chemical test of his blood?
A No, he was not. In fact, he was very cooperative
throughout the whole procedure.
. . . .
THE COURT: Did you tell him why you were going
to the hospital and why he should ride in your car?
THE WITNESS: Well I'm sure I told him that. I
know I explained our normal procedure is when there is
a serious accident like this that we do take blood
samples.
THE COURT: Okay. So he knew he was going to the
hospital for a blood sample?
THE WITNESS: Yes, he did.
THE COURT: Did he say anything to you about
agreeing to have a blood sample and when you got in
the car and before you guys took off to go to the
hospital?
THE WITNESS: I don't know that he specifically
agreed, but he did not disagree or refuse or give me
any indication that he was going to refuse.
¶102 Blackman, who was 20 years of age on the date he was
requested to give a blood sample, reaffirmed his consent and his
3
No. 2015AP450-CR.pdr
blood was drawn.1 The tests showed he had a .104 blood alcohol
concentration. He was charged with several crimes that related
to his unlawful blood alcohol concentration and the great bodily
harm the bicyclist suffered.
¶103 Blackman moved to suppress the results of his blood
test, claiming that his consent was not valid because the deputy
misinformed him that he faced the civil penalty of license
revocation if he refused, when he actually faced only an arrest
for refusing the blood draw. He also argued that if the implied
consent law applied to him, and if his consent was valid, Wis.
Stat. § 343.305(3)(ar)2. was unconstitutional, both facially and
as applied to him.
¶104 The circuit court concluded that Abler did not
misinform Blackman "because the potential for revocation was
ultimately available through section (3)(a) if the refusal
continued." However, the circuit court granted Blackman's
motion to suppress because it concluded Blackman's consent was
coerced when he was told that if he refused to permit a blood
draw his operating privileges would be revoked. The court based
this "coercion" on its conclusion that revocation for refusal
under Wis. Stat. § 343.305(3)(ar)2. would be "statutorily
unenforceable." The court concluded that Wis. Stat.
§ 343.305(9)(a)5.a. required the State to prove that Abler had
probable cause to arrest Blackman for a driving while
1
The record reflects that Adam Blackman was born November
23, 1992 and his blood sample was drawn on June 22, 2013, the
date of the offenses.
4
No. 2015AP450-CR.pdr
intoxicated offense when the deputy had no facts to support
probable cause at the time the blood sample was taken.
¶105 The court of appeals reversed. It concluded that
Blackman was correctly informed that if he withdrew the consent
he first provided by driving on the Wisconsin roadways and
refused to submit to the requested blood draw, his operating
privileges would have been revoked. State v. Blackman, 2016
WI App 69, ¶1, 371 Wis. 2d 635, 886 N.W.2d 94.
¶106 The majority opinion disagrees with the court of
appeals and suppresses the results of Blackman's blood test.
II. DISCUSSION
A. Standard of Review
¶107 Whether Blackman's reaffirmation of his consent to
search was voluntarily given, in contrast to being obtained by
law enforcement coercion, is a question of constitutional fact.
State v. Phillips, 218 Wis. 2d 180, 195-96, 577 N.W.2d 794(1998). We apply a two-step process to make this determination.
Id. at 191. Historical facts relevant to consent are affirmed
unless clearly erroneous. Id. at 190. Voluntary consent is
consent "given in the absence of duress or coercion, either
express or implied." Id. at 197 (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49 (1973)). Accordingly,
voluntariness is a question of law that we decide after
considering the totality of the circumstances. Id. at 198
(citing Schneckloth, 412 U.S. at 226)). The totality of
circumstances include "both the circumstances surrounding the
consent and the characteristics of the defendant." Id. (citing
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State v. Xiong, 178 Wis. 2d 525, 534-36, 504 N.W.2d 428 (Ct.
App. 1993)).
¶108 This case also involves statutory interpretation and
application. These are questions of law that we independently
determine. State v. Hanson, 2012 WI 4, ¶14, 338 Wis. 2d 243,
808 N.W.2d 390.
¶109 And finally, whether Deputy Sheriff Abler read the
Informing the Accused form to Blackman in good faith such that
the exclusionary rule is inapplicable to the results of
Blackman's blood tests is also a question of law. State v.
Dearborn, 2010 WI 84, ¶33, 327 Wis. 2d 252, 786 N.W.2d 97.
B. Coercive or Voluntary
¶110 The majority opinion concludes that Blackman's consent
given in response to Abler's request for blood tests was not
voluntarily given because it was coerced by Abler's reading the
Informing the Accused form to Blackman. The form relates that
refusal will result in revocation, when Blackman's driving
privileges would not have been revoked if he had refused to
provide an evidentiary sample.2 In so concluding, the majority
opinion totally ignores the legal principles that come into play
when a court assesses whether a defendant's free will has been
overcome by law enforcement conduct for purposes of the Fourth
Amendment.
1. General principles
2
"He was incorrectly informed that his operating privilege
would be revoked if he refused the request for a blood draw."
Majority op., ¶61.
6
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¶111 When the State asserts that a search was consensual,
we must determine whether consent was voluntarily given.
Phillips, 218 Wis. 2d 180, ¶23. The test for voluntariness of a
search is "whether consent to search was given in the 'absence
of actual coercive, improper police practices designed to
overcome the resistance of a defendant.'" Xiong, 178 Wis. 2d at
532 (quoting State v. Clappes, 136 Wis. 2d 222, 245, 401 N.W.2d
759, 769 (1987)). Mere acquiescence to police authority, such
as when police display a search warrant to a defendant and he
permits entry into his home, is not coerced consent in the
context that Blackman contends occurred herein. Rather, we
consider a search done without a warrant that was based on law
enforcement's request to search and Blackman's response to that
request. Schneckloth, 412 U.S. at 234.
¶112 Whether a defendant's will was overborne such that his
consent to search was not voluntary requires us to examine the
details of the interactions between law enforcement and the
defendant and the characteristics of the defendant. Id. at 226.
There is no one factor that will determine whether consent was
coerced. As the United States Supreme Court has explained, "The
problem of reconciling the recognized legitimacy of consent
searches with the requirement that they be free from any aspect
of official coercion cannot be resolved by any infallible
touchstone." Id. at 229.
¶113 In regard to the interaction between law enforcement
and the defendant, we examine whether law enforcement
"threatened, physically intimidated, or punished the defendant,"
7
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Phillips, 218 Wis. 2d at 199; whether the interactions between
law enforcement and the defendant were under cooperative,
nonthreatening conditions, id. at 200; whether the consent was
the result of custodial interrogation, which the Supreme Court
concluded was "inherently coercive" in Miranda v. Arizona, 384
U.S. 436 (1966). Schneckloth, 412 U.S. at 240.
¶114 Some factors relating to the defendant are: his
youth, Haley v. Ohio, 332 U.S. 596, 599 (1948); education or
lack thereof, Payne v. Arkansas, 356 U.S. 560, 562 (1958); low
intelligence or mentally compromised, see Fikes v. Alabama, 352
U.S. 191, 196 (1957); questioning that occurred while defendant
was in custody, State v. Michels, 141 Wis. 2d 81, 92, 414 N.W.2d
311 (Ct. App. 1987).
¶115 In a consent-search, it is the State's burden to show
voluntariness; however, the State does not have the burden to
show that the defendant's consent was "informed consent."
Phillips, 218 Wis. 2d at 203 (citing Xiong, 178 Wis. 2d at 532).
Stated otherwise, the State has no obligation to prove that the
defendant consented to the search knowingly and intelligently,
or that the defendant knew he could refuse to permit the
requested search. State v. Rodgers, 119 Wis. 2d 102, 109-10,
349 N.W.2d 453 (1984) (citing Schneckloth, 412 U.S. at 229-32).
¶116 Furthermore, the obligation to prove that a
defendant's waiver of a trial right is knowing and intelligent
is vastly different from the test for assessing the
constitutional sufficiency of consent to search. Illinois v.
Rodriguez, 497 U.S. 177, 183 (1990). As the United States
8
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Supreme Court has explained, "what is generally demanded of the
many factual determinations that must regularly be made by
agents of the government——whether the magistrate issuing a
warrant, . . . or the police officer conducting a search or
seizure under one of the exceptions to the warrant requirement——
is not that they always be correct, but that they always be
reasonable." Id. at 185.
2. Blackman's consent
¶117 There is nothing in the record that shows Abler
coerced Blackman. No threats were made to obtain his consent to
the blood draw. He was not punished by denying food, drink or
rest periods. No coercive, improper police conduct designed to
overcome Blackman's free will occurred. All that happened prior
to the blood draw was Abler's reading the Informing the Accused
form to Blackman.
¶118 In regard to Blackman, he was 20 years of age when the
accident occurred. There is nothing in the record that would
indicate he did not have the capacity to freely consent, or
withdraw consent, for the blood draw. He willingly went to the
hospital and permitted blood to be drawn for testing. Deputy
Abler said that "he was very cooperative throughout the whole
procedure."
¶119 As I will explain below, I have concluded that the
deputy properly read the Informing the Accused form, which Wis.
Stat. § 343.305(4) requires. However, even if I were to assume
that the form should not have been read because Blackman's
driving privileges could not have been revoked if he refused to
9
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permit the blood test, law enforcement had no obligation to
provide additional information to Blackman. Constitutionally
sufficient consent may be obtained when the consent is not
knowingly and intelligently given. Schneckloth, 412 U.S. at
229-32; Rodgers, 119 Wis. 2d at 109-10; Xiong, 178 Wis. 2d at
532. Reading the form simply gave Blackman a choice: he could
say yes or he could say no.
¶120 Furthermore, if reading the Informing the Accused form
to Blackman coerced his consent to a blood draw, reading the
Informing the Accused form coerces every driver to whom it is
read. All have the same choice: say yes or say no. Requiring
that accurate consequences of refusing to permit a blood draw
are known to the defendant before his consent is held to be
voluntary is contrary to Schneckloth, Rogers and Xiong.
Knowledge of the consequences of refusal is outside the scope of
Fourth Amendment consent to search protections.
¶121 A common example shows the fallacy of the majority
opinion's conclusion that Blackman's consent was coerced. Let's
assume that a driver belongs to a religious sect that prohibits
blood-letting. He refuses to give a blood sample after the
Informing the Accused form is read to him. The form is the same
for all to whom it is read; yet, if a driver refuses to provide
a blood sample based on a sincerely held religious belief, it is
likely that his license will not be revoked. See Schmerber v.
California, 384 U.S. 757, 771 (1966). Therefore, the form will
not provide an accurate description of the consequences of
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refusing to provide the requested blood sample for such a
driver.
¶122 No coercion forced Blackman to provide a blood sample.
Coercion requires unlawful police conduct designed to override
the free will of a defendant. There is nothing in this record
to suggest unlawful police conduct; and there is nothing in this
record to suggest that this 20-year-old man did not freely and
voluntarily consent to the blood test.
C. Statutory Interpretation
¶123 Proper interpretations of Wis. Stat. § 343.305 and its
subsections show that the deputy correctly followed directives
established by the legislature, which included reading the
Informing the Accused form, § 343.305(4), and upon refusal, a
refusal hearing would have followed, § 343.305(9)(c).
1. General principles
¶124 Statutory interpretation begins with the language of
the statute. If the meanings of the words chosen by the
legislature are plain, ordinarily we stop the inquiry. State ex
rel Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. "Plain meaning may be ascertained
not only from the words employed in the statute, but also from
the context." Prince Corp. v. Vandenberg, 2016 WI 49, ¶17, 369
Wis. 2d 387, 882 N.W.2d 371.
¶125 Interpreting a statute in context requires that we do
not interpret statutory language in isolation, but rather in
relation to surrounding and closely-related statutory
provisions. Id. Here, I interpret the subsections of Wis.
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Stat. § 343.305 as they relate to each other within Wisconsin's
statutory scheme of implied consent.3
2. Relevant Statutes
¶126 Wisconsin Stat. §§ 343.305(3)(ar)2., 343.305(4), and
343.305(9) are implicated by Blackman's arguments that the
majority opinion finds persuasive.4 Accordingly, I interpret
those provisions in the context of Wisconsin's implied consent
law, as they relate to each other.
¶127 A vehicle operator whom a law enforcement officer has
reason to believe committed a violation of a traffic law that
caused great bodily harm to another may be charged with a
violation of Wis. Stat. § 343.305(3)(ar)2. An alleged violation
of § 343.305(3)(ar)2. permits a law enforcement officer to
request the vehicle operator to provide one or more samples of
breath, blood or urine. § 343.305(3)(ar)2. There is no dispute
that that interpretation is what the statute plainly provides.
¶128 In regard to a request for samples to test for alcohol
concentration, Wis. Stat. § 343.305(4) states in relevant part:
At the time that a chemical test specimen is requested
under sub. (3)(a), (am), or (ar), the law enforcement
officer shall read the following to the person from
whom the test specimen is requested:
3
I note that 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)).
4
Majority op., ¶¶30, 44.
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You . . . are the operator of a vehicle that was
involved in an accident that caused the death of,
great bodily harm to, or substantial bodily harm to a
person . . . .
This law enforcement agency now wants to test one
or more samples of your breath, blood or urine . . . .
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.
The Informing the Accused form, which is read before samples for
chemical testing are secured, repeats the statutory admonitions
of § 343.305(4). The plain wording of subsec. (4) requires the
officer to read the statutory provisions. There is no dispute
that the statutory provisions are contained within the Informing
the Accused form.
¶129 Where I part company with the majority opinion is in
its interpretation of Wis. Stat. § 343.305(9). It is not until
there is a refusal and a timely request for a refusal hearing
that § 343.305(9) comes into play. Neither of these events
occurred in the pending matter. However, given the arguments
made to us and the majority opinion's interpretation of the
various provisions of subsec. (9), I, too, address § 343.305(9).
¶130 I begin with Wis. Stat. § 343.305(9)(c) because it is
the paragraph in subsec. (9) that addresses refusal by a person
from whom submission of a sample for testing was requested under
subd. (3)(ar)2. Paragraph (9)(c) provides:
If a law enforcement officer informs the circuit or
municipal court that a person has refused to submit to
a test under sub (3)(a), (am), or (ar), the court
shall be prepared to hold any requested hearing to
determine if the refusal was proper. The scope of the
hearing shall be limited to the issues outlined in
par. (a)5. or (am)5. Section 967.055 applies to any
hearing under this subsection.
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¶131 When a vehicle operator who is not a commercial motor
vehicle operator refuses a request to submit a sample for
testing based on a suspected violation of Wis. Stat.
§ 343.305(3)(ar)2., any requested hearing cannot encompass more
issues than those identified in subd. (9)(a)5. However, there
is nothing in para. (9)(c) that requires all three issues
identified in subd. (9)(a)5. to be tried. Rather, the issues
that must be tried are whether the officer complied with sub.
(4), subd. para. (9)(a)5.b., and whether the person's refusal
was due to a physical inability to submit to the requested test
because of a cause unrelated to the use of a prohibited
substance, subd. para. (9)(a)5.c.
¶132 Wisconsin Stat. § 343.305(9)(c) states that the "scope
of the hearing shall be limited to the issues outlined in par.
(a)5." It does not say that the issues outlined in para. (a)5.
shall be tried.
¶133 When issues to be considered in a claim or a type of
review are "limited," no unlisted issues can be considered, but
every enumerated issue identified in the list does not have to
be tried. For example, in certiorari review the issues are
limited to:
(1) whether the board kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law;
(3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its
judgment; and (4) whether the board might reasonably
make the order or determination in question based on
the evidence.
FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶8, 301 Wis. 2d 321,
733 N.W.2d 287. However, there is no need to try all four
14
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issues in order to prevail; simply proving that the board did
not proceed on a correct theory of law is sufficient. Id.¶134 Furthermore, even though Wis. Stat.
§ 343.305(9)(a)5.a. permits consideration of whether the officer
had probable cause to believe the person was operating a motor
vehicle with a prohibited alcohol concentration, nothing in
para. (9)(c) requires that issue be tried. A plain reading of
subd. (9)(a)5. in the context of Wis. Stat. § 343.305(3)(ar)2.
demonstrates that requiring the State to litigate whether the
officer had probable cause to believe the driver was impaired or
had a prohibited alcohol concentration would make no sense
because § 343.305(3)(ar)2. is based on the violation of a
traffic law that causes death or great bodily injury, not on
apparent intoxication.
3. Application of statutes to Blackman
¶135 Deputy Abler had reason to believe that Adam Blackman
violated a traffic law by failing to yield the right-of-way to
oncoming traffic, which caused great bodily harm to another.
Accordingly, Blackman was alleged to have violated Wis. Stat.
§ 343.305(3)(ar)2. There is no question that the bicyclist
suffered great bodily harm and no question that it was pursuant
to § 343.305(3)(ar)2. that Abler requested that Blackman submit
to a blood test. It is also beyond dispute that the deputy
complied with Wis. Stat. § 343.305(4) by reading Blackman the
Informing the Accused form.
¶136 Even though statutory interpretation arising from a
refusal is not present in this case, if it were, I would
15
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conclude that Wis. Stat. § 343.305(9)(c) does not require that
the issue of whether the deputy had probable cause to believe
Blackman was impaired must be tried because Blackman was
proceeded against pursuant to Wis. Stat. § 343.305(3)(ar)2.
There is nothing in the record to show that if Blackman had
refused, such refusal would be excused because of an inability
to submit to blood tests. Accordingly, if he were to have
refused, his driving privileges would have been revoked.
¶137 The legislature made a policy choice to test whether a
vehicle's operator was under the influence of intoxicating
substances when accidents cause death or great bodily harm. It
did so because intoxication is not always readily apparent at
the scene of a serious accident, but can nevertheless have
contributed to loss of life and serious injuries. That policy
choice is Wis. Stat. § 343.305(3)(ar)2.
¶138 Blackman's blood test showed a prohibited alcohol
concentration of .104, well above the legal limit of .08 for an
adult, and absolutely prohibited for a man who was underage to
drink any alcohol on the date of the accident.
D. Good Faith
¶139 Even if I were to assume that Blackman's consent was
coerced and were to agree with the majority opinion's statutory
interpretation, I nevertheless would conclude that the good
faith exception to the exclusionary rule applies; and therefore,
I would not suppress the results of the blood test.
¶140 At the outset, I note that the majority opinion
incorrectly frames the exclusionary rule as a remedy courts
16
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apply liberally. Without citation, the majority opinion states:
"Ordinarily, evidence obtained through an unlawful search is
excluded at trial."5 This is contrary to well-established law
when innocent police conduct is the foundation from which
objection to a search arises.
¶141 The Supreme Court has concluded that "the
[exclusionary] rule's 'costly toll' upon truth-seeking and law
enforcement objectives presents a high obstacle for those urging
application of the rule." Pennsylvania Bd. of Probation v.
Scott, 524 U.S. 357, 364-65 (1998) (quoting United States v.
Payner, 447 U.S. 727, 734 (1980)). The Supreme Court has
repeatedly stated that "[s]uppression of evidence" should be the
"last resort, not our first impulse." Hudson v. Michigan, 547
U.S. 586, 591 (2006); see also Utah v. Strieff, 136 S. Ct. 2056,
2061 (2016); Herring v. United States, 555 U.S. 135, 140 (2009).
We have used similar admonitions when describing the
exclusionary rule. Dearborn, 327 Wis. 2d 252, ¶35 (reasoning,
"exclusion [of evidence] is the last resort").
¶142 "The rule's sole purpose . . . is to deter future
Fourth Amendment violations." Davis v. United States, 564 U.S.
229, 236–37 (2011). "Where suppression fails to yield
'appreciable deterrence,' exclusion is
'clearly . . . unwarranted.'" Id. at 237 (quoting United States
v. Janis, 428 U.S. 433, 454 (1976)). "Police practices trigger
the harsh sanction of exclusion only when they are deliberate
5
Majority op., ¶68.
17
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enough to yield '[meaningfu[l]' deterrence, and culpable enough
to be 'worth the price paid by the justice system.'" Davis, 564
U.S. at 240 (quoting Herring, 555 U.S. at 141).
¶143 Moreover, "marginal deterrence is not enough to
justify exclusion; 'the benefits of deterrence must outweigh the
costs.'" Dearborn, 327 Wis. 2d 252, ¶35 (quoting Herring, 555
U.S. at 129). "The principal cost of applying the rule is, of
course, letting guilty and possibly dangerous defendants go
free—something that 'offends basic concepts of the criminal
justice system.'" Herring, 555 U.S. at 141 (quoting United
States v. Leon, 468 U.S. 897, 908 (1984)). Given the high cost
to society of excluding probative evidence against a defendant
in a criminal trial, suppression of the evidence is "the last
resort" and the burden is on the defendant to show that
exclusion is warranted. Scott, 524 U.S. at 364-65.
¶144 Good faith is a well-defined exception to the
exclusionary rule. See Dearborn, 327 Wis. 2d 252, ¶37. "The
exclusionary rule does not serve its purpose when police act
with a reasonable, good faith belief that their conduct is
lawful." State v. Oberst, 2014 WI App 58, ¶9, 354 Wis. 2d 278,
847 N.W.2d 892; see also Leon, 468 U.S. at 919 ("We have
frequently questioned whether the exclusionary rule can have any
deterrent effect when the offending officers acted in the
objectively reasonable belief that their conduct did not violate
the Fourth Amendment."). The "good-faith inquiry is confined to
the objectively ascertainable question whether a reasonably
well-trained officer would have known that the search was
18
No. 2015AP450-CR.pdr
illegal in light of all of the circumstances." Herring, 555
U.S. at 145 (internal quotations omitted).
¶145 The good faith exception applies when an officer
relies on a statute that is later found unconstitutional.6
Illinois v. Krull, 480 U.S. 340, 349-50 (1987). "Unless a
statute is clearly unconstitutional, an officer cannot be
expected to question the judgment of the legislature that passed
the law. If the statute is subsequently declared
unconstitutional, excluding evidence obtained pursuant to it
prior to such a judicial declaration will not deter future
Fourth Amendment violations by an officer who has simply
fulfilled his responsibility to enforce the statute as written."
Id.¶146 In the present case, there is no deterrent value in
suppressing the results of Blackman's blood test. Deputy Abler
was required to read the Informing the Accused form to Blackman.
Specifically, Wis. Stat. § 343.305(4) provides that "the law
enforcement officer shall read the following to the person from
whom the test specimen is requested." Excluding the results of
Blackman's blood test "will not deter future Fourth Amendment
6
The good faith exception is not cabined to the factual
circumstances in which it has previously been applied by the
United States Supreme Court. See People v. LeFlore, 32 N.E.3d
1043, 1050 (Ill. 2015) ("Clearly, application of the good-faith
inquiry is not limited to the specific circumstances addressed
by the Supreme Court in Davis [v. United States, 564 U.S. 229(2011)] or any other Supreme Court case."); United States v.
Stephens, 764 F.3d 327, 337 (4th Cir. 2014) (declining to limit
"the good-faith inquiry only to the precise factual
circumstances addressed by the Supreme Court").
19
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violations" because the "officer . . . simply fulfilled his
responsibility to enforce the statute as written." Krull, 480
U.S. at 349-50.
¶147 The deputy did not act with "deliberate, reckless, or
grossly negligent conduct" and therefore, this case is not one
in which suppression would yield "appreciable deterrence."
Weighed against the high societal cost of exclusion, suppression
of the blood test is not warranted in the present case. After
all, suppression is the "last resort." The deputy did that
which he was statutorily obligated to do; nothing more, nothing
less.
¶148 The majority opinion concludes that suppression is
necessary to deter officers from continuing to read individuals
"in the same situation as Blackman" the Informing the Accused
form.7 However, this argument fails for an obvious reason:
After the majority opinion in the present case concludes that it
is impermissible for an officer to rely solely on reading the
Informing the Accused form to obtain consent when a defendant is
alleged to have violated Wis. Stat. § 343.305(3)(ar)2., an
officer that does so will be unable to rely on the good faith
doctrine. Cf. Leon, 468 U.S. at 924 ("Nor are we persuaded that
application of a good-faith exception to searches conducted
pursuant to warrants will preclude review of the
constitutionality of the search or seizure, deny needed guidance
from the courts, or freeze Fourth Amendment law in its present
state.").
7
Majority op., ¶73.
20
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¶149 Additionally, the United States Supreme Court has
"'never applied' the exclusionary rule to suppress evidence
obtained as a result of nonculpable, innocent police conduct."
Davis, 564 U.S. at 240. In this case, the purported
"misconduct" was the incorrect information provided to Blackman.
Ironically, the author of the majority opinion has previously
permitted officers to misinform an individual of the
consequences of refusal specific to that individual. See
Washburn Cty v. Smith, 2008 WI 23, ¶80, 308 Wis. 2d 65, 746
N.W.2d 243. In Smith, an officer read an individual with a
Louisiana driver's license the Informing the Accused form. Id.,
¶53. The Court recognized that the penalties in the form did
not apply to the individual. Id., ¶54. Yet, the Court held
that the misinformation provided to the defendant was irrelevant
so long as the officer correctly read the Informing the Accused
form. Id., ¶81. Here, the officer also read the Informing the
Accused form correctly even if the penalties in the implied
consent laws were not accurate with respect to the defendant.
¶150 In sum, the deputy acted in good faith and his actions
were confirmed by the court of appeals. Accordingly, I conclude
that even if I were to assume that Blackman's consent was
coerced and were to agree with the majority opinion's statutory
interpretation, the good faith exception to the exclusionary
rule would apply, and the results of the blood tests are
admissible.
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III. CONCLUSION
¶151 I conclude that: (1) Deputy Abler's reading the
Informing the Accused form to Adam Blackman was not sufficient
to overcome Blackman's free will such that the reaffirmation of
his consent to evidentiary tests was coerced rather than
voluntary; (2) the controlling statutes, correctly interpreted,
comport with the deputy's reading the Informing the Accused form
to Blackman; and (3) Deputy Abler, in good faith, read what he
believed the statutes required. Accordingly, I would affirm the
court of appeals, and I respectfully dissent from the majority
opinion.
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1