from an order of the circuit court for Fond du Lac County:
Cir. Ct. No. 2013CF659 GARY R. SHARPE, Judge.
Reilly, P.J., Gundrum and Hagedorn, JJ.
The State appeals from an order of the circuit court granting
Adam M. Blackman's motion to suppress blood test evidence
obtained under Wisconsin's implied consent law. Wisconsin
Stat. § 343.305(3)(ar)2. (2013-14) authorizes law
enforcement to request a blood, breath, or urine sample from
a driver involved in an accident that causes death or great
bodily harm if the officer has reason to believe the driver
violated a traffic law. Blackman was involved in an accident
when he turned left in front of an oncoming bicyclist and was
asked for a sample of his blood per the implied consent law.
Blackman was correctly informed that if he withdrew his
consent, his license would be statutorily revoked. Blackman
consented and provided a sample which revealed a BAC of .10
Blackman moved to suppress his blood test. The circuit court
granted the motion, finding that Blackman's consent to
the blood sample was coerced. We reverse. Blackman was not
coerced to provide a sample as Blackman was never compelled
to give a blood sample, rather he was given a choice: submit
a sample (actual consent) or refuse to provide a sample
(withdraw his consent under the implied consent law) and
suffer the consequences for doing so. As the choice was
Blackman's alone, there was no coercion.
Wisconsin's implied consent law is a remedial statute
that is to be liberally construed to facilitate the taking of
tests for intoxication so as to remove drunk drivers from our
highways. State v. Spring, 204 Wis.2d 343, 352-53,
555 N.W.2d 384 (Ct. App. 1996). Under Wis.Stat. §
343.305(2), any 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, "when requested to do so by a law
enforcement officer under sub. (3)(a) or (am) or when
required to do so under sub. (3)(ar) or (b)."
In 2009, the legislature amended the implied consent law by
creating Wis.Stat. § 343.305(3)(ar)2., which provides
for the taking of a blood, breath, or urine sample from a
driver involved in an accident that causes death or great
bodily harm to a person when an officer has evidence that the
driver violated a traffic law. Notably, the amendment created
a statutory fact pattern which does not require evidence of
impairment from alcohol or a controlled
substance. See 2009 Wis. Act 163; sec.
343.305(3)(ar)2. If a driver refuses to take a test, his or
her license is statutorily revoked. Sec. 343.305(9)(a). The
individual has the right to "request a hearing on the
revocation within 10 days." Sec. 343.305(9)(a)4.
When the legislature created Wis.Stat. §
343.305(3)(ar)2., it failed to amend the language of the
refusal hearing statute. The issues at a refusal hearing
relevant to this appeal are statutorily limited to: 1)
whether the officer had probable cause to believe the driver
was under the influence of alcohol/controlled substance and
2) whether the driver was lawfully placed under arrest for an
OWI-related violation. See § 343.305(9)(a)5.a. A
driver charged under § 343.305(3)(ar)2. should win a
refusal hearing under the current statute as alcohol and an
arrest for an OWI-related violation are not elements of the
charge. See State v. Padley, 2014 WI.App. 65,
¶66 n.12, 354 Wis.2d 545, 849 N.W.2d 867');">849 N.W.2d 867.
On June 22, 2013, Blackman made a left-hand turn in front of
an oncoming bicycle, causing great bodily harm to the
bicyclist. Fond du Lac County Sheriff's Deputy John Abler
investigated the accident and concluded that Blackman failed
to yield to the bicycle. Abler did not suspect and did not
have probable cause to believe that Blackman was under the
influence of an intoxicant at the time of the accident. Given
the serious injuries to the bicyclist, he requested a blood
sample from Blackman pursuant to Wis.Stat. §
Abler read Blackman the Informing the Accused form which
includes the warning that "[i]f you refuse to take any
test that this agency requests, your operating privilege will
be revoked and you will be subject to other penalties."
Blackman gave a sample of his blood which revealed a BAC of
.10 percent. Blackman was charged with reckless driving
causing great bodily harm, injury by intoxicated use of a
vehicle, injury by use of a vehicle with a prohibited blood
alcohol concentration, operating a motor vehicle while under
the influence of an intoxicant (OWI), and operating a motor
vehicle with a prohibited blood alcohol concentration.
Blackman moved to suppress the results of the blood test,
arguing that his consent to the blood test was coerced as the
statutory scheme for refusal hearings under Wis.Stat. §
343.305(9)(a)5. does not support the threatened revocation
and is statutorily unenforceable.
The circuit court granted Blackman's motion on the theory
that Blackman's consent to the blood draw was coerced.
The court relied on our decision in Padley, 354
Wis.2d 545, reasoning that a revocation for a refusal under
Wis.Stat. § 343.305(3)(ar)2. would be "statutorily
unenforceable" and the circuit court would be required
to reverse it. In Padley, we identified the
"apparent disconnect between the terms of Wis.Stat.
§ 343.305(3)(ar)2. and the statutes governing refusal
hearings." Padley, 354 Wis.2d 545, ¶66
n.12. According to Blackman, this statutory disconnect
operated to mislead him and thereby coerced him into giving
actual consent. The circuit court recognized that
"[c]learly a motorist like Mr. Blackman would have had
his revocation reversed had he refused a test and been
revoked because there was no probable cause to believe
impairment existed under [§] 343.305(9)(a)5.a. at the
time of driving."
The facts in Padley mirror the facts in this case.
Both cases involved (1) a motor vehicle accident that caused
great bodily harm to a person, (2) reason to believe that the
individual had violated a state or local traffic law, (3) no
outward signs of impairment, (4) no probable cause to believe
that the defendant had alcohol or a controlled substance in
his or her system, (5) the defendant being read the Informing
the Accused form requiring the defendant to choose between
giving actual consent to a blood draw or being sanctioned
with license revocation, (6) the defendant consenting to the
blood draw, and (7) the sample revealing either an illegal
substance or a prohibited BAC. Padley, 354 Wis.2d
545, ¶1. Padley, like Blackman, also moved to suppress
the results of the blood test, arguing primarily that
Wis.Stat. § 343.305(3)(ar)2. was unconstitutional.
Padley, 354 Wis.2d 545, ¶2.
The Padley court upheld the constitutionality of
Wis.Stat. § 343.305(3)(ar)2., and we agree with and are
bound by that determination. As the Padley court
explained, a driver has two choices under the implied consent
law. The first is to give actual consent to the blood draw
which is in accord with the "implied consent" the
driver gave as a condition to operating a motor vehicle upon
the public highways of Wisconsin. See Padley, 354
Wis.2d 545, ¶26. The other choice is to withdraw implied
consent (refuse) and suffer the penalty specified in the
implied consent law. Id., ¶27. A person
choosing to give consent under the first option has given
actual, voluntary consent. Id. A driver who refuses
to provide a sample has made a choice to withdraw
his or her previously given consent. Id., ¶38;
see also State v. Neitzel, 95 Wis.2d 191, 203, 289
N.W.2d 828 (1980) ("The entire tenor of the implied
consent law is … that consent has already been given
and cannot be withdrawn without the imposition of the
legislatively imposed sanction of mandatory
suspension."). "This is plainly a choice designed
to induce, but it is a choice nonetheless. And, as we have
explained, offering this choice, rather than requiring a
blood draw, makes all the difference." Padley,
354 Wis.2d 545, ¶70.
We disagree with Blackman's premise that his consent was
coerced on the grounds that he would have won at a refusal
hearing. The fundamental fact is that under the implied
consent law, Blackman, by driving on the highway, impliedly
consented to submitting a sample of his blood under the facts
presented. "Impliedly consented, " however, does
not mean compelled. The implied consent law does not compel a
blood sample as a driver has the right to refuse to give a
sample. A driver may submit a ...