Submitted on Briefs: Oral Argument: April 12, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d
635, 886 N.W.2d 94');">886 N.W.2d 94 PDC No: 2016 WI.App. 69 - Published
Court Fond du Lac County, No. 2013CF659 Gary R. Sharpe Judge
the defendant-respondent-petitioner, there were briefs
by Dennis M. Melowski and
Melowski & Associates, LLC, Sheboygan,
with whom on the briefs were Chad A. Lanning and Lubar &
Lanning, LLC, West Bend, and oral argument by Dennis M.
the plaintiff-appellant there was a brief by Michael C.
Sanders, assistant attorney general, and Brad D. Schimel,
attorney general, and an oral argument by Michael C. Sanders.
SHIRLEY S. ABRAHAMSON, J.
This is a review of a published decision of the court of
appeals reversing a decision of the Circuit Court for Fond du
Lac County, Gary R. Sharpe, Judge. The circuit court granted
Adam M. Blackman's motion to suppress the results of a
blood test obtained under Wisconsin's implied consent
law, Wis.Stat. § 343.305 (3) (ar)2.
(2013-14).The court of appeals reversed the order of
the circuit court.
The issue presented is whether the consequences for refusing
to submit to a blood test requested under Wis.Stat. §
343.305(3) (ar)2. were misrepresented to Blackman and, if so,
whether that misrepresentation rendered Blackman's
consent to the blood draw coerced, that is, not freely and
voluntarily given under the Fourth Amendment. Furthermore, if
the court concludes that Blackman's consent to the blood
draw was not voluntary consent under the Fourth Amendment,
the issue becomes whether the court should apply the good
faith exception to the exclusionary rule and admit the
evidence of the blood alcohol concentration from the blood
For the reasons set forth, we reverse the decision of the
court of appeals, affirm the suppression order of the circuit
court, and decline to apply the good faith exception to the
exclusionary rule in the instant case.
The Fourth Amendment ordinarily requires a search warrant for
a blood draw unless one of the exceptions to the warrant
requirement exists. Birchfield v. North Dakota, 136
S.Ct. 2160, 2173 (2016) . In the instant case, the only
exception to the warrant requirement at issue is whether
Blackman's consent to the blood draw was given freely and
voluntarily under the Fourth Amendment. When the legality of
a warrantless search is based on the consent of the
defendant, that consent must be freely and voluntarily given.
State v. Johnson, 2007 WI 32, ¶16, 299 Wis.2d
675, 729 N.W.2d 182 (citing State v. Phillips, 218
Wis.2d 180, 197, 577 N.W.2d 794 (1998); Bumper v. North
Carolina, 391 U.S. 543, 548 (1968)).
Blackman submitted to a blood draw after Deputy Sheriff John
Abler stated the consequences of refusing to submit to a
test: Blackman (who was not suspected of a drunk-driving
offense) was told that his operating privilege would be
revoked if he refused to submit to a blood draw. This
information was not accurate. A driver who was not suspected
of a drunk-driving offense would prevail at a refusal hearing
and his operating privilege would not be revoked.
See Wis.Stat. § 343.305(9)(a)5.a.
For the reasons set forth, we conclude that the State did not
prove by clear and convincing evidence that Blackman's
consent to the blood draw was valid, that is, that it was
freely and voluntarily given under the Fourth Amendment.
Because the exclusionary rule's deterrent effect will be
served in instant case by suppressing evidence of
Blackman's blood test, we decline to apply the good faith
exception to the exclusionary rule. The results of
Blackman's blood draw are therefore suppressed.
Accordingly, the cause is remanded to the circuit court to
reinstate its order suppressing the evidence and for further
proceedings not inconsistent with the decision of this court.
Our decision is organized as follows:
I. We state the facts.
II. We state the standard of review.
III. Our analysis proceeds as follows:
(A) We examine Wis.Stat. § 343.305 to determine whether
license revocation is a statutory consequence had Blackman
refused to submit to a chemical test under Wis.Stat. §
343.305(3)(ar)2. We conclude that it is not.
(B) We determine whether Blackman's consent to the blood
draw was obtained through misrepresentation, rendering his
consent coerced, that is, not voluntary and free consent
under the Fourth Amendment. We conclude that the consent was
obtained through misrepresentation and was coerced.
(C) We determine whether to apply the good faith exception to
the exclusionary rule in the instant case. We conclude that
the good faith exception does not apply in the instant case.
For purposes of the motion to suppress evidence of
Blackman's blood test, the statement of facts is brief
and not in dispute.
At about 10 A.M. on the morning of June 22, 2013, Blackman
was driving his car in a northeast direction on County
Highway WH in the Town of Taycheedah, Fond du Lac County.
Blackman made a left turn onto Lakeview Road. As he was
turning, his car collided with a bicyclist travelling in a
southwest direction on County Highway WH.
A witness at the scene explained that Blackman's car
collided with the bicyclist, causing the bicyclist to
"fly up in the air, over the car, and land on the
roadway." The bicyclist suffered great bodily harm,
including a mandibular fracture, fractures to both forearms,
rib fracture, sinus fracture, a C6 vertebrae fracture, liver
laceration, lung contusion, and a subdural hemorrhaging brain
Blackman and the witness both stopped to check on the
bicyclist. ¶13 Shortly after the collision, Fond du Lac
Deputy Sheriff John Abler was dispatched to the scene.
Deputy Sheriff Abler testified at the suppression hearing
that he had reason to believe that Blackman may have violated
a state or local traffic law by failing to yield to the
bicyclist and that the bicyclist sustained great bodily harm.
Deputy Sheriff Abler also testified that before the blood
test was administered he did not have reason to believe that
Blackman was under the influence of intoxicants. Deputy
Sheriff Abler testified in response to questions by the
prosecutor about any signs of intoxication as follows:
Q: You noticed no odor of intoxicants coming from him?
A: That's correct.
Q: You noticed no slurred speech
A: That is correct.
Q: You noticed no bloodshot eyes?
Q: You noticed no glassy eyes?
Q: You noticed no glassy eyes?
Q: Okay. You noticed no signs with his balance or
A: I did not notice anything.
Q: You did not notice any mental impairment on his part,
meaning it didn't seem like he was intoxicated or
impaired in any way. Would you agree?
A: I agree.
Q: Okay. And, in fact, during your entire contact with Mr.
Blackman, you never observed anything that you would have
attributed to even the consumption of alcohol. Would you
A: I agree.
Despite the absence of any signs that Blackman was
intoxicated, Deputy Sheriff Abler testified that he explained
to Blackman that it was "standard operating procedure
for the department, when drivers are involved in accidents of
a serious nature, to obtain a blood sample." Blackman
went to the hospital and submitted to a blood test. Although
Blackman rode in Deputy Sheriff Abler's squad car to the
hospital, he was not considered under arrest.
At the hospital, Deputy Abler read the statutory Informing
the Accused Form to Blackman verbatim and requested that
Blackman submit to a blood draw. The test of his blood
revealed an alcohol concentration of .104.
The State charged Blackman with multiple offenses: Reckless
driving causing great bodily harm,  injury by intoxicated use of
a vehicle,  injury by use of a vehicle with a
prohibited alcohol concentration (PAC),  operating a motor
vehicle while under the influence of an intoxicant (OWI)
first offense,  and operating a motor vehicle with a
At a pretrial suppression hearing, the circuit court
suppressed the evidence obtained from the blood draw on the
ground that Blackman's consent was obtained by
misstatements about the consequences of his refusal to take
the test and therefore his consent was coerced.
According to the circuit court, the Informing the Accused
Form under Wis.Stat. § 343.305(4) misstates the law by
declaring that the refusal to take a test under §
343.305(3)(ar)2. will lead to revocation of a
driver's operating privilege. The circuit court concluded
that revocation for a refusal under Wis.Stat. §
343.305(3)(ar)2. would be "statutorily
unenforceable" because the issues at a refusal hearing
are "limited to" whether the officer had probable
cause to arrest for an OWI-related offense, whether the
officer complied with and read the Informing the Accused
form, and whether the driver refused to permit the test.
Because the Deputy Sheriff had no probable cause to arrest
Blackman for an OWI-related offense, the circuit court
concluded that "if the statutory scheme does not support
a revocation that is threatened, this Court finds that
coercion has occurred." The circuit court ordered the
evidence of the blood test suppressed.
The court of appeals reversed the circuit court's order.
It ruled, relying on State v. Padley, 2014 WI.App.
65, 354 Wis.2d 545, 849 N.W.2d 867, that Blackman
"impliedly consented" to the blood draw by driving
in Wisconsin; that Blackman had a choice to submit a sample
(actual consent) or to withdraw consent (refusal); that
Blackman freely chose not to withdraw consent; that the
Deputy Sheriff's misstatement of the statute did not
"transform Blackman's freely given actual consent
under Wisconsin's implied consent law into a coerced
submittal." State v. Blackman, 2016 WI.App. 69,
¶¶2, 5, 10-12, 371 Wis.2d 635, 886 N.W.2d 94');">886 N.W.2d 94.
The concurring opinion in the court of appeals acknowledged
that Blackman had a "legitimate gripe" about the
form read to him. According to the concurrence, even if the
form is "technically correct, " it is
"incomplete and imprecise, no doubt" but "not
inaccurate, " and the "threat of revocation was
real, even if its longer term effects were in
For the reasons set forth, we reverse the decision of the
court of appeals, affirm the circuit court's order, and
remand the cause to the circuit court for further proceedings
not inconsistent with the decision of this court.
We first address the standard of review. "Our review of
an order granting or denying a motion to suppress evidence
presents a question of constitutional fact." State
v. Tullberg, 2014 WI 134, ¶27, 359 Wis.2d 421, 857
N.W.2d 120. We review a question of constitutional fact under
a two-step inquiry: First, we will uphold the circuit
court's findings of fact unless those findings are
clearly erroneous. Second, we conduct an independent, de novo
analysis of the application of constitutional principles to
the facts found. State v. Robinson, 2010 WI 80,
¶22, 327 Wis.2d 302, 786 N.W.2d 463.
We are also asked to interpret and apply Wis.Stat. §
343.305, the implied consent law. Interpretation and
application of a statute is generally a question of law that
this court decides independently of the circuit court or
court of appeals, but benefiting from their analyses.
State v. Harrison, 2015 WI 5, ¶37, 360 Wis.2d
246, 858 N.W.2d 372; State v. DuBose, 2005 WI 126,
¶16, 285 Wis.2d 143, 699 N.W.2d 582.
As we stated earlier, the issue presented is whether the
consequences for refusing to submit to a blood test requested
under Wis.Stat. § 343.305(3)(ar)2. were misrepresented
to Blackman and, if so, whether that misrepresentation
rendered Blackman's consent to the blood draw coerced
under the Fourth Amendment. We answer both parts of this
question in the affirmative.
We first consider the statutory provisions.
Under Wis.Stat. § 343.305(2), any person who drives or
operates a motor vehicle upon the public highways of
Wisconsin is "deemed to have given consent to one or
more tests of his or her breath, blood, or urine . . . when
requested to do so by a law enforcement officer under [Wis.
Stat. § 343.305] sub. (3)(a) or (am) or when required to
do so under sub. (3)(ar) or (b) ."
In the instant case, Deputy Sheriff Abler requested Blackman
to submit to a blood draw pursuant to Wis.Stat. §
343.305(3)(ar)2., which provides in relevant part as follows:
If a person is the operator of a vehicle that is involved in
an accident that causes the death of or great bodily harm to
any person and the law enforcement officer has reason to
believe that the person violated any state or local traffic
law, the officer may request the operator to provide one or
more samples of his or her breath, blood, or urine ....
If a person refuses to take a test under this
subdivision, he or she may be arrested under par, (a).
Five observations about Wis.Stat. § 343.305 (3) (ar)2.:
First, Wis.Stat. § 343.305 (3) (ar) 2. provides that if
the driver refuses to take a test, he or she may be
arrested.Blackman's blood was drawn for a
test. He was not arrested.
Second, Wis.Stat. § 343.305(3)(ar)2. does not provide
that if the driver refuses to take a test, the driver's
operating privilege will be revoked.
Third, under Wis.Stat. § 343.305(3)(ar)2., unlike under
other provisions of § 343.305, an officer may request a
blood draw without having a scintilla of a suspicion that the
driver is intoxicated. The officer need have reason to
believe only that a driver violated a state or local traffic
law and was in an accident that caused great bodily
Fourth, the State argues that if Blackman were arrested for
refusing to take a test under Wis.Stat. § 343.305(3)
(ar)2., and if the officer then requested a sample under
§ 343.305(3)(a), and if Blackman refused to give a
sample, the officer would be required to prepare a notice of
intent to revoke Blackman's operating privilege by court
order under § 343.305(9) (a). Thus the State argues that
revocation is ultimately available under §
343.305(3)(ar)2. through §§ 343.305(3) (a) and
343.305(9) (a) .
Fifth, Wis.Stat. § 343.305(4) sets forth the text that a
law enforcement officer shall read to a person from whom a
test specimen is requested under Wis.Stat. §
343.305(3)(a), (am), or (ar) . We refer to the text as the
"Informing the Accused" form.
Deputy Sheriff Abler read the full text of the form to
Blackman as provided in Wis.Stat. § 343.305(4) as
Wis. Stat. § 343.305(4) Information. [At the time that a
chemical test specimen is requested under sub. (3) (a), (am),
or (ar), the law enforcement officer shall read the following
to the person from whom the test specimen is requested]:
You have either been arrested for an offense that involves
driving or operating a motor vehicle while under the
influence of alcohol or drugs, or both, or you are the
operator of a vehicle that was involved in an accident that
caused the death of, great bodily harm to, or substantial
bodily harm to a person, or you are suspected of driving or
being on duty time with respect to a commercial motor vehicle
after consuming an intoxicating beverage.
This law enforcement agency now wants to test one or more
samples of your breath, blood or urine to determine the
concentration of alcohol or drugs in your system. If any test
shows more alcohol in your system than the law permits while
driving, your operating privilege will be suspended. If
you refuse to take any test that this agency requests, your
operating privilege will be revoked and you will be subject
to other penalties. The test results or the fact that
you refused testing can be used against you in court.
If you take all the requested tests, you may choose to take
further tests. You may take the alternative test that this
law enforcement agency provides free of charge. You also may
have a test conducted by a qualified person of your choice at
your expense. You, however, will have to make your own
arrangements for that test.
If you have a commercial driver license or were operating a
commercial motor vehicle, other consequences may result from
positive test results or from refusing testing, such as being
placed out of service or disqualified. (Emphasis added.)
The form differs from Wis.Stat. § 343.305 (3) (ar) (2),
the statute applicable in the instant case. The form states
that if a driver refuses to take any test under §
343.305(3)(ar)2., the driver's "operating privilege
will be revoked" and the driver
"will be subject to other penalties." The
statute states only that if a driver refuses to take any test
under § 343.305(3) (ar)2. the driver may be arrested.
The form, therefore, does not comport with § 343.305(3)
(ar)2. The proper advice to Blackman under §
343.305(3)(ar)2. was that his operating privilege
would be revoked if he failed to request a refusal
Blackman contends that the text of the form applied to him is
erroneous as a matter of law, misrepresented the consequences
if he refused a blood test, and rendered his consent to the
blood test coerced consent under the Fourth Amendment.
We agree with Blackman that revocation of the operating
privilege is unenforceable against a driver who has refused a
test under Wis.Stat. § 343.305(3)(ar)2. if the driver
requests a refusal hearing.
Wisconsin Stat. § 343.305(9)(a) provides the penalty for
refusing a post-arrest request for a chemical test
under § 343.305(3) (a); this is not the penalty for
refusing to take a test under Wis.Stat. § 343.305(3)
(ar)2. Section 343.305(9) (a) states in part:
If a person refuses to take a test under sub. (3) (a), the
law enforcement officer shall immediately prepare a notice of
intent to revoke, by court order under sub. (10), the
person's operating privilege.
Following receipt of notice of the State's intent to
revoke his or her operating privilege pursuant to Wis.Stat.
§ 343.305(9)(a), the driver may request "a hearing
on the revocation within 10 days .... If no request for a
hearing is received within the 10-day period, the revocation
commences 30 days after the notice is issued." Wis.Stat.
§ 343.305(9) (a)4. See also §
Regarding the refusal hearing, Wis.Stat. § 343.305(9)
(a)5. limits the issues as follows:
5. [The] issues of the hearing are limited to:
a. Whether the officer had probable cause to believe the
person was driving or operating a motor vehicle while under
the influence of alcohol, a controlled substance or a
controlled substance analog or any combination of alcohol, a
controlled substance and a controlled substance analog, under
the influence of any other drug to a degree which renders the
person incapable of safely driving, or under the combined
influence of alcohol and any other drug to a degree which
renders the person incapable of safely driving, having a
restricted controlled substance in his or her blood, or
having a prohibited alcohol concentration ....
b. Whether the officer complied with sub. (4) .
c. Whether the person refused to permit the test. . . .
Were Blackman to have had a refusal hearing, the issues would
have been "limited to" the State proving (a) that
the officer had probable cause to believe that the driver was
driving or operating a motor vehicle "under the
influence"; (b) that the officer complied with reading
the Informing the Accused form set forth in §
343.305(4); and (c) that the driver refused to permit the
blood test. If the State did not prove all three issues-and
in the instant case, it could not prove that the Deputy
Sheriff had probable cause to believe that Blackman was
driving or ...