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State v. Brar

Supreme Court of Wisconsin

July 6, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Navdeep S. Brar, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: April 12, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d 564, 884 N.W.2d 535 (2016 - Unpublished)

         Circuit Dane (L.C. No. 2014CT776) John W. Markson Judge

          For the defendant-appellant-petitioner, there were briefs by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood & Associates, Madison, and an oral argument by Sarah M. Schmeiser.

          For the plaintiff-respondent, there was a brief by David H. Perlman, assistant attorney general, and Brad D. Schimel, attorney general, and an oral argument by David H. Perlman.

          PATIENCE DRAKE ROGGENSACK, C.J.

         ¶1 We review an unpublished decision of the court of appeals[1] affirming the conviction of Navdeep Brar (Brar) for operating while intoxicated, third offense in violation of Wis.Stat. § 346.63(1) (a) (2014-15) [2] and an order of the circuit court denying Brar's motion to suppress the results of a blood test.[3]

         ¶2 Brar moved to suppress the results of a blood test on the grounds that it was an unconstitutional search. Specifically, he argued that he did not consent to having his blood drawn, and therefore, the officer was required to obtain a warrant. The circuit court denied Brar's motion and found that Brar had consented. On appeal, Brar argues that, even if he had consented, his consent was not given voluntarily.

         ¶3 We conclude that the circuit court's finding that Brar consented to the blood draw was not clearly erroneous. Additionally, we conclude that Brar's consent was voluntary. Accordingly, we affirm the decision of the court of appeals.

         I. BACKGROUND

         ¶4 A City of Middleton police officer stopped Brar for driving over the speed limit. During the stop, the officer conducted field sobriety tests, which Brar failed. Brar then submitted to a preliminary breath test and blew a .19. As a result, Brar was arrested.[4]

         ¶5 After arresting Brar, the officer transported him to the police department, where the officer read Brar the "informing the accused form." While being read the form, Brar repeatedly interrupted the officer with questions or comments related to the form. As part of "informing the accused" process, the officer asked Brar to submit to a chemical evidentiary test. The precise words Brar said in response are disputed. However, the officer thought Brar provided an affirmative response, and therefore believed that Brar agreed to submit to a blood draw.

         ¶6 After agreeing to submit to an evidentiary test, Brar asked several questions. One of these questions was what kind of test would be conducted, and the officer responded he would conduct a blood draw. Brar then asked the officer if he needed a warrant to conduct a blood draw. In response to this question, the officer shook his head as if to respond no, indicating that he did not need a warrant.

         ¶7 Brar was taken to a hospital where his blood was drawn. The test results showed that Brar's blood alcohol content was .186, well above the legal limit to operate a vehicle. Brar was charged with operating while intoxicated, third offense in violation of Wis.Stat. § 346.63(1) (a) and operating a motor vehicle with a prohibited alcohol concentration in violation of § 346.63(1) (b) .

         ¶8 Brar moved to suppress the results of the blood test. The circuit court held a hearing to determine whether Brar had consented to the blood draw.

         ¶9 At the hearing, the officer testified that Brar responded "of course" in response to the question "Will you submit to an evidentiary chemical test of your blood?" According to the officer, Brar then gave "a statement similar to he didn't want to have his license revocated." As a result, the officer believed that Brar had consented to the blood draw. Moreover, the officer testified that Brar did not resist or hesitate to give blood once he was transported to the hospital.

         ¶10 The circuit court found that Brar had consented to a blood draw. The circuit court relied on the testimony of the officer, which the court found credible. And, the circuit court stated that nothing in the audiovisual recording was inconsistent with the officer's testimony; specifically, that the circuit court heard Brar say "of course, " which corroborated the officer's testimony. For these reasons, the circuit court denied Brar's motion to suppress.[5] After the circuit court denied the motion, Brar entered a no contest plea to operating while intoxicated, third offense in violation of Wis.Stat. § 346.63(1) (a) .

         ¶11 The court of appeals affirmed the circuit court's denial of Brar's motion to suppress. First, the court determined that the circuit court's finding that Brar consented to have his blood drawn was not clearly erroneous. Next, the court concluded that Brar's consent was voluntary. The court reasoned that the officer was correct in shaking his head no to indicate he did not need a warrant because Brar had already consented.

         ¶12 This court granted Brar's petition for review, and we affirm the court of appeals.

         II. DISCUSSION

         A. Standard of Review

         ¶13 "Whether a defendant has consented to a search is initially a question of historic fact." State v. Johnson, 2007 WI 32, ¶56, 299 Wis.2d 675, 729 N.W.2d 182 (Roggensack, J., dissenting) (citation omitted). "We will uphold a circuit court's finding of historic fact unless it is clearly erroneous." Id. (citing State v. Sykes, 2005 WI 48, ¶12, 279 Wis.2d 742, 695 N.W.2d 277). Next, we "independently apply the constitutional principles to the facts as found to determine whether the standard of voluntariness has been met." State v. Phillips, 218 Wis.2d 180, 195, 577 N.W.2d 794 (1998).

         ¶14 In the present case, we apply this two-step test to determine if Brar voluntarily consented to a blood draw. B. Fourth Amendment, General Principles

         ¶15 "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect ' [[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'"[6] State v. Tullberg, 2014 WI 134, ¶29, 359 Wis.2d 421, 857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶24, 327 Wis.2d 302, 786 N.W.2d 463');">786 N.W.2d 463) . "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)).

         ¶16 "A warrantless search is presumptively unreasonable." Tullberg, 359 Wis.2d 421, ¶30 (quoting State v. Henderson, 2001 WI 97, ¶19, 245 Wis.2d 345, 629 N.W.2d 613) . "But there are certain 'specifically established and well-delineated' exceptions to the Fourth Amendment's warrant requirement."[7]State v. Williams, 2002 WI 94, ¶18, 255 Wis.2d 1, 646 N.W.2d 834 (citing Katz v. United States, 389 U.S. 347, 357 (1967)). "One well-established exception to the warrant requirement of the Fourth Amendment is a search conducted pursuant to consent." Phillips, 218 Wis.2d at 196. And, "it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." Jimeno, 500 U.S. at 250-51 (citing Schneckloth v. Bustamonte, 412 U.S. 281, 219 (1973).

         ¶17 It is well-established that consent "may be in the form of words, gesture, or conduct." Phillips, 218 Wis.2d 180, ¶24; see also State v. Tomlinson, 2002 WI 91, ¶37, 254 Wis.2d 502, 648 N.W.2d 367; United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003) ("Consent may be inferred from actions as well as words."). Through conduct, an individual may impliedly consent to be searched. United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006), as amended on reh'g (Oct. 31, 2006) ("Voluntary consent may be. . . implied."); United States v. Wilson, 914 F.Supp.2d 550, 558 (S.D.N.Y. 2012) ("Consent may be granted either explicitly or implicitly." (citation omitted)); see also Morgan v. United States, 323 F.3d 776, 781 (9th Cir. 2003) (reasoning, "a warrantless search of a person seeking to enter a military base may be deemed reasonable based on the implied consent of the person searched"); State v. Hanson, 34 P.3d 1, 5 (Haw. 2001), as amended (Nov. 7, 2001) ("[E]ven in the absence of an express indication, implied consent to an airport security search may be imputed from posted notices.").

         ¶18 Consistent with these principles, "consent to a search need not be express but may be fairly inferred from context." Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016). Therefore, "a search may be lawful even if the person giving consent does not recite the talismanic phrase: 'You have my permission to search.'" United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981).

         ¶19 Prior cases from the court of appeals could be read as casting doubt on the maxim that a person may consent through conduct or by implication. For example, the court of appeals in Padley reasoned that consent that arises under Wisconsin's implied consent law is different from consent that is sufficient in and of itself under the Fourth Amendment. State v. Padley, 2014 WI.App. 65, ¶25, 354 Wis.2d 545, 849 N.W.2d 867. Specifically, the court reasoned that "actual consent to a blood draw is not 'implied consent, ' but rather a possible result of requiring the driver to choose whether to consent under the implied consent law." Id. This reasoning implies a distinction between implied consent and consent that is sufficient under the Fourth Amendment. Such a distinction is incorrect as a matter of law.[8]

         ¶20 Stated more fully, and contrary to the court of appeals' reasoning in Padley, consent can manifest itself in a number of ways, including through conduct. Cf. Florida v. Jardines, 133 S.Ct. 1409, 1415-16 (2013); Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978) . The use of the word "implied" in the idiom "implied consent" is merely descriptive of the way in which an individual gives consent. It is no less sufficient consent than consent given by other means.

         ¶21 An individual's consent given by virtue of driving on Wisconsin's roads, often referred to as implied consent, is one incarnation of consent by conduct. Wis.Stat. § 343.305(2) (An individual 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.") . "By reason of the implied consent law, a driver . . . consents to submit to the prescribed chemical tests."[9] State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828');">289 N.W.2d 828 (1980); see also State v. Reitter, 227 Wis.2d 213, 225, 595 N.W.2d 646');">595 N.W.2d 646 (1999) ("The implied consent law provides that Wisconsin drivers are deemed to have given implied consent to chemical testing as a condition of receiving the operating privilege."). And, as a plurality of the Supreme Court explained in Missouri v. McNeely, 133 S.Ct. 1552, 1566 (2013), "all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." The "consent" to which this court in Neitzel and the Supreme Court in McNeely refer is consent sufficient under the Fourth Amendment-not some amorphous, lesser form of consent. See, e.g., People v. Hyde, 93 P.3d 962');">393 P.3d 962, 968 (Colo. 2017) ("Hyde's statutory consent also satisfied the consent exception to the Fourth Amendment warrant requirement. This conclusion flows from recent Supreme Court precedent.").

         ¶22 Furthermore, the Supreme Court's assertion that an individual's consent to a search under the Fourth Amendment "may be fairly inferred from context" was given with specific reference to an implied consent law. Birchf ield, 136 S.Ct. at 2185 (reasoning, "consent to a search need not be express but may be fairly inferred from context. . . . 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."). Of course, the "context" to which the Supreme Court was referring was an individual driving on the roads of a state that had enacted an implied consent law.

         ¶23 Therefore, lest there be any doubt, consent by conduct or implication is constitutionally sufficient consent under the Fourth Amendment.[10] We reject the notion that implied consent is a lesser form of consent. Implied consent is not a second-tier form of consent; it is well-established that consent under the Fourth Amendment can be implied through an individual's conduct.[11]

         ¶24 When we are asked to affirm a finding that consent was given, whether express or implied, we also must determine whether the consent was voluntary. See generally United States v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976) ("Once the existence of a consent by conduct is determined, its voluntariness must be examined."). Only voluntarily given consent will pass constitutional muster. Schneckloth, 412 U.S. at 222. "Consent is not voluntary if the state proves 'no more than acquiescence to a claim of lawful authority, '" State v. Artie, 2010 WI 83, ¶32, 327 Wis.2d 392, 786 N.W.2d 430 (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)), or if the consent was the product of duress or coercion by law enforcement. Schneckloth, 412 U.S. at 227.

         ¶25 There is no single fact, the absence or presence of which, determines whether consent was voluntarily given. Id. at 226. Rather, in order to determine whether consent was voluntarily given, the totality of the circumstances of each individual case must be examined. Id. at 233. In examining the totality of the circumstances, "we look at the circumstances surrounding the consent and the characteristics of the defendant."[12] Artie, 327 Wis.2d 392, ¶33 (citing Phillips, 218 Wis.2d at 197-98). Even in implied consent cases, we consider the totality of the circumstances at the time of the blood draw to determine if an individual's previously-given consent continues to be voluntary at that time.

         ¶26 The State has the burden of proving that the consent was freely and voluntarily given. Schneckloth, 412 U.S. at 222. However, the State need not demonstrate that consent was given knowingly or intelligently. See id. at 241 ("Nothing, either in the 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."); see also id. at 235 ("Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection.") .

         ¶27 Contrary to Supreme Court precedent, decisions from the court of appeals have required the State to prove consent was given knowingly and intelligently. See, e.g., Padley, 354 Wis.2d 545, ¶64 (reasoning there must be "clear and positive evidence the search was the result of a free, intelligent, unequivocal and specific consent" (internal quotations omitted)); State v. Giebel, 2006 WI.App. 239, ¶12, 297 Wis.2d 446, 724 N.W.2d 402; see also Neitzel, 95 Wis.2d at 201. The Supreme Court in Schneckloth rejected precisely this requirement. As we interpret our constitution consistent with the Fourth Amendment, we withdraw any language from these cases that requires that consent to a search be given knowingly or intelligently.

         C. Application to Brar

         ¶28 In the present case, we must determine whether Brar consented, and if he did, whether his consent was voluntary.

         ¶29 First, Brar consented under Wisconsin's implied consent law. He availed himself of the roads of Wisconsin, and as a result, he consented through his conduct to a blood draw. Wisconsin Stat. § 343.305(2) (an individual 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.") . Any analysis of a driver's consent under Wisconsin's implied consent law must begin with this presumption.

         ¶30 Aside from Brar's consent under the implied consent law, the circuit court found that Brar consented by his responses to the officer's questions.[13] The circuit court discussed an audiovisual recording of the officer's interaction with Brar as well as the officer's testimony. The evidence supports the circuit court's finding, and we conclude it was not clearly erroneous.

         ¶31 The officer testified that Brar responded "of course" in response to the question "Will you submit to an evidentiary chemical test of your blood?" According to the officer, Brar then gave "a statement similar to he didn't want to have his license revocated." As a result, the officer believed Brar affirmatively agreed to the blood draw.

         ¶32 The circuit court found the officer's "testimony to be credible, that Mr. Brar said, when asked more than once, the officer said I need to know, I need you to answer yes or no, will you submit to the test? Mr. Brar said, of course, he would submit. And the officer said that Mr. Brar said, because he didn't want to have his license revoked, or words to that effect." A circuit court's finding of fact that is based on the credibility of a witness is a persuasive factor in assessing whether the finding is clearly erroneous. See Wis.Stat. § 805.17(2) ("Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.") . And, we have no reason to question the veracity of the officer's testimony in the present case.

         ¶33 Moreover, the circuit court found, and we agree, that the audiovisual recording of the interaction corroborates the testimony of the officer. Nothing in the recording rebuts the officer's testimony as to Brar's statements. Indeed, the officer's testimony that Brar said "of course" and then something to the effect of "I do not want my license revoked" is supported by the recording.

         ¶34 Accordingly, Brar first consented through his conduct; specifically, he consented by driving on the roads of Wisconsin. The circuit court found he later re-affirmed his consent when he was given the statutory opportunity to withdraw consent at the officer's reading of the Informing the Accused form to him. Based on the officer's testimony as corroborated by the recording of the officer's interaction with Brar, the circuit court's finding that Brar consented was not clearly erroneous.

         ¶35 Having concluded that Brar consented, we must determine whether his consent was voluntary. We conclude that Brar voluntarily, albeit impliedly, consented when he chose to drive on Wisconsin roads. And, his subsequent statement to the officer, re-affirming his previously-given consent was likewise voluntary. Brar does not argue otherwise; in essence, he contends that the voluntariness of his consent dissipated sometime after he had already consented.

         ¶36 After consenting to the blood draw, Brar asked the officer if he needed to obtain a warrant to draw his blood. The officer shook his head no in response. However, the officer's response did not vitiate the voluntariness of Brar's consent.

         ¶37 After all, the officer did not need a warrant because Brar already had consented. And, the officer was not obligated to explain further than he did; for example, an individual need not be informed of the opportunity to withdraw consent under Wis.Stat. § 343.305(3) in order for consent to be voluntary. See Schneckloth, 412 U.S. at 229 (reasoning, that requiring the State to "affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted") . Even if the import of Brar's question was unclear to the officer, "an officer need not clarify whether an ambiguous statement is meant to withdraw otherwise valid consent to search." See State v. Wantland, 2014 WI 58, ¶47, 355 Wis.2d 135, 848 N.W.2d 810. Accordingly, the officer accurately responded to Brar's question and had no obligation to supply Brar with further information.

         ¶38 However, even if the officer's response to Brar's questions were unclear, it was insufficient to vitiate Brar's previously-given and subsequently re-affirmed voluntary consent. The voluntariness of consent is examined under the totality of the circumstances. And, the context in which Brar asked whether the officer needed a warrant suggests that Brar voluntarily consented despite the arguably unclear nature of the officer's response. Brar's question about a warrant was not an isolated question; Brar asked the officer numerous questions throughout the encounter, many of which pertained to aspects of the Informing the Accused form. He also repeatedly lamented his guilt. In the context of his interaction with the officer, Brar's one question about the necessity of a warrant was insufficient to render his consent involuntary.

         ¶39 Moreover, Brar was informed of his opportunity to withdraw consent to a blood draw when the officer read him the Informing the Accused form. The officer asked him to provide a yes or no answer to the question of whether he would consent to a chemical evidentiary test. Earlier, the officer had explained the consequences of refusing a blood draw to Brar. As a result, Brar knew that he had the option of refusing a blood draw, yet he did not refuse. See United States v. Mendenhall, 446 U.S. 544, 559 (1980) (reasoning, "[because] the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive"). And, at no point did Brar as much as suggest an unwillingness to have his blood drawn.

         ¶40 Finally, Brar did not merely acquiesce to being searched. The cases in which courts have concluded consent was involuntary based on an individual's "mere acquiescence" are of no relevance to this case. "[A]cquiescence causes Fourth Amendment problems when the acquiescence is made to claimed lawful authority to search, when no such lawful authority exists." Johnson, 299 Wis.2d 675, ¶69 (Roggensack, J., dissenting) (citing Bumper, 391 U.S. at 548-49). Brar asked the officer a straightforward question: whether the officer needed a warrant to conduct a blood draw. The officer, at that point, answered the question accurately; he did not need a warrant because Brar had consented. In contrast to the cases in which courts have concluded an individual merely acquiesced to a search, the officer here did not assert that he would conduct a blood draw with or without Brar's consent. See Bumper, 391 U.S. at 548 ("The issue thus presented is whether a search can be justified as lawful on the basis of consent when that 'consent' has been given only after the official conducting the search has asserted that he possesses a warrant.").

         ¶41 In sum, Brar's "will was [not] overborne" by the officer. See Schneckloth, 412 U.S. at 226. After examining the totality of the circumstances, we conclude that Brar voluntarily consented to a blood draw.

         III. CONCLUSION

         ¶42 In light of the foregoing, we conclude that the circuit court's finding that Brar consented to the blood draw was not clearly erroneous. Additionally, we conclude that Brar's consent was voluntary. Accordingly, we affirm the decision of the court of appeals.

         The decision of the court of appeals is affirmed.

         ¶43 REBECCA GRASSL BRADLEY, J. (concurring).

         I concur with the court's mandate to affirm the decision of the court of appeals, and I join Part I of Justice Daniel Kelly's concurrence.

         ¶44 DANIEL KELLY, J. (concurring).

         I join the court's mandate and the opinion to the extent it discusses Mr. Brar's express consent to the blood test while he was present in the police station. I cannot join any part of the court's discussion of implied consent because it misunderstands how our implied consent law functions, it says "consent" implied by law is something voluntarily given when such a thing is impossible, it introduces a destructive new doctrine that reduces constitutional guarantees to a matter of legislative grace, and it fails to properly distinguish between (a) express consent, (b) consent implied by conduct, and (c) "consent" implied by law. And all of this was entirely gratuitous-as the court's own opinion demonstrates, implied consent need have no part in our resolution of the case. Because this last point describes where the court's opinion should have ended, I will begin there.

         I

         ¶45 There was no need to march into the minefield of "consent" implied by law.[1] Mr. Brar asked us to review his conviction for two reasons. First, he says he did not give express consent to chemical testing of his blood. And second, he says he only acquiesced to the blood test because Officer Michael Wood said he did not need a warrant to obtain a blood sample. The presenting questions, therefore, called for us to review what Mr. Brar said and-if it amounted to express consent-determine whether his consent was voluntary. State v. Artie, 2010 WI 83, ¶30, 327 Wis.2d 392, 786 N.W.2d 430');">786 N.W.2d 430 ("To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and, second whether the consent given was voluntary.").

         ¶46 We are not considering Mr. Brar's interaction with Officer Wood in the first instance, of course. We are reviewing the circuit court's findings of fact, which we leave undisturbed unless they are clearly erroneous. Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶34, 319 Wis.2d 1, 768 N.W.2d 615. According to the circuit court, Officer Wood asked Mr. Brar whether he would submit to an evidentiary chemical test of his blood. The record reflects that Mr. Brar said "of course, " and that he didn't want to lose his driving privileges. Our review revealed nothing clearly erroneous about the circuit court's findings, and so we accepted that Mr. Brar expressly consented to a blood test.

         ¶47 We promptly, and properly, dispatched Mr. Brar's argument that his consent was not voluntary. According to Mr. Brar, when Officer Wood told him he did not need a warrant to conduct the blood test, he made a misrepresentation of law sufficient to negate the voluntariness of his consent. But Officer Wood's statement came after Mr. Brar's consent, which made his statement correct-he didn't need a warrant because Mr. Brar had consented to the search. See Artie, 327 Wis.2d 392, ¶29 (One well-established exception to the warrant requirement is a search conducted pursuant to consent.). Thus, there was no misrepresentation to cast doubt on the voluntariness of Mr. Brar's consent. Mr. Brar did not argue his consent was involuntary for any other reason, so we properly concluded his consent was constitutionally valid.

         ¶48 That should have been the end of our opinion. Traditionally, when the presenting questions resolve the matter, we declare our treatment of the case complete at that point. See Black v. City of Milwaukee, 2016 WI 47, ¶39 n.24, 369 Wis.2d 272, 882 N.W.2d 333, cert, denied sub nom. Milwaukee Police Ass'n v. City of Milwaukee, 137 S.Ct. 538 (2016) ("We do not address these issues because they are not necessary to resolve this case"); see also State v. Cain, 2012 WI 68, ¶37 n.ll, 342 Wis.2d 1, 816 N.W.2d 177 ("[A]n appellate court should decide cases on the narrowest possible grounds." (quoting Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis.2d 300, 786 N.W.2d 15)); Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis.2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule, when our resolution of one issue disposes of a case, we will not address additional issues.") . Experience has taught us it is usually wise to leave peripheral questions to a future case in which they return as dispositive issues. There are good reasons to honor that experience. The process of reasoning from premises to conclusion imposes a rigorous discipline on our research, deliberation, and analysis that is absent when we opine on matters beyond those necessary to our judgment. The court's opinion validates the wisdom of our tradition.

         II

         ¶49 Not only did we boldly march into the "implied consent" minefield, we did it blindfolded. Our implied consent statute, Wis.Stat. § 343.305 (2013-14), [2] is not a model of clarity. That should have driven us to a searching, wide-eyed perusal of the statute's language to help us through this fraught territory. Instead, with the benefit of just three cursory sentences addressing the statute's terms, we announced that it provides a real-life, constitutionally-sufficient, consent to a blood test: "Brar consented under Wisconsin's implied consent law. He availed himself of the roads of Wisconsin, and as a result, he consented through his conduct to a blood draw." Majority op., ¶29. That, however, is not what the statute does.

         ¶50 The question the court answered, but did not analyze, is whether "implied consent" actually authorizes a law enforcement officer to obtain a sample of a driver's blood. To discover whether it does, we must consider three of the statute's functional components. The first addresses itself to its eponymous subject-"consent" implied by law (I will call this the "Implied Consent Component"). Wis.Stat. § 343.305(2). The second component governs a law enforcement officer's request for a blood test (the "Test Authorization Component") . Wis.Stat. § 343.305(3)-(4) .[3] The third covers the consequences for refusing an officer's request for a test (the "Penalty Component"). Wis.Stat. § 343.305(9)-(10). With but one exception that is not relevant here, there is no operational connection between the Implied Consent Component and the Test Authorization Component.[4]

         ¶51 By its own terms, the Implied Consent Component isolates itself from the authorization the State must obtain to collect a sample of the driver's blood. In relevant part, it says this:

Implied Consent. 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, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol . . . 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) . Any such tests shall be administered upon the request of a law enforcement officer.

         Wis. Stat. § 343.305(2) (emphases added). This provision creates the "implied consent, " but it simultaneously forecasts its operational independence from the Test Authorization Component: Operating a motor vehicle gives rise to "deemed" consent, but the actual blood test must be requested by the law enforcement officer.[5]

         ¶52 What the Implied Consent Component forecasts, the Test Authorization Component makes explicit-the officer must ask the driver for permission to conduct a blood test: "Upon arrest of a person for [operating while intoxicated] ... a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2) ." Wis.Stat. § 343.305(3) (a) (emphasis added). When an officer asks a driver for permission to conduct a test, he must recite a very specific warning. The provision introducing the warning echoes the fact that he is asking permission-not telling: "At the time that a chemical test specimen is requested under sub. (3) (a), (am), or (ar), the law enforcement officer shall read the following to the person from whom the test specimen is requested . . . ." Wis.Stat. § 343.305(4) (emphases added). The statutorily-mandated warning confirms the officer is asking permission, and the driver may say "no" to the officer's request:

You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.

Wis. Stat. § 343.305(4) (emphases added).

         ¶53 I'm not going to pretend the meaning of "request" is an open question. We are all fluent English-speakers here, and we know it means what it so obviously does-it is a question, a seeking of an answer. And when the request is for a blood sample, we know the officer is asking permission to take it. I suppose someone might say the statute's repeated admonition that the officer must seek permission to take a sample is a tip of the hat to good manners. I trust the government's agents make every effort to be polite in their interactions with Wisconsin's residents, so this would be a frivolous mandate to write into a statute. Absent any textual hints that the repeated "request" requirement is more about etiquette than a mandate to ask permission, we shouldn't read it that way. See State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 ([S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612 N.W.2d 659)).

         ¶54 So what does that mean for "implied consent"? It is axiomatic that if one must ask for something, then one doesn't yet have it. If the statute's "implied consent" really is equal to a driver's voluntarily and freely given consent (as the court claims), then all of this "request" business is so much doubletalk. If the court is right, then there is no need to ask because the law says we may act as though the driver already said "yes." So Wis.Stat. § 343.305 (3) (a) would read: "Upon arrest of a person for [operating while intoxicated] ... a law enforcement officer may requesttell the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2) ." And § 343.305(4) would have to read: "At the time that a driver is told to provide a chemical test specimen i-s-requested under sub. (3) (a), (am), or (ar), the law enforcement officer shall read the following to the person told to provide afrom-whom-fefee test specimen 4-s-rcqucstcd . . . ." The warning required by § 343.305(4) would need to be similarly amended to remove the "request" language, as well as the confirmation that the subject can tell the officer "no." But the officer does have to ...


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