2018 WI 84
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP304-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gerald P. Mitchell,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 11, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Terence T. Bourke
JUSTICES:
CONCURRED: KELLY, J., concurs, joined by R.G. BRADLEY, J.
(opinion filed).
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by
Linda J. Schaefer and Schaefer Law Firm, S.C., Sturgeon Bay.
There was an oral argument by Linda J. Schaefer.
For the plaintiff-respondent, there was a brief filed by
Ryan J. Walsh, chief deputy solicitor general, with whom on the
brief were Brad D. Schimel, attorney general, and David H.
Perlman, assistant attorney general. There was an oral argument
by Ryan J. Walsh, chief deputy solicitor general.
An amicus curiae brief was filed on behalf of Mothers
Against Drunk Driving by Kevin M. St. John and Bell Giftos St.
John, LLC, Madison, with whom on the brief was Theane D.
Evangelis, Lauren M. Blas, and Gibson, Dunn & Crutcher, LLP, Los
Angeles, California. There was an oral argument by Lauren M.
Blas.
2
2018 WI 84
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP304-CR
(L.C. No. 2013CF365)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 3, 2018
Gerald P. Mitchell,
Sheila T. Reiff
Defendant-Appellant. Clerk of Supreme Court
Appeal from a judgment of the Circuit Court. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This appeal is
before us on certification from the court of appeals.
¶2 Gerald Mitchell was convicted of operating while
intoxicated and with a prohibited alcohol concentration, based
on the test of blood drawn without a warrant while he was
unconscious, pursuant to Wis. Stat. § 343.305(3)(b) (2013–14).1
Mitchell contends that the blood draw was a search conducted in
violation of his Fourth Amendment rights.
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
No. 2015AP304-CR
¶3 We conclude that Mitchell voluntarily consented to a
blood draw by his conduct of driving on Wisconsin's roads and
drinking to a point evidencing probable cause of intoxication.
Further, through drinking to the point of unconsciousness,
Mitchell forfeited all opportunity, including the statutory
opportunity under Wis. Stat. § 343.305(4), to withdraw his
consent previously given; and therefore, § 343.305(3)(b)
applied, which under the totality of circumstances herein
presented reasonably permitted drawing Mitchell's blood.
Accordingly, we affirm Mitchell's convictions.
I. BACKGROUND
¶4 On the afternoon of May 30, 2013, officers from the
City of Sheboygan Police Department were dispatched in response
to a report that the caller had seen Mitchell, who appeared
intoxicated, get into a gray van and drive away. Between 30 and
45 minutes later, Officer Alex Jaeger made contact with
Mitchell. He found Mitchell walking near a beach. Mitchell was
wet, shirtless and covered in sand. Mitchell's speech was
slurred and he had difficulty maintaining his balance.
¶5 Mitchell admitted to Jaeger that he had been drinking
prior to driving and that he continued drinking at the beach.
He also stated that he had parked his vehicle "because he felt
he was too drunk to drive." Nearby, officers found the gray van
Mitchell was reported to have been driving.
¶6 After observing Mitchell's physical condition, Jaeger
believed that it would not be safe to conduct standard field
sobriety tests. Instead, he administered a preliminary breath
2
No. 2015AP304-CR
test, which indicated a blood alcohol concentration (BAC) of
0.24.2 Jaeger then arrested Mitchell for operating while
intoxicated.
¶7 Following his arrest, and during the drive to the
police station, Mitchell's physical condition deteriorated and
his demeanor became more "lethargic." Upon arrival at the
police station, it became apparent that an evidentiary breath
test would not be feasible. Instead, Jaeger opted to transport
Mitchell to a nearby hospital for a blood draw.
¶8 During the approximately eight-minute drive to the
hospital, Mitchell "appeared to be completely incapacitated,
[and] would not wake up with any type of stimulation." Upon
arriving at the hospital, Mitchell needed to be transported in a
wheelchair where he sat "slumped over" and unable to maintain an
upright seating position.
¶9 After Mitchell entered the hospital emergency room,
Jaeger read Mitchell the Informing the Accused form, thereby
reading Mitchell the statutory opportunity to withdraw his
consent to a blood draw. However, Mitchell was "so
incapacitated [that] he could not answer." Jaeger directed
hospital staff to draw a sample of Mitchell's blood.3 They did
so. Mitchell did not awaken during the procedure.
2
Preliminary breath tests are not sufficient evidence to
prove prohibited alcohol concentrations at trial. Wis. Stat.
§ 343.303.
3
There was no warrant sought prior to drawing Mitchell's
blood.
3
No. 2015AP304-CR
¶10 The blood draw occurred approximately one hour
following Mitchell's arrest. The analysis of his blood sample
showed a BAC of 0.222.
¶11 Mitchell was subsequently charged with driving with a
prohibited alcohol concentration (PAC), as well as operating a
motor vehicle while intoxicated (OWI), as a 7th offense. Prior
to trial, Mitchell moved to suppress the results of the blood
test. He alleged that the warrantless blood draw violated his
rights under the Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution.
¶12 In response to Mitchell's motion, the State contended
that he had consented to the blood draw when he drove his van on
Wisconsin highways according to a subsection of Wisconsin's
implied-consent law, Wis. Stat. § 343.305(2). The State also
contended that as an unconscious person, he is presumed not to
have withdrawn his consent, pursuant to § 343.305(3)(b). The
State expressly stated that it was not relying on exigent
circumstances to justify the blood draw.
¶13 The circuit court4 denied Mitchell's suppression motion
in reliance on Wis. Stat. § 343.305(3)(b). The circuit court
concluded that the officer had probable cause to believe that
Mitchell was driving while intoxicated, and therefore, the blood
4
The Honorable Terence T. Bourke of Sheboygan County
presided.
4
No. 2015AP304-CR
draw was lawful. A jury convicted Mitchell of the OWI and PAC
charges.
¶14 Mitchell appealed his conviction based on the sole
contention that the warrantless blood draw violated his Fourth
Amendment right to be free from "unreasonable searches and
seizures."
¶15 The court of appeals, noting the opportunity to
clarify the law in light of our recent decision in State v.
Howes, 2017 WI 18,
373 Wis. 2d 468,
893 N.W.2d 812,5 certified
the following questions: (1) whether "implied-consent," the
potential for which is described in
Wis. Stat. §§ 343.305(2) &
(3)(a), which arises through a driver's voluntary conduct in
operating a vehicle on Wisconsin roadways after drinking to
intoxication, is constitutionally sufficient consent, and
(2) whether a warrantless blood draw from an unconscious person
pursuant to
Wis. Stat. § 343.305(3)(b) violates the Fourth
Amendment.
5
The court of appeals, noting that two of its prior cases
had reached opposite conclusions, asked us to clarify whether
implied consent is equivalent to constitutionally sufficient
consent. Compare State v. Padley, 2014 WI App 65,
354
Wis. 2d 545,
849 N.W.2d 867 (holding that implied consent is not
constitutionally sufficient consent), with State v. Wintlend,
2002 WI App 314,
258 Wis. 2d 875,
655 N.W.2d 745 (holding that
implied consent is constitutionally sufficient). See also Cook
v. Cook,
208 Wis. 2d 166, 171,
560 N.W.2d 246 (1997) (concluding
that the court of appeals does not have the power to overrule or
modify one of its published opinions).
5
No. 2015AP304-CR
II. DISCUSSION
A. Standard of Review
¶16 Whether a suppression motion was properly denied
presents a question of constitutional fact. Howes, 373 Wis. 2d
468, ¶17 (citing State v. Tullberg,
2014 WI 134, ¶27,
359
Wis. 2d 421,
857 N.W.2d 120). We will not set aside a circuit
court's findings of historical fact unless they are clearly
erroneous. State v. Brereton,
2013 WI 17, ¶17,
345 Wis. 2d 563,
826 N.W.2d 369. However, the application of those facts to
Fourth Amendment principles presents a question of law that we
review independently.
Id.
B. Fourth Amendment General Principles
¶17 The Fourth Amendment to the United States
Constitution, and its Wisconsin counterpart, Article I, Section
11 of the Wisconsin Constitution,6 protect persons' rights to "be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const., amend. IV;
Wis. Const. art. I, § 11. "As the text makes clear, the
ultimate touchstone of the Fourth Amendment is reasonableness."
Riley v. California, 573 U.S. ___,
134 S. Ct. 2473, 2482 (2014)
(quoting Brigham City v. Stuart,
547 U.S. 398, 403 (2006)). As
a result, the Fourth Amendment does not prohibit all searches
undertaken by government actors, but "merely proscribes those
6
"Historically, we have interpreted Article I, Section 11
of the Wisconsin Constitution in accord with the Supreme Court's
interpretation of the Fourth Amendment." State v. Arias, 2008
WI 84, ¶20,
311 Wis. 2d 358,
752 N.W.2d 748.
6
No. 2015AP304-CR
which are unreasonable." Howes, 373 Wis. 2d 468, ¶21 (quoting
Tullberg,
359 Wis. 2d 421, ¶29 (quoting Florida v. Jimeno,
500
U.S. 248, 250 (1991))).
¶18 Drawing blood is a search of the person. Birchfield
v. North Dakota, 579 U.S. ___,
136 S. Ct. 2160, 2173 (2016)
(stating that "our cases establish that the taking of a blood
sample or the administration of a breath test is a search");
Howes,
373 Wis. 2d 468, ¶20 (concluding that a blood draw is a
search). Furthermore, a warrantless search is "presumptively
unreasonable." State v. Brar,
2017 WI 73, ¶16,
376 Wis. 2d 685,
898 N.W.2d 499 (quoting Tullberg,
359 Wis. 2d 421, ¶30).
¶19 However, "there are certain 'specifically established
and well-delineated' exceptions to the Fourth Amendment's
warrant requirement." Brar, 376 Wis. 2d 685, ¶16 (quoting State
v. Williams,
2002 WI 94, ¶18,
255 Wis. 2d 1,
646 N.W.2d 834).
One such exception is a search conducted pursuant to consent.
Brar,
376 Wis. 2d 685, ¶16. Warrantless consent searches are
reasonable; and therefore, they are consistent with the Fourth
Amendment. Fernandez v. California,
571 U.S. 292,
134
S. Ct. 1126, 1137 (2014); Schneckloth v. Bustamonte,
412 U.S.
218, 222 (1973).
C. Consent
¶20 In determining whether consent was given, we employ a
two-step process. First, we examine whether relevant words,
gestures or conduct supports a finding of consent. State v.
Artic, 2010 WI 83, ¶30,
327 Wis. 2d 392,
786 N.W.2d 430.
7
No. 2015AP304-CR
Second, we examine whether the consent was voluntarily given.
Id.
1. Implied Consent
¶21 As we have explained, consent to search need not be
given verbally. State v. Phillips, 218 Wis. 2d 180, 197,
577
N.W.2d 794 (1998) (citing United States v. Griffin,
530
F.2d 739, 741 (7th Cir. 1976); United States v. Donlon,
909 F.2d
650, 652 (1st Cir. 1990) invalidated on other grounds by United
States v. Omar,
104 F.3d 519 (1st Cir. 1997)). Consent given
through conduct "provides a sufficient basis on which to find
that the defendant consented to the search." Phillips,
218
Wis. 2d at 197 (concluding that defendant's affirmative
assistance in the search of his bedroom demonstrated his consent
to the search). "Through conduct, an individual may impliedly
consent to be searched." Brar,
376 Wis. 2d 685, ¶17.
¶22 In addition, the United States Supreme Court has
recently explained that consent also may be shown by the context
in which consent arises. Birchfield, 136 S. Ct. at 2185. In
Birchfield, the Court said that "[i]t is well established that a
search is reasonable when the subject consents, and that
sometimes consent to a search need not be express but may be
fairly inferred from context."
Id. (internal citations
omitted). The Court's connection between context and consent
was made in the course of Birchfield's review of searches
incident to arrest for OWI in states that have implied-consent
laws. Birchfield cited two cases that demonstrated
constitutionally sufficient consent because of the context in
8
No. 2015AP304-CR
which consent was lawfully implied: Florida v. Jardines, 569
U.S. 1 (2013) and Marshall v. Barlow's, Inc.,
436 U.S. 307
(1978).
¶23 In Jardines, the Court, through Justice Scalia,
recognized the sanctity of the home and that at the "very core"
of the Fourth Amendment "stands 'the right of a man to retreat
into his own home and there be free from unreasonable
governmental intrusion,'" and that this right extended to the
curtilage of the home, including the home's front porch.
Jardines, 569 U.S. at 6–7 (quoting Silverman v. United States,
365 U.S. 505, 511 (1961)).
¶24 However, the Supreme Court also said that the sanctity
of the curtilage of one's home is not absolute and certain
permissions to enter may be implied. Jardines, 569 U.S. at 8.
In Jardines, the Court recognized that by putting a knocker on
his door, the homeowner had given implicit consent for visitors
to approach and said that the implicit granting of such
permission "does not require fine-grained legal knowledge."
Id.
Rather, law enforcement could approach a homeowner's front door
"precisely because that is 'no more than any private citizen
might do.'"
Id. (quoting Kentucky v. King,
563 U.S. 452, 469
(2011)). The Court recognized that a homeowner who places a
knocker on his front door impliedly invites visitors to approach
and enter upon the home's curtilage. Jardines,
569 U.S. at 8.
Stated otherwise, in the context established by the homeowner,
consent to enter the curtilage and approach the front door was
given.
9
No. 2015AP304-CR
¶25 The other decision referenced in Birchfield, Marshall
v. Barlow's, Inc., noted that while generally the Fourth
Amendment prohibits searches without a warrant, certain
businesses and industries are subject to exception. Marshall,
436 U.S. at 313. Indeed, "pervasively regulated business[es]"
and "'closely regulated' industries 'long subject to close
supervision and inspection,'" are subject to warrant exceptions
for certain searches.
Id. (quoting Colonnade Catering Corp. v.
United States,
397 U.S. 72, 73-75, 77 (1970) (wherein the Court
held that the statutory right to enter and inspect a facility
authorized to serve liquor required no warrant for the search).
¶26 The Fourth Amendment exception upheld in Colonnade was
grounded in "unique circumstances" in that "[c]ertain industries
have such a history of government oversight that no reasonable
expectation of privacy, could exist for a proprietor over the
stock of such an enterprise." Marshall, 436 U.S. at 313
(internal citation omitted). Referring to the liquor and
firearms industries, the Court said that "when an entrepreneur
embarks upon such a business, he has voluntarily chosen to
subject himself to a full arsenal of governmental regulation."
Id. According to the Court, businesses in these industries are
part of "a long tradition of close government supervision, of
which any person who chooses to enter such a business must
already be aware."
Id. By choosing to participate in certain
businesses, the Court concluded that those persons had
"accept[ed] the burdens as well as the benefits of their trade,"
in a manner different from other businesses and thus "in effect
10
No. 2015AP304-CR
consents to the restrictions placed upon him." Id. Once again,
it was the context in which such businesses are operated that
evidenced voluntary consent to be subjected to significant
governmental regulation. Stated otherwise, the context in which
one operates a business involved in alcohol or firearms had a
well-known history of significant governmental regulation such
that an owner of such a business would have no reasonable
expectation of privacy from governmental oversight of his
business.
Id.
¶27 Birchfield's discussion of the relationship between
context and consent instructs that context is part of the
totality of circumstances that courts should review when consent
to search is at issue. In regard to the context of highway
regulation, we note that the statutes at issue here are the
legislature's attempt to stop the injuries and deaths drunken
drivers inflict year after year on others who use Wisconsin
highways.7 That drunken driving has resulted in and necessarily
increased state regulation of the privilege of driving on public
roadways is well known. Therefore, the context of well-
publicized regulations forms part of the totality of
circumstances we examine to determine whether a driver who has
been arrested for OWI consented to be searched.
7
The same is true across the nation. For example, it has
been reported that in 2016 drunken driving took one life
every 50 minutes in the United States. See National
Highway Traffic Safety Administration, Drunk Driving,
https://www.nhtsa.gov/risky-driving/drunk-driving (last visited
June 25, 2018).
11
No. 2015AP304-CR
¶28 Some of the regulations to which drivers consent have
never been challenged. For example, they agree to drive on the
right side of the road, Wis. Stat. § 346.05; to yield the right-
of-way to emergency vehicles,
Wis. Stat. § 346.19; to comply
with posted speed limits,
Wis. Stat. § 346.57(4); and not to
drive with a prohibited blood alcohol concentration,
Wis. Stat.
§ 346.63(1)(b). While these regulations do not have
implications for constitutional rights, drivers do not sign a
form acknowledging these obligations each time they get into
their vehicle; yet, they are held accountable and required to
abide by each of them because they chose to drive a vehicle upon
public highways.
¶29 Just as Wisconsin drivers consent to the above-listed
obligations by their conduct of driving on Wisconsin's roads, in
the context of significant, well-publicized laws designed to
curb drunken driving, they also consent to an evidentiary
drawing of blood upon a showing of probable cause to believe
that they operated vehicles while intoxicated.8 This qualified
consent to search is required in order to exercise the privilege
of driving in Wisconsin.9 As Birchfield explained, implied
consent laws condition "the privilege of driving on state roads
8
Of course, probable cause to believe that a driver is
operating while intoxicated is sufficient to arrest the driver.
9
Probable cause to believe that a driver operated a vehicle
while intoxicated is required before the driver must provide
samples of breath, blood or urine. Wis. Stat. §§ 343.305(2) &
(3)(a).
12
No. 2015AP304-CR
and [] the privilege would be rescinded if a suspected drunk
driver refused to honor that condition." Birchfield, 136 S. Ct.
at 2169. Consent is complete at the moment the driver begins to
operate a vehicle upon Wisconsin roadways if the driver
evidences probable cause to believe that he or she is operating
a vehicle while intoxicated.
Wis. Stat. §§ 343.305(2) &
(3)(a).10
¶30 As acknowledged by the United States Supreme Court,
driving on state highways is a privilege; it is not a right.
Id. In Wisconsin, it is a statutory privilege that comes with
10
The point in time when a driver consents has been
described in various ways based on the facts of the case and the
arguments of counsel. For example, in Wintlend, 258 Wis. 2d
875, the court of appeals addressed Wintlend's argument that the
officer's reading the Informing the Accused form to him coerced
consent. Id., ¶8. The court rejected his argument and
concluded that the statutory terms chosen by the legislature
demonstrated that consent had been given before Wintlend was
read the Informing the Accused form. Id., ¶16.
In State v. Neitzel, 95 Wis. 2d 191,
289 N.W.2d 828 (1980),
Neitzel's license was suspended for 60 days for his unreasonable
refusal to permit chemical testing.
Id. at 192. Neitzel argued
that the refusal was not unreasonable because he had asked to
consult his attorney before deciding and his request was denied.
Id. at 193. In dismissing Neitzel's argument, we said that
under the circumstances no right to counsel was provided.
Id.
We also explained that a driver must be arrested before he or
she could be asked to submit to chemical testing, but custody at
that point did not implicate a right to counsel.
Id. at 200.
Because the focus in Neitzel was on an alleged right to counsel,
our discussion addressed that concern. However, our discussion
herein explains why constitutionally sufficient consent occurs
when a driver operates a vehicle on Wisconsin's highways and
drinks or uses drugs to a point where the driver exhibits
probable cause that he or she is intoxicated.
13
No. 2015AP304-CR
statutory obligations when that privilege is exercised. Steeno
v. State, 85 Wis. 2d 663, 671,
271 N.W.2d 396 (1978) ("The
granting of an automobile license to operate a motor vehicle is
a privilege and not an inherent right.").
¶31 The United States Supreme Court recognized that
implied consent laws are the context in which constitutionally
sufficient consent for chemical testing may be given when it
opined, "our prior opinions have referred approvingly to the
general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse
to comply. . . . [N]othing we say here should be read to cast
doubt on them." Birchfield, 136 S. Ct. at 2185.
¶32 Birchfield also established a "categorical" rule that
a breath test does not implicate "significant privacy concerns,"
and therefore, a warrant is not needed to administer a breath
test. Birchfield, 136 S. Ct. at 2176-84. This is an
interesting conclusion because of the Court's previous
statements that there are no bright-line rules for determining
when a warrant is not required. See Missouri v. McNeely,
569
U.S. 141, 158 (2013). It is also interesting because a driver's
bodily alcohol concentration can be determined from evidentiary
breath tests as well as from blood tests.
¶33 Birchfield went on to explain, "It is another matter,
however, for a State not only to insist upon an intrusive blood
test, but also to impose criminal penalties on the refusal to
submit to such a test. There must be a limit to the
consequences to which motorists may be deemed to have consented
14
No. 2015AP304-CR
by virtue of a decision to drive on public roads." Birchfield,
136 S. Ct. at 2185 (emphasis added). The limit on the
consequences of the decision to drive while intoxicated was the
imposition of criminal penalties for refusing to permit a blood
draw.
Id.
¶34 Criminal penalties for withdrawing consent to a blood
draw were beyond the scope of implied-consent laws because there
was an insufficient nexus between the consequence of criminal
penalties and choosing to drive on the highways in those states
that imposed criminal penalties for withdrawing consent to
provide a blood sample for testing. Id. at 2186. In Wisconsin,
the consequences of refusing to permit a blood draw are civil
and evidentiary, not criminal.
Wis. Stat. § 343.305(4).
¶35 Relevant to assessing future challenges to refusal to
submit to a blood draw, the Supreme Court adopted the following
standard: motorists are "deemed to have consented to only those
conditions that are 'reasonable' in that they have a 'nexus' to
the privilege of driving and entail penalties that are
proportional to severity of the violation." Id. When applying
that standard, the Court concluded that "motorists cannot be
deemed to have consented to submit to a blood test on pain of
committing a criminal offense [for refusing to submit]."
Id.
However, imposing "civil penalties and evidentiary consequences"
on motorists who refuse to submit to a blood draw are
permissible because civil penalties, such as license revocation,
have a nexus to driving.
Id. at 2185 (citing McNeely,
569 U.S.
at 160-61).
15
No. 2015AP304-CR
¶36 Wisconsin imposes no criminal penalties for
withdrawing consent previously given. The only criminal
consequence imposed for drunken driving in Wisconsin arises from
repeated OWI and PAC convictions and from convictions for
causing injury or death by intoxicated use of a vehicle. See
generally Wis. Stat. § 346.65. Criminal penalties do not arise
from withdrawing consent to blood draws.
Wis. Stat.
§ 343.305(4). All penalties for refusal are administrative and
evidentiary. For example, a refusal that leads to a first OWI
conviction subjects a defendant to a license suspension and a
forfeiture but no jail time.
Wis. Stat. §§ 343.305(4) &
346.65(1)(a).
¶37 Accordingly, we confirm that because it is
constitutionally permissible to impose civil penalties as a
consequence for refusing to submit to a blood draw, as Wis.
Stat. § 343.305(4) provides, Wisconsin's implied-consent
statutes, §§ 343.305(2) & (3)(a), describe a context consistent
with Birchfield where constitutionally sufficient consent to
search arises through conduct. Birchfield,
136 S. Ct. at 2185.
Stated otherwise, it is not statutes that grant consent to
search, but rather, consent is granted by the driver's
exercising the privilege of driving on Wisconsin highways when
he or she has imbibed sufficient alcohol or drugs to become
intoxicated. Furthermore, if the consent that arises when a
driver's conduct falls within §§ 343.305(2) & (3)(a) were not
constitutionally sufficient consent for a blood draw, there
16
No. 2015AP304-CR
would be no reason to provide a statutory opportunity to
withdraw consent under § 343.305(4).
¶38 Furthermore, we presume that drivers know the laws
applicable to the roadways on which they drive. State v. Weber,
2016 WI 96, ¶78,
372 Wis. 2d 202,
887 N.W.2d 554 (Kelly, J.,
concurring). Likewise, we also recognize, as has the United
States Supreme Court, that in a state with civil penalties for
refusal to submit to a blood draw, "a person suspected of drunk
driving has no constitutional right to refuse to take a blood-
alcohol test." South Dakota v. Neville,
459 U.S. 553, 560 n.10
(1983).
¶39 In Neville, the Supreme Court examined whether
Neville's refusal to submit to a blood-alcohol test could be
used as evidence of guilt for drunken driving at his trial. The
circuit court of South Dakota had suppressed Neville's refusal
to submit to a blood-alcohol test based on the circuit court's
conclusion that evidence of refusal violated Neville's federal
constitutional rights. Id. at 556. The Supreme Court reversed
the suppression because Neville's "right to refuse the blood-
alcohol test [] is simply a matter of grace bestowed by the
South Dakota legislature," not a constitutional right.
Id. at
565. As the Court further explained, because a driver had no
constitutional right to refuse a blood-draw when there was
probable cause to arrest for OWI, the driver's refusal could be
used against him at trial as evidence of guilt. Id.; see also
Howes,
373 Wis. 2d 468, ¶62 (Gableman, J., concurring) ("[A]
17
No. 2015AP304-CR
driver has no statutory or constitutional right to refuse [blood
alcohol testing] without consequences.").11
¶40 Of course, consent voluntarily-given before a blood
draw may be withdrawn with or without a statutory reminder.
United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005).
However, when consent is withdrawn, civil consequences may
follow because the opportunity to withdraw voluntarily given
consent is not of constitutional significance. Neville,
459
U.S. at 565;
Wis. Stat. § 343.305(4).
¶41 The legitimacy of implied-consent laws has been
supported repeatedly by the United States Supreme Court. In
McNeely, the Court stated that "[n]o one can seriously dispute
the magnitude of the drunken driving problem or the States'
interest in eradicating it." McNeely, 569 U.S. at 160 (quoting
Mich. Dep't of State Police v. Sitz,
496 U.S. 444, 451 (1990)).
The Court further recognized that "drunk driving continues to
exact a terrible toll on our society," and that "all 50 States
have adopted implied consent laws that require motorists, as a
condition of operating a motor vehicle within the State, to
11
Justices Shirley Abrahamson, Ann Walsh Bradley, Rebecca
Grassl Bradley and Daniel Kelly manufacture a constitutional
right to refuse blood-draws to test for blood-alcohol content of
drivers who operate vehicles while intoxicated, notwithstanding
the United States Supreme Court's clearly stated explanation in
South Dakota v. Neville, 459 U.S. 553, 560 n.10, 565 (1983),
that drunken drivers have no constitutional right to refuse
blood-alcohol testing. State v. Dalton,
2018 WI 85, ¶61, __
Wis. 2d __, __ N.W.2d (manufacturing a constitutional right for
drunken drivers to refuse blood-alcohol testing).
18
No. 2015AP304-CR
consent to BAC testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense." McNeely, 569
U.S. at 160–61.
¶42 Other states are in accord with our conclusion that
drivers give constitutionally sufficient consent through driving
on state highways and drinking to a point evidencing probable
cause of intoxication. For example, the Supreme Court of
Colorado held that warrants need not be obtained for unconscious
drivers as the result of their previously-given consent under
Colorado's "Expressed Consent Statute." People v. Hyde, 393
P.3d 962 (Colo. 2017). The Colorado court recognized that
"Hyde's statutory consent satisfied the consent exception to the
Fourth Amendment warrant requirement." Id., ¶3. Similarly, the
Supreme Court of Kentucky has said that drivers "consent[] to
testing by operating a vehicle in Kentucky." Helton v.
Commonwealth,
299 S.W.3d 555, 559 (Ky. 2009).
¶43 As judicial opinions of other states, as well as the
United States Supreme Court's prior statements show, "[i]mplied
consent is not a second-tier form of consent." Brar, 376
Wis. 2d 685, ¶23. Rather, when a driver chooses to operate a
vehicle upon Wisconsin's roads, he or she does so charged with
knowing the laws of this state. See Byrne v. State,
12 Wis. 577
(*519), 580 (*521) (1860).
¶44 Those laws include Wis. Stat. §§ 343.305(2) & (3)(a)
that function together. Section 343.305(2) provides that anyone
who "drives or operates a motor vehicle upon the public highways
of this state . . . is deemed to have given consent to one or
19
No. 2015AP304-CR
more tests of his or her breath, blood or urine, for the purpose
of determining the presence or quantity in his or her blood or
breath, of [alcohol or other prohibited substances], when
requested to do so by a law enforcement officer."
Section 343.305(3)(a) applies when a driver is arrested based on
probable cause to believe that he or she is intoxicated, wherein
a driver's conduct completes his or her obligation to give
samples of breath, blood or urine.
¶45 In the case before us, Mitchell chose to avail himself
of the privilege of driving upon Wisconsin's roads. Because he
did so while intoxicated, by his conduct he consented to the
effect of laws that are relevant to exercising that privilege.
He did not need to read them off one-by-one, and then sign a
piece of paper acknowledging his consent to be subject to those
rules and penalties for failing to follow them. By driving in
Wisconsin, Mitchell consented to have samples of his breath,
blood or urine taken upon the request of a law enforcement
officer who had probable cause to believe he was intoxicated,
unless he withdrew such consent. Wis. Stat. §§ 343.305(2) and
(3)(a).
2. Voluntary Consent
¶46 A determination that consent has been given is not the
end of our inquiry, we also must determine whether the consent
was given "freely and voluntarily." Artic, 327 Wis. 2d 392,
¶32. "However, the State need not demonstrate that consent was
given knowingly or intelligently." Brar,
376 Wis. 2d 685, ¶26
(citing Schneckloth,
412 U.S. at 241 ("Nothing, either in the
20
No. 2015AP304-CR
purposes behind requiring a 'knowing' and 'intelligent' waiver
of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the
constitutional guarantee against unreasonable searches and
seizures.")). The concept of "'voluntariness' reflects an
accommodation of complex, somewhat conflicting values." Artic,
327 Wis. 2d 392, ¶32 (citing Schneckloth, 412 U.S. at 224–25).
¶47 "The test for voluntariness is whether consent to
search was given in the absence of duress or coercion, either
express or implied." Phillips, 218 Wis. 2d at 197. In
evaluating the voluntariness of consent, we evaluate "the
totality of all the surrounding circumstances." Artic,
327
Wis. 2d 392, ¶32 (quoting Schneckloth,
412 U.S. at 226). No
single criterion controls voluntariness. Phillips,
218 Wis. 2d
at 197.
¶48 In making a determination of voluntariness, the State
bears the burden to prove by clear and convincing evidence that
consent was given voluntarily. Id. Our determination of the
voluntariness of consent is a mixed question of fact and law.
Id. In addition, voluntariness is a determination that we
consider relative to
Wis. Stat. §§ 343.305(2) & (3)(a) when a
driver commences operation of his or her vehicle on Wisconsin
roadways and under § 343.305(3)(b) when an unconscious driver
has not availed himself of an opportunity to withdraw consent
previously given.
¶49 Consent to search that arises in the context of
Wisconsin's implied-consent laws is voluntary in one respect
21
No. 2015AP304-CR
that is similar to the voluntariness of consent in Colonnade
because Wisconsin has a long history of close governmental
regulation of its highways in regard to drunken drivers. Stated
otherwise, the privilege of driving on Wisconsin highways comes
within the context of well-publicized requirements to provide
samples of breath, blood or urine to law enforcement who have
probable cause to believe that the driver is intoxicated.
¶50 We now further consider voluntary consent under four
subsections of Wisconsin's implied-consent law at issue in the
case before us: Wis. Stat. §§ 343.305(2), 343.305(3)(a),
343.305(4) and 343.305(3)(b).12
a. Wisconsin Stat. §§ 343.305(2) & (3)(a)
¶51 The voluntariness of consent by conduct that occurs
when a driver commences operation of his vehicle on Wisconsin
roadways is unequivocal and constitutionally sufficient when he
or she evidences the indicia of intoxication such that there is
probable cause to believe he or she is driving under the
influence. Stated otherwise, voluntary consent arises through
the effect of a driver's conduct in the context of Wisconsin
law, Wis. Stat. §§ 343.305(2) and 343.305(3)(a).
12
We note that other circumstances are impacted by
Wisconsin implied consent law that we do not discuss here. See
Wis. Stat. § 343.305(3)(ar)2., causing death or great bodily
harm when there is reason to believe the driver violated state
or local traffic law. Here, we limit our discussion to those
circumstances where there are no facts in addition to probable
cause to believe the driver was intoxicated.
22
No. 2015AP304-CR
¶52 Wisconsin Stat. § 343.305(2) clearly provides, "[a]ny
person who . . . drives or operates a motor vehicle upon the
public highways of this state . . . is deemed to have given
consent to one or more tests of his or her breath, blood or
urine, for the purpose of determining the presence or quantity
in his or her blood or breath, of alcohol, controlled
substances . . . ." A driver's consent is conditioned on
probable cause to believe he or she is intoxicated or has caused
serious injury or death. As Wis. Stat. § 343.305(3)(a)
provides, "Upon arrest of a person for violation of s. 346.63(1)
[driving while intoxicated], (2m) [underage drinking], or
(5) [commercial driver] or . . . (2) [causing injury] . . . a
law enforcement officer may request the person to provide one or
more samples of his or her breath, blood or urine." Therefore,
as an initial matter, one consents to search by driving on
Wisconsin roadways when one has imbibed sufficient alcohol to
support probable cause to arrest. The choice to drive on
Wisconsin roadways and the choice to drink or ingest drugs to
the point of probable cause to arrest for OWI are voluntary
choices.
b. Wisconsin Stat. § 343.305(4)
¶53 Wisconsin Stat. § 343.305(4) provides a statutory
opportunity to withdraw consent given under §§ 343.305(2) and
(3)(a), when an officer has probable cause to arrest the driver.
However, civil penalties may follow when consent is withdrawn.
Section 343.305(4) provides in relevant part:
23
No. 2015AP304-CR
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 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 to
determine the concentration of alcohol or drugs in
your system. . . . 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.13
It is helpful to keep subsection (4) in mind when discussing
Wis. Stat. § 343.305(3)(b), which is central to this appeal.
¶54 Wisconsin Stat. § 343.305(4) provides a statutory
opportunity to withdraw consent, even though a driver has
operated a vehicle on Wisconsin roads and has imbibed sufficient
alcohol to be arrested for OWI. Of course, one may withdraw
consent previously given with or without a statutory reminder.
See Sanders, 424 F.3d at 774. Nevertheless, a driver may
13
Justices Shirley Abrahamson, Ann Walsh Bradley, Rebecca
Grassl Bradley and Daniel Kelly strike down, sub silentio, Wis.
Stat. § 343.305(4)'s provision that the fact of refusal can be
used against a drunken driver in court because they label
refusal of chemical testing a constitutional right. Dalton,
__Wis. 2d __, ¶61. However, the United States Supreme Court has
concluded that refusing to take a blood test is not of
constitutional significance and can be used against the
defendant at trial. Neville,
459 U.S. at 565. The majority
opinion in Dalton and the separate writings in this case will
create confusion in Wisconsin courts on the admissibility of
refusal evidence because Neville has not been overruled and
remains authoritative on whether refusal is or is not a
constitutional right.
24
No. 2015AP304-CR
forfeit the driver's opportunity to withdraw consent by failing
to timely engage it. State v. Ndina, 2009 WI 21, ¶29,
315
Wis. 2d 653,
761 N.W.2d 612. Furthermore, a defendant may
forfeit an opportunity he or she otherwise would have by his or
her conduct. State v. Anthony,
2015 WI 20, ¶59,
361 Wis. 2d
116,
860 N.W.2d 10.
¶55 Here, Mitchell drank sufficient alcohol to render
himself unconscious. He had a BAC of 0.222. It is no wonder
that he passed out.14 Through this conduct, he forfeited all
opportunity to withdraw the consent to search that he had given.
c. Wisconsin Stat. § 343.305(3)(b)
¶56 Mitchell was unconscious when his blood was drawn.
Wisconsin Stat. § 343.305(3)(b) addresses blood draws from
unconscious persons who have not availed themselves of the
statutory opportunity that is provided by § 343.305(4) or
otherwise taken steps to withdraw consent. Some who are
unconscious have imbibed sufficient alcohol or drugs to render
themselves unconscious; others may be unconscious due to an
injury sustained in an accident. Section 343.305(3)(b) provides
in relevant part:
A person who is unconscious or otherwise not capable
of withdrawing consent is presumed not to have
withdrawn consent under this subsection, and if a law
enforcement officer has probable cause to believe that
14
See National Institute on Alcohol Abuse and Alcoholism,
Alcohol Overdose: The Dangers of Drinking Too Much,
https://pubs.niaaa.nih.gov/publications/AlcoholOverdoseFactsheet
/Overdosefact.htm (Oct. 2015).
25
No. 2015AP304-CR
the person has violated s. 346.63(1) [driving while
intoxicated], (2m) [underage drinking] or
(5) [commercial driver] . . . [or caused injury] one
or more samples specified in par. (a) or (am) may be
administered to the person.
¶57 The Fourth Amendment question is whether drawing
Mitchell's blood while he was unconscious was unreasonable and
therefore in violation of Fourth Amendment's prohibitions
against unreasonable searches. Mitchell claims the blood draw
was unreasonable because he was unconscious when the Informing
the Accused form was read to him. The State claims that the
blood draw was reasonable because Jaeger had arrested Mitchell
for driving while intoxicated.15
¶58 Mitchell's self-induced physical condition does not
render Wis. Stat. § 343.305(3)(b)'s presumption unreasonable
under the totality of circumstances applicable to our Fourth
15
The State's contention could be read to assert that the
blood draw was a search incident to arrest within the
traditional exception to the Fourth Amendment's warrant
requirement.
Mitchell's blood draw parallels the search incident to
arrest doctrine, as probable cause to arrest Mitchell for
driving while intoxicated is fully supported by the record.
That a search incident to arrest is an exception to the warrant
requirement is an important principle to keep in mind. This is
so because all unconscious drivers are not subjected to a blood
draw under Wisconsin implied consent laws. Only those drivers
for whom "a law enforcement officer has probable cause to
believe that the person has violated [laws regulating use of
intoxicants]" can be searched. Wis. Stat. § 343.305(3)(b).
This limitation also is consistent with the reasonableness
requirement of the Fourth Amendment. For an unconscious driver,
a blood draw is the only means by which to obtain evidence of
the crime for which he or she has been charged.
26
No. 2015AP304-CR
Amendment discussion. First, by exercising the privilege of
driving on Wisconsin highways, Mitchell's conduct demonstrated
consent to provide breath, blood or urine samples to be tested
in accord with §§ 343.305(2) & (3)(a) if law enforcement had
probable cause to believe that he had operated his vehicle while
intoxicated. Second, Jaeger had probable cause to arrest
Mitchell for driving while intoxicated. His speech was slurred;
he smelled of alcohol; he had difficulty maintaining his
balance; his preliminary breath test showed a BAC of 0.24, which
indicates significant intoxication. Third, Mitchell chose to
drink sufficient alcohol to produce unconsciousness. Fourth, by
his conduct, Mitchell forfeited the statutory opportunity to
assert that he had "withdrawn consent" he previously gave.
Ndina, 315 Wis. 2d 653, ¶29; Anthony,
361 Wis. 2d 116, ¶59.
¶59 Therefore, under the totality of circumstances as
applied to Mitchell, Wis. Stat. § 343.305(3)(b)'s presumption is
reasonable. Accordingly, drawing Mitchell's blood was
reasonable, and no Fourth Amendment violation occurred.
¶60 Because we conclude that consent given by drivers
whose conduct falls within the parameters of Wis. Stat.
§ 343.305 is constitutionally sufficient consent to withstand
Fourth Amendment scrutiny, and although consent must be
voluntary, it need not be knowing, we overrule State v. Padley,
2014 WI App 65,
354 Wis. 2d 545,
849 N.W.2d 867. We do so for
two reasons. First, we clarify that Padley has no precedential
effect because its holding is in direct conflict with an
earlier, published court of appeals decision, State v. Wintlend,
27
No. 2015AP304-CR
2002 WI App 314,
258 Wis. 2d 875,
655 N.W.2d 745. Cook v. Cook,
208 Wis. 2d 166, 171,
560 N.W.2d 246 (1997) (concluding that the
court of appeals cannot overrule or modify one of its published
opinions). Second, Padley is simply wrong as a matter of law.
There, the court of appeals said that "implied consent" is
different than "actual consent," and that actual consent is
given only when a driver affirms his or her previously-given
implied consent after being read the Informing the Accused form.
See Padley,
354 Wis. 2d 545, ¶38. The court also incorporated
the concept of "knowingly" into consent law. Id., ¶62. Under
the reasoning in Padley, driving on Wisconsin highways and
drinking, using drugs or being involved in an accident causing
death or serious bodily injury while violating a state or local
traffic law does not provide constitutionally sufficient consent
through conduct. We conclude otherwise.
¶61 The question that remains in regard to Mitchell is
whether Wis. Stat. § 343.304(3)(b)'s presumption that consent
has not been withdrawn is reasonable for a driver who has
suffered an injury rendering him or her unconscious, but for
whom there is probable cause to believe that he or she operated
a vehicle in violation of laws regulating the use of
intoxicants.
¶62 We begin by noting that all drivers, by their conduct,
consent to provide samples of their breath, blood or urine when
requested by law enforcement personnel who have probable cause
to arrest for driving while intoxicated. Wis. Stat.
§§ 343.305(2) & (3)(a). We also recognize that consent to
28
No. 2015AP304-CR
search once given may be withdrawn. See Sanders, 424 F.3d at
774. Although no magic words are required to withdraw consent,
the intent to withdraw must be unequivocal.
Id. Withdrawal of
consent given under implied-consent laws also may be withdrawn.
Wisconsin Stat. § 343.305(4) reminds drivers of the opportunity
to "withdraw" consent previously given. See also State v.
Arrotta,
339 P.3d 1177, 1178 (Idaho 2014) (concluding that under
Idaho implied-consent laws, a suspected drunken driver can
withdraw his or her consent to test for the presence of
alcohol). However, for many unconscious drivers, it may be that
they have taken no steps to demonstrate unequivocal intent to
withdraw consent previously given.
¶63 Furthermore, the opportunity to refuse a blood test
when there is probable cause to believe the driver is
intoxicated is not of constitutional significance, as is shown
by Supreme Court jurisprudence concluding that withdrawal of
consent may be used as evidence of guilt at trial. State v.
Crandall, 133 Wis. 2d 251, 255,
394 N.W.2d 905 (1986) (citing
Neville,
459 U.S. at 565 (concluding that it is not
"fundamentally unfair for South Dakota to use the refusal to
take the test as evidence of guilt, even though respondent was
not specifically warned that his refusal could be used against
him at trial")).
¶64 In addition, Wis. Stat. § 343.305(3)(b)'s presumption
affects only unconscious drivers for whom law enforcement has
probable cause to believe that the driver has violated statutory
proscriptions on use of intoxicants. Therefore, those drivers
29
No. 2015AP304-CR
who are unconscious but for whom law enforcement does not have
probable cause to believe they drove while intoxicated will not
be subject to the presumption of § 343.305(3)(b).
¶65 For drivers for whom the presumption applies, Wis.
Stat. § 343.305(3)(b) is consistent with United States Supreme
Court precedent that a warrantless search at arrest does not
violate the Fourth Amendment when there is consent given prior
to the search. United States v. Robinson,
414 U.S. 218, 224
(1973); Schneckloth,
412 U.S. at 222. Therefore, we conclude
that under the totality of circumstances the presumption of
§ 343.305(3)(b) is reasonable. Accordingly, it does not violate
Fourth Amendment rights of one for whom law enforcement has
probable cause to believe he or she operated a vehicle after
consuming alcohol or drugs to the point of intoxication.
III. CONCLUSION
¶66 We conclude that Mitchell voluntarily consented to a
blood draw by his conduct of driving on Wisconsin's roads and
drinking to a point evidencing probable cause of intoxication.
Further, through drinking to the point of unconsciousness,
Mitchell forfeited all opportunity, including the statutory
opportunity under Wis. Stat. § 343.305(4), to withdraw his
consent previously given; and therefore, § 343.305(3)(b)
applied, which under the totality of circumstances reasonably
permitted drawing Mitchell's blood. Accordingly, we affirm
Mitchell's convictions.
By the Court.—The judgment of the circuit court is
affirmed.
30
No. 2015AP304-CR
31
No. 2015AP304-CR.dk
¶67 DANIEL KELLY, J. (concurring). I do not believe the
state can waive the people's constitutional protections against
the state. I nonetheless concur because performing a blood draw
on an unconscious individual who has been arrested for operating
a motor vehicle while intoxicated in violation of Wis. Stat.
§ 346.63 ("OWI") is reasonable within the meaning of the Fourth
Amendment to the United States Constitution.1
¶68 This is not the first time we have considered whether
a law enforcement officer may perform a blood draw on an
individual pursuant to "consent" granted by Wis. Stat.
§ 343.305. Last term we considered whether such "implied
consent" can satisfy the requirements of the Fourth Amendment to
the United States Constitution. See State v. Brar,
2017 WI 73,
¶¶15, 28-29,
376 Wis. 2d 685,
898 N.W.2d 99 (lead opinion). No
opinion attracted a majority of the court. I concurred because
Mr. Brar was conscious and had provided express consent to a
blood draw, a point on which a majority of the court agreed.
However, because the court nonetheless addressed the
constitutionality of the implied consent statute, I also
explained why I believe that "implied consent" is actually
consent granted by the legislature, not the suspect, and why
legislative consent cannot satisfy the mandates of our State and
Federal Constitutions. See
id., ¶¶44, 59 (Kelly, J.,
concurring); see also
id., ¶15 & n.6 (lead opinion) (discussing
1
I join paragraphs 1-2 and 4-28 of the lead opinion.
1
No. 2015AP304-CR.dk
federal and state constitutional provisions). I incorporate
that analysis here in toto.
¶69 The court today is even more ambitious than it was in
Brar. Legislatively-granted consent to perform a blood draw is
justified, the court says, for the same reasons certain searches
of pervasively-regulated businesses do not require warrants.
Lead op., ¶¶25-28 (citing Marshall v. Barlow's, Inc., 436
U.S. 307 (1978); Colonnade Catering Corp. v. United States,
397
U.S. 72 (1970)). But the court misunderstands the significance
of that line of cases. The searches considered there were not
reasonable because a legislature said they were; they were
reasonable because they did not intrude on the affected person's
reasonable expectation of privacy. In Colonnade Catering, for
example, the United States Supreme Court surveyed the regulatory
history of the liquor industry, reaching as far back as England
of the eighteenth century. Colonnade Catering,
397 U.S. at 75.
The whole point of rehearsing that history was to demonstrate
that a liquor retailer had no reasonable expectation his
premises would be free from regular governmental inspection.
See
id. Therefore, the congressionally-developed inspection
regime at issue in Colonnade Catering was constitutional because
it operated in an area in which the retailer had no reasonable
expectation of privacy. The United States Supreme Court has
treated the firearm industry in a similar fashion. In United
States v. Biswell,
406 U.S. 311 (1972), the Court said "[i]t is
also apparent that if the law is to be properly enforced and
inspection made effective, inspections without warrant must be
2
No. 2015AP304-CR.dk
deemed reasonable official conduct under the Fourth Amendment."
Id. at 316. Although the Court chose a stilted means of
explaining itself, it is apparent the Court had concluded that
the inspection regime in that case did not reach into an area in
which the pawn dealer had a reasonable expectation of privacy.
See
id. The "pervasive-regulation" doctrine, therefore, allows
warrantless inspection regimes only when the nature of the
business at issue is such that the proprietor does not have an
expectation of privacy.
¶70 The court should not venture into the "pervasive-
regulation" arm of Fourth Amendment jurisprudence without a
great deal of fear and trepidation. The rationale justifying
this doctrine is too easy to abuse. If increased regulation
decreases the areas in which individuals have a reasonable
expectation of privacy, then the Fourth Amendment's protections
are effectively contingent on the reach of the regulatory state.
Through combined legislative and executive activity, oceans of
regulations can wear away zones of privacy, allowing warrantless
inspection regimes to follow in their wake.
¶71 Today's decision is a good example of the doctrine's
erosive power. Driving, the court observes, is subject to many
regulations, what with all the rules about staying on the right
side of the road, speed limits, interactions with emergency
vehicles, et cetera. The court could have mined that vein even
more deeply than it did——under any definition, driving truly is
pervasively-regulated. The temptation to reach for the doctrine
under these circumstances is nearly irresistible. And why
3
No. 2015AP304-CR.dk
wouldn't it be? It fairly demands to be heard here. But this
is a powerful and unruly force, and when the United States
Supreme Court set it in motion, it impressed on the doctrine no
internal logic capable of limiting its reach.
¶72 The court thinks to wield this doctrine here with
limited effect——after all, we are simply justifying a
warrantless blood draw. But the court misapprehends how the
doctrine functions and, therefore, its consequences. If we are
of a mind that this doctrine justifies the implied consent law,
we may do so only if we first conclude that regulatory
pervasiveness has removed the subject of its operation from the
reasonable expectation of privacy. See Colonnade Catering, 397
U.S. at 75; Biswell,
406 U.S. at 316. That is to say, because
driving is pervasively regulated, those who travel on
Wisconsin's highways have no reasonable expectation of privacy
as they engage in that activity. And if that is true, it would
sweep away a large body of Fourth Amendment jurisprudence as it
relates to traffic stops, searches of automobiles, searches of
drivers and passengers, et cetera. Wielding this doctrine as
the court does today, if we are serious about its application,
calves off a substantial piece of the Fourth Amendment.
¶73 For these reasons, and the reasons I discussed in my
Brar concurrence, I conclude that the consent implied by Wis.
Stat. § 343.305 cannot justify the blood draw performed on Mr.
Mitchell.
4
No. 2015AP304-CR.dk
*
¶74 But this case is not Brar, and different reasons
justify the blood draw here. The most important distinction
between the two cases is this: Mr. Mitchell was not conscious
when the law enforcement officer determined that a blood draw
was necessary. No Supreme Court decision has yet opined
directly on whether a warrant is necessary to perform a blood
draw under these circumstances; I believe the interplay among
Schmerber v. California, 384 U.S. 757 (1966), Missouri v.
McNeely,
569 U.S. 141 (2013), and Birchfield v. North Dakota,
136 S. Ct. 2160 (2016), leave that question open. Their
combined rationale, however, indicates that no warrant is
necessary to perform a blood draw when an individual has been
arrested for OWI, the suspect is unconscious, and there is a
risk of losing critical evidence through the human body's
natural metabolization of alcohol.
¶75 For more than half a century now the United States
Supreme Court has recognized that warrantless blood draws can be
constitutional. In Schmerber, the Supreme Court recognized that
exigent circumstances can justify a warrantless blood draw from
an individual arrested on OWI charges. See Schmerber, 384 U.S.
at 770-71. It said the human body's natural metabolization of
alcohol could, under the right circumstances, cause an officer
to "reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant,
under the circumstances, threatened 'the destruction of
evidence.'"
Id. at 770 (citation omitted).
5
No. 2015AP304-CR.dk
¶76 More recently, the State of Missouri pressed the
Supreme Court to adopt a rule that the natural metabolization of
alcohol in the bloodstream presents a per se exigency. McNeely,
569 U.S. at 151-52. The Court refused, but confirmed the
continuing vitality of the rule that the proper circumstances
will still justify a warrantless blood draw. "We do not doubt,"
the Court said, "that some circumstances will make obtaining a
warrant impractical such that the dissipation of alcohol from
the bloodstream will support an exigency justifying a properly
conducted warrantless blood test."
Id. at 153. Therefore,
"[w]hether a warrantless blood test of a drunk-driving suspect
is reasonable must be determined case by case based on the
totality of the circumstances."
Id. at 156.
¶77 The constitutionality of a warrantless blood draw
returned to the Supreme Court in the context of the "search
incident to arrest" doctrine in Birchfield. 136 S. Ct. at 2179,
2185. There, the Court said this doctrine justifies a
warrantless breath test when the individual has been arrested
for OWI; however, it does not justify a warrantless blood draw
(at least when the suspect is conscious). See
id. at 2185. In
reaching this conclusion, the Court placed heavy emphasis on the
differing levels of intrusiveness between the two tests.
Id. at
2178. Thus, for example, it said that "[b]ecause breath tests
are significantly less intrusive than blood tests and in most
cases amply serve law enforcement interests, we conclude that a
breath test, but not a blood test, may be administered as a
6
No. 2015AP304-CR.dk
search incident to a lawful arrest for drunk driving." Id. at
2185.
¶78 Availability of the breath test, however, was the
driving motivation for its ruling. In the absence of such an
option, the reasonableness of a warrantless blood test
increases:
We reach a different conclusion with respect to
blood tests. Blood tests are significantly more
intrusive, and their reasonableness must be judged in
light of the availability of the less invasive
alternative of a breath test. Respondents have
offered no satisfactory justification for demanding
the more intrusive alternative without a warrant.
Id. at 2184.
¶79 Combining the reasoning of Schmerber, McNeely, and
Birchfield provides the necessary guidance for Mr. Mitchell's
case. Schmerber established the ground-rule principle that a
warrantless blood draw can be constitutional. See Schmerber,
384 U.S. at 770-71. McNeely refined the Schmerber holding when
it explained that, under the right circumstances, "the
dissipation of alcohol from the bloodstream will support an
exigency justifying a properly conducted warrantless blood
test." See McNeely,
569 U.S. at 153. Birchfield added two
important pieces to the analysis. First, it established that an
individual arrested for OWI may be searched incident to his
arrest for evidence of intoxication without a warrant. See
Birchfield,
136 S. Ct. at 2184. And second, it determined that
the method by which law enforcement conducts the search (by
breath test as opposed to blood test) depends on the
availability of the less-intrusive option. See
id. at 2185.
7
No. 2015AP304-CR.dk
¶80 Here is how the Supreme Court's instructions apply in
this case. Mr. Mitchell, of course, was arrested for OWI, so
Schmerber and McNeely recognize that critical evidence of his
intoxication was continually metabolizing away. They also
explain that although metabolization alone would not support a
warrantless blood draw, when combined with other elements it
may. Birchfield says his privacy interest in the evidence of
intoxication within his body is no longer a factor because the
"search incident to arrest" doctrine is a recognized exception
to the warrant requirement. So the only question remaining is
whether the search should be conducted via a breath test or a
blood test. Birchfield tells us that we must consider the
availability of the less intrusive test in making this decision.
Mr. Mitchell, however, was unconscious, so the breath test was
not an option. A warrantless blood test was reasonable,
therefore, because he had been arrested for OWI, evidence of the
offense was continually dissipating, there was no telling how
long he would be unconscious, his privacy interest in the
evidence of intoxication within his body had been eviscerated by
the arrest, and no less intrusive means were available to obtain
the evanescent evidence.
¶81 I recognize that Birchfield holds a cautionary note
about blood tests performed on unconscious suspects, but it
appears to be in the form of an explanation for why the Court
devoted just two sentences to the subject:
It is true that a blood test, unlike a breath
test, may be administered to a person who is
unconscious (perhaps as a result of a crash) or who is
unable to do what is needed to take a breath test due
8
No. 2015AP304-CR.dk
to profound intoxication or injuries. But we have no
reason to believe that such situations are common in
drunk-driving arrests, and when they arise, the police
may apply for a warrant if need be.
Birchfield, 136 S. Ct. at 2184-85. Nothing in the opinion
indicates the Supreme Court considered how its analytical
structure would apply in the context of an unconscious suspect
arrested for OWI, and it would be too much like reading tea
leaves to give any substantive weight to a statement that simply
gives the Court's reasons for not addressing the question we are
deciding.2
2
The dissent believes Birchfield has already answered this
question, and therefore concludes my "analytical exercise
ultimately fails because it cannot be reconciled with
Birchfield's central holding: 'a breath test, but not a blood
test, may be administered as a search incident to a lawful
arrest for drunk driving.'" Dissent, ¶101 n.6 (quoting
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016))
(emphasis omitted). The Supreme Court stated that central
holding, however, in the context of a suspect who, unlike Mr.
Mitchell, was conscious. This is a distinction that Birchfield
itself advanced, so it's entirely justifiable to explore its
significance, as I have done in this opinion.
But there is an even more important reason the dissent
should be chary of finding such a categorical prohibition in
that precedent: Birchfield is not comfortable in its own skin.
Its central logic is actually self-contradictory, which explains
why both the court and the dissent are able to call on it for
support. If the Supreme Court had endorsed implied-consent laws
as sufficient to authorize a breath or blood test (as our court
says), then it would have held that implied consent justified
the breath test. But it didn't. It said the "search incident
to arrest" exception to the Fourth Amendment's warrant
requirement justified the breath test. On the other hand, if
Birchfield forbids blood draws pursuant to an implied-consent
law, as the dissent claims, then such a law could not justify
the breath test either, inasmuch as the law either provides
constitutionally-sound consent for both, or for neither.
(continued)
9
No. 2015AP304-CR.dk
*
¶82 Apropos of nothing relevant to this case, the lead
opinion says a quartet of the court's members, including the
author of this concurrence and the justice who joins it, "label
refusal of chemical testing a constitutional right [in State v.
Dalton, 2018 WI 85, ¶61, __ Wis. 2d __, __ N.W.2d __]." See
lead op., ¶53 n.13. If the lead opinion means to say that we
understand the people of Wisconsin have a constitutionally-
protected right to be free from warrantless, unreasonable
searches, then it is spot-on. And if the lead opinion further
means to say that we recognize that the people of Wisconsin may
operationalize that constitutionally-protected right by refusing
warrantless, unreasonable searches, then it again hits the
bulls-eye. But none of that happened in Dalton. It happened
when the people of this nation ratified the Bill of Rights. We
have done nothing new here; we only recognize what is already
the law.
¶83 Ultimately, the lead opinion is of two minds on
whether a suspect may refuse a blood test, and it expressed both
of them. On the one hand, it says that, "in a state with civil
So I disagree with the dissent that I cannot reconcile my
analytical exercise to Birchfield's central holding. When the
Supreme Court speaks with two contradictory voices in one
opinion, the best we can do is follow its logic until it starts
contending with itself. Here, that means Birchfield stands for
the proposition that, with respect to conscious drunk-driving
suspects, the "search incident to arrest" doctrine covers breath
tests, but not blood draws. Because Mr. Mitchell was not
conscious, Birchfield does not control the disposition of this
case.
10
No. 2015AP304-CR.dk
penalties for refusal to submit to a blood draw, 'a person
suspected of drunk driving has no constitutional right to refuse
to take a blood-alcohol test.'" Lead op., ¶38 (quoting South
Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983)). But almost
immediately afterwards it also said: "Of course, consent
voluntarily-given before a blood draw may be withdrawn with or
without a statutory reminder." Lead op., ¶40 (citing United
States v. Sanders,
424 F.3d 768, 774 (8th Cir. 2005)). So which
is it? May a suspect refuse a blood test or not?
¶84 Perhaps, however, the lead opinion means to say that
when a blood test is conducted pursuant to consent——real
consent, the kind that people provide, not legislatures——the
consent can be withdrawn, but when conducted pursuant to
legislatively-provided consent, it cannot. That seems to be the
import of the observation that the "right to refuse the blood-
alcohol test . . . is simply a matter of grace bestowed by
the . . . legislature." See lead op., ¶39 (quoting Neville, 459
U.S. at 565). But if that is so, what possible jurisprudential
theory allows a statute to make permanent what the constitution
makes revocable?3
3
The right to refuse a search, and to revoke consent once
given, has been a part of Fourth Amendment jurisprudence for a
very long time. See Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973) (stating that consent may be refused); United States
v. Carter,
985 F.2d 1095, 1097 (D.C. Cir. 1993) (stating that
consent may be withdrawn); United States v. Black,
675 F.2d 129,
138 (7th Cir. 1982) (same); Mason v. Pulliam,
557 F.2d 426, 428
(5th Cir. 1977) (stating that nothing in Schneckloth prevents
consent from being withdrawn).
11
No. 2015AP304-CR.dk
*
¶85 For these reasons, I respectfully concur in our
court's mandate.
¶86 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
12
No. 2015AP304-CR.awb
¶87 ANN WALSH BRADLEY, J. (dissenting). A blood draw is
a particularly intrusive search. It invades the interior of the
human body and implicates interests in human dignity and
privacy. Schmerber v. California, 384 U.S. 757, 769-70 (1966).
To allow a blood draw without a warrant runs counter to these
significant interests, not to mention United States Supreme
Court precedent.
¶88 The police took Gerald Mitchell's blood without a
warrant while he was unconscious. According to the lead
opinion1, this is perfectly fine because Mitchell by implication
"voluntarily consented" to a blood draw and, while he was
unconscious, did not revoke such consent.
1
I use the term "lead" opinion for two reasons. First, I
am concerned that without this cue, the reader may mistakenly
believe that the lead opinion has any precedential value.
Although five justices join in the mandate of the opinion to
affirm the court of appeals (Roggensack, C.J., joined by
Ziegler, J., Gableman, J., Rebecca Grassl Bradley, J., and
Kelly, J.,), it represents the reasoning of only three justices
(Roggensack, C.J., joined by Ziegler, J., and Gableman, J.).
Justices Rebecca Grassl Bradley and Kelly joined in the mandate,
but they would rely on contrary reasoning. Other paragraphs of
the lead opinion that Justice Kelly indicates that he joins
provide only uncontested factual and legal background that do
not include the lead opinion's reasoning. See Justice Kelly's
concurrence, ¶67 n.1.
Although set forth in two separate opinions, four justices
disagree with the reasoning of the lead opinion. Importantly,
contrary to the lead opinion, four justices determine that the
implied consent laws cannot justify the warrantless blood draw
performed in this case (Abrahamson, J., Ann Walsh Bradley, J.,
Rebecca Grassl Bradley, J., and Kelly, J.).
The lead opinion fails to alert readers as to the nonprecedential status of its essential reasoning. Lest the rule
of law be unclear to courts and litigants: BY THEMSELVES, THE
IMPLIED CONSENT LAWS CANNOT JUSTIFY A WARRANTLESS BLOOD DRAW.
1
No. 2015AP304-CR.awb
¶89 Contrary to the lead opinion, I determine that
"implied consent" is not the same as "actual consent" for
purposes of a Fourth Amendment search. By relying on the
implied consent laws, the lead opinion attempts to create a
statutory per se exception to the constitutionally mandated
warrant requirement. Thus, it embraces a categorical exception
over the constitutionally required consideration of the totality
of the circumstances. Consent provided solely by way of an
implied consent statute is constitutionally untenable.2
¶90 Accordingly, I respectfully dissent.
I
¶91 Mitchell was arrested for operating while intoxicated.
En route to a nearby hospital, he lost consciousness. Despite
Mitchell's incapacitation, a police officer read him the
Informing the Accused form. Mitchell provided no response
because he was unconscious. The officer then directed hospital
staff to draw a sample of Mitchell's blood, and they did so.
Mitchell remained unconscious as his skin was pierced and his
blood taken.
¶92 Seeking to exclude the evidence obtained as a result
of the blood draw, Mitchell filed a motion to suppress. He
premised his motion on the contention that the warrantless
2
I observe that the concurrence and this dissent are in
accord on this point. The concurrence "do[es] not believe that
the state can waive the people's constitutional protections
against the state." Concurrence, ¶67. Accordingly, it
concludes that "the consent implied by § 343.305 cannot justify
the blood draw performed on Mr. Mitchell." Id., ¶73.
2
No. 2015AP304-CR.awb
taking of his blood while he was unconscious violated his Fourth
Amendment rights.
¶93 The lead opinion rejects Mitchell's argument,
concluding that the consent exception to the Fourth Amendment's
warrant requirement applies. Lead op., ¶3. According to the
lead opinion, Mitchell "voluntarily consented to a blood draw by
his conduct of driving on Wisconsin's roads and drinking to a
point evidencing probable cause of intoxication." Id. Further,
in the lead opinion's view, Mitchell "forfeited all opportunity,
including the statutory opportunity under Wis. Stat.
§ 343.305(4), to withdraw his consent previously given . . . ."
Id.
II
¶94 The Fourth Amendment to the United States Constitution
and Article I, Section 11 of the Wisconsin Constitution protect
against unreasonable searches and seizures. State v. Eason,
2001 WI 98, ¶16,
245 Wis. 2d 206,
629 N.W.2d 625. A warrantless
search is presumptively unreasonable unless an exception to the
warrant requirement applies. State v. Tullberg,
2014 WI 134,
¶30,
359 Wis. 2d 421,
857 N.W.2d 120.
¶95 One such exception to the warrant requirement is a
search conducted pursuant to consent. State v. Artic, 2010 WI
83, ¶29,
327 Wis. 2d 392,
786 N.W.2d 430. The lead opinion
correctly states that relevant words, gestures or conduct may
support a finding of consent. Lead op., ¶20 (citing Artic, 327
3
No. 2015AP304-CR.awb
Wis. 2d 392, ¶30).3 However, it errs by departing from
Mitchell's "words, gestures or conduct" to determine that he
impliedly consented for the state to draw his blood.
¶96 The lead opinion's conclusion is based on Wisconsin's
implied consent laws, one subsection of which provides that any
person operating a motor vehicle in 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
in certain circumstances. Wis. Stat. § 343.305(2).
¶97 Another subsection specifically addresses the
situation where a driver is unconscious. Wisconsin Stat.
§ 343.305(3)(b) provides that "[a] person who is unconscious or
otherwise not capable of withdrawing consent is presumed not to
have withdrawn consent under this subsection." It further
states that a law enforcement officer may administer a breath,
blood, or urine test if probable cause exists that the driver
has committed any of a list of offenses. Id.
3
The lead also cites State v. Phillips, 218 Wis. 2d 180,
197,
577 N.W.2d 794 (1998), for the proposition that consent to
search need not be given verbally. Lead op., ¶21. In Phillips,
when asked by law enforcement whether they could search the
defendant's bedroom, "the defendant did not respond verbally,
but he opened the door to and walked into his bedroom, retrieved
a small baggie of marijuana, handed the baggie to the agents,
and pointed out a number of drug paraphernalia items."
218
Wis. 2d at 197. The court concluded that "[t]he defendant's
conduct provides a sufficient basis on which to find that the
defendant consented to the search of his bedroom."
Id. The
affirmative assistance provided by the defendant in response to
a request to search in Phillips is a far cry from the complete
lack of response from the defendant here.
4
No. 2015AP304-CR.awb
¶98 In determining whether the warrantless taking of a
blood draw from an unconscious person pursuant to Wis. Stat.
§ 343.305(3)(b) violates the Fourth Amendment, I begin my
analysis with Birchfield v. North Dakota,
579 U.S. __,
136 S.
Ct. 2160 (2016). In Birchfield, the United States Supreme Court
determined that "a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk
driving."
Id. at 2185.
¶99 Birchfield emphasized the invasive nature of a blood
test, which is significant for Fourth Amendment purposes. See
id. at 2184. In comparison to a breath test, a blood test is
"significantly more intrusive[.]"
Id. As an intrusion "beyond
the body's surface," a blood test implicates paramount
"interests in human dignity and privacy[.]"
Id. at 2183 (citing
Schmerber,
384 U.S. at 769-70). Indeed, a blood test can
provide a lot more information than just a person's blood
alcohol content.4
¶100 The Birchfield court further addressed the precise
circumstances that have arisen in this case:
It is true that a blood test, unlike a breath test,
may be administered to a person who is unconscious
(perhaps as a result of a crash) or who is unable to
4
"[A] blood test, unlike a breath test, places in the hands
of law enforcement authorities a sample that can be preserved
and from which it is possible to extract information beyond a
simple BAC reading. Even if the law enforcement agency is
precluded from testing the blood for any purpose other than to
measure BAC, the potential remains and may result in anxiety for
the person tested." Birchfield v. North Dakota, 579 U.S. __,
136 S. Ct. 2160, 2178 (2016).
5
No. 2015AP304-CR.awb
do what is needed to take a breath test due to
profound intoxication or injuries. But we have no
reason to believe that such situations are common in
drunk-driving arrests, and when they arise, the police
may apply for a warrant if need be.
136 S. Ct. at 2184-85 (emphasis added).
¶101 This language compels a single conclusion: law
enforcement needed a warrant here. First, the State concedes
that there were no exigent circumstances that would justify a
departure from the warrant requirement.5 Second, the ultimate
holding in Birchfield was that a blood test cannot be
administered as a search incident to arrest for drunk driving.
Id. at 2185. The lead opinion's interpretation of the implied
consent statutes attempts to accomplish exactly what the
Birchfield court said violates the Fourth Amendment——a blood
test as a search incident to the arrest of an unconscious person
for drunk driving.6
5
See State v. Tullberg, 2014 WI 134, ¶30,
359 Wis. 2d 421,
857 N.W.2d 120.
6
The concurrence focuses on language in Birchfield stating
a blood test's "reasonableness must be judged in light of the
availability of the less intrusive alternative of a breath
test." Birchfield, 136 S. Ct. at 2184; see concurrence, ¶¶77-
79. It creatively interprets this language to indicate that,
because a breath test was unavailable due to Mitchell's
unconsciousness, a blood test was constitutionally reasonable.
Id., ¶80. The concurrence's analytical exercise ultimately
fails because it cannot be reconciled with Birchfield's central
holding: "a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk
driving." Birchfield,
136 S. Ct. at 2185 (emphasis added).
(continued)
6
No. 2015AP304-CR.awb
¶102 Unlike the lead opinion, I would follow, rather than
attempt to overrule, the court of appeals in State v. Padley,
2014 WI App 65,
354 Wis. 2d 545,
849 N.W.2d 867. The Padley
court emphasized that, when analyzing whether there was a
consensual search, the determining factor was whether the driver
gave actual consent to the blood draw:
[T]he implied consent law is explicitly designed to
allow the driver, and not the police officer, to make
the choice as to whether the driver will give or
decline to give actual consent to a blood draw when
put to the choice between consent or automatic
sanctions. Framed in the terms of "implied consent,"
choosing the "yes" option affirms the driver's implied
consent and constitutes actual consent for the blood
draw. Choosing the "no" option acts to withdraw the
driver's implied consent and establishes that the
driver does not give actual consent.
354 Wis. 2d 545, ¶39. As Justice Abrahamson has explained,
"[t]he Padley court concluded that a driver's actual consent
occurs after the driver has heard the Informing the Accused
Form, weighed his or her options (including the refusal
penalties), and decided whether to give or decline actual
consent." State v. Brar,
2017 WI 73, ¶116,
376 Wis. 2d 685,
898
N.W.2d 499 (Abrahamson, J., dissenting).
Federal and state courts around the country have cited the
"but not a blood test" language a multitude of times. See,
e.g., Robertson v. Pichon, 849 F.3d 1173, 1184 n.7 (9th Cir.
2017; Espinoza v. Shiomoto,
215 Cal. Rptr. 3d 807, 829 (Ct. App.
2017); State v. Ryce,
396 P.3d 711, 717 (Kan. 2017); State v.
Reynolds,
504 S.W.3d 283, 307 (Tenn. 2016). The concurrence is
unable to cite to any court that eschews the clear language of
Birchfield's central holding in favor of the unique
interpretation it now embraces.
7
No. 2015AP304-CR.awb
¶103 That implied consent and actual consent are separate
and distinct concepts is confirmed by an analysis of recent
United States Supreme Court precedent in addition to Birchfield.7
In Missouri v. McNeely, the Supreme Court determined that
"[w]hether a warrantless blood test of a drunk-driving suspect
is reasonable must be determined case by case based on the
totality of the circumstances." 569 U.S. 141, 156 (2013). A
case by case determination is the antithesis of a categorical
exception. Although McNeely was an exigent circumstances case,
the court's emphasis on the totality of the circumstances
suggests broad application of the case by case determinations it
requires. Brar,
376 Wis. 2d 685, ¶122 (Abrahamson, J.,
dissenting).
¶104 Indeed, the Supreme Court implied such a broad
application of McNeely in Aviles v. Texas, 571 U.S. 1119 (2014).
In Aviles, the Court vacated a Texas judgment upholding a
warrantless blood draw based not on actual consent but on
implied consent derived through the Texas implied consent law.
571 U.S. 1119 (2014). The Court further remanded the Aviles
case to the Texas court of appeals for further consideration in
light of McNeely. Id.
¶105 "Aviles suggests that McNeely should be read broadly
to apply to all warrantless blood draws and that the Texas
implied consent statute was not a per se exception to the Fourth
7
For further in-depth analysis of this assertion, see State
v. Brar, 2017 WI 73, ¶¶119-126,
376 Wis. 2d 685,
898 N.W.2d 499
(Abrahamson, J., dissenting).
8
No. 2015AP304-CR.awb
Amendment justifying warrantless blood draws." Brar, 376
Wis. 2d 685, ¶123 (Abrahamson, J., dissenting). On remand the
Texas court of appeals concluded that the Texas implied consent
statute "flies in the face of McNeely's repeated mandate that
courts must consider the totality of the circumstances of each
case." Aviles v. State,
443 S.W.3d 291, 294 (Tex. Ct. App.
2014).
¶106 The upshot of these United States Supreme Court cases
is that reliance on an implied consent statute to provide actual
consent to a Fourth Amendment search violates McNeely's
requirement that each blood draw in a drunk driving case be
analyzed on a case by case basis. The implied consent statute
attempts to create a per se exception to the warrant
requirement. Of course, categorical consent is by definition
not individualized.
¶107 The lead opinion employs the simple act of driving an
automobile as justification for a search. The untenability of
the lead opinion's position is aptly illustrated by Justice
Kelly's concurrence in Brar, 376 Wis. 2d 685, ¶¶59-66 (Kelly,
J., concurring). As Justice Kelly explains, a court's normal
constitutional inquiry into whether consent is given involves an
examination of the totality of the circumstances and a
determination that the consent was voluntary and not mere
acquiescence to authority. Id., ¶¶59-62. On the other hand,
"[f]or 'consent' implied by law, we ask whether the driver drove
his car." Id., ¶64.
9
No. 2015AP304-CR.awb
¶108 Further, the lead opinion errs by relying not on a
constitutionally well-recognized exception to the warrant
requirement, but instead on a Wisconsin statute, to curtail
constitutional protections. By seeking to create a statutory,
per se consent exception to the warrant requirement, the lead
opinion further steps into a minefield. See lead op., ¶¶53-55
(asserting that Mitchell "forfeited the statutory opportunity to
withdraw the consent to search that he had given.").
¶109 A blood draw is plainly a "search" for Fourth
Amendment purposes. Birchfield, 136 S. Ct. at 2185.
Accordingly, one has a constitutional right, not merely a
statutory right, to refuse such a search absent a warrant or an
applicable exception.8 See State v. Dalton,
2018 WI 85, ¶61, __
Wis. 2d __, __ N.W.2d __. Under the lead opinion's analysis,
however, the opportunity to refuse an unconstitutional search is
merely a matter of legislative grace. If the ability to
withdraw consent is merely statutory, could the legislature
remove the ability to withdraw consent entirely? For the Fourth
Amendment to have any meaning, such a result cannot stand.
¶110 I therefore conclude that implied consent is
insufficient for purposes of a Fourth Amendment search. As the
8
The lead opinion's reliance on South Dakota v. Neville,
459 U.S. 553, 560 n.10 (1983), is misplaced. See lead op.,
¶¶38-39. Neville was decided pre-McNeely and pre-Birchfield.
Both McNeely and Birchfield have had a significant effect on
drunk driving law, and highlight the constitutional nature of a
blood draw. Both cases analyze breath and blood tests as Fourth
Amendment searches and appear to supersede the statement from
the Fifth Amendment Neville case on which the lead opinion
relies.
10
No. 2015AP304-CR.awb
court of appeals explained in Padley, the implied consent law
does not authorize searches. Rather, it authorizes law
enforcement to require a driver to make a choice: provide
actual consent and potentially give the state evidence that the
driver committed a crime, or withdraw implied consent and
thereby suffer the civil consequences of withdrawing consent.
Padley, 354 Wis. 2d 545, ¶39.
¶111 A person who is unconscious cannot make this choice.
Because he was unconscious, Mitchell did not react to the
Informing the Accused Form when law enforcement presented him
with his options. He exhibited no "words, gestures, or conduct"
that would indicate his actual consent to a blood draw. See
Artic, 327 Wis. 2d 392, ¶30.
¶112 Because consent provided solely by way of an implied
consent statute is not constitutionally sufficient, I determine
that the results of Mitchell's blood draw must be suppressed.
Accordingly, I respectfully dissent.
¶113 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
11
No. 2015AP304-CR.awb
1
