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State v. Blackman

Supreme Court of Wisconsin

July 7, 2017

State of Wisconsin, Plaintiff-Appellant,
v.
Adam M. Blackman, Defendant-Respondent-Petitioner.

          Submitted on Briefs: Oral Argument: April 12, 2017

         REVIEW 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

         Circuit Court Fond du Lac County, No. 2013CF659 Gary R. Sharpe Judge

          For the defendant-respondent-petitioner, there were briefs by Dennis M. Melowski and Melowski & Associates, LLC, Sheboygan, with whom on the briefs were Chad A. Lanning and Lubar & Lanning, LLC, West Bend, and oral argument by Dennis M. Melowski.

          For the plaintiff-appellant there was a brief by Michael C. Sanders, assistant attorney general, and Brad D. Schimel, attorney general, and an oral argument by Michael C. Sanders.

          SHIRLEY S. ABRAHAMSON, J.

         ¶1 This is a review of a published decision of the court of appeals reversing a decision of the Circuit Court for Fond du Lac County, Gary R. Sharpe, Judge.[1] The circuit court granted Adam M. Blackman's motion to suppress the results of a blood test obtained under Wisconsin's implied consent law, Wis.Stat. § 343.305 (3) (ar)2. (2013-14).[2]The court of appeals reversed the order of the circuit court.

         ¶2 The issue presented is whether the consequences for refusing to submit to a blood test requested under Wis.Stat. § 343.305(3) (ar)2. were misrepresented to Blackman and, if so, whether that misrepresentation rendered Blackman's consent to the blood draw coerced, that is, not freely and voluntarily given under the Fourth Amendment.[3] Furthermore, if the court concludes that Blackman's consent to the blood draw was not voluntary consent under the Fourth Amendment, the issue becomes whether the court should apply the good faith exception to the exclusionary rule and admit the evidence of the blood alcohol concentration from the blood draw.

         ¶3 For the reasons set forth, we reverse the decision of the court of appeals, affirm the suppression order of the circuit court, and decline to apply the good faith exception to the exclusionary rule in the instant case.

         ¶4 The Fourth Amendment ordinarily requires a search warrant for a blood draw unless one of the exceptions to the warrant requirement exists. Birchfield v. North Dakota, 136 S.Ct. 2160, 2173 (2016) . In the instant case, the only exception to the warrant requirement at issue is whether Blackman's consent to the blood draw was given freely and voluntarily under the Fourth Amendment. When the legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given. State v. Johnson, 2007 WI 32, ¶16, 299 Wis.2d 675, 729 N.W.2d 182 (citing State v. Phillips, 218 Wis.2d 180, 197, 577 N.W.2d 794 (1998); Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).

         ¶5 Blackman submitted to a blood draw after Deputy Sheriff John Abler stated the consequences of refusing to submit to a test: Blackman (who was not suspected of a drunk-driving offense) was told that his operating privilege would be revoked if he refused to submit to a blood draw. This information was not accurate. A driver who was not suspected of a drunk-driving offense would prevail at a refusal hearing and his operating privilege would not be revoked. See Wis.Stat. § 343.305(9)(a)5.a.

         ¶6 For the reasons set forth, we conclude that the State did not prove by clear and convincing evidence that Blackman's consent to the blood draw was valid, that is, that it was freely and voluntarily given under the Fourth Amendment. Because the exclusionary rule's deterrent effect will be served in instant case by suppressing evidence of Blackman's blood test, we decline to apply the good faith exception to the exclusionary rule. The results of Blackman's blood draw are therefore suppressed.

         ¶7 Accordingly, the cause is remanded to the circuit court to reinstate its order suppressing the evidence and for further proceedings not inconsistent with the decision of this court.

         ¶8 Our decision is organized as follows:

I. We state the facts.
II. We state the standard of review.
III. Our analysis proceeds as follows:
(A) We examine Wis.Stat. § 343.305 to determine whether license revocation is a statutory consequence had Blackman refused to submit to a chemical test under Wis.Stat. § 343.305(3)(ar)2. We conclude that it is not.
(B) We determine whether Blackman's consent to the blood draw was obtained through misrepresentation, rendering his consent coerced, that is, not voluntary and free consent under the Fourth Amendment. We conclude that the consent was obtained through misrepresentation and was coerced.
(C) We determine whether to apply the good faith exception to the exclusionary rule in the instant case. We conclude that the good faith exception does not apply in the instant case.

         I

         ¶9 For purposes of the motion to suppress evidence of Blackman's blood test, the statement of facts is brief and not in dispute.

         ¶10 At about 10 A.M. on the morning of June 22, 2013, Blackman was driving his car in a northeast direction on County Highway WH in the Town of Taycheedah, Fond du Lac County. Blackman made a left turn onto Lakeview Road. As he was turning, his car collided with a bicyclist travelling in a southwest direction on County Highway WH.

         ¶11 A witness at the scene explained that Blackman's car collided with the bicyclist, causing the bicyclist to "fly up in the air, over the car, and land on the roadway." The bicyclist suffered great bodily harm, including a mandibular fracture, fractures to both forearms, rib fracture, sinus fracture, a C6 vertebrae fracture, liver laceration, lung contusion, and a subdural hemorrhaging brain bleed.

         ¶12 Blackman and the witness both stopped to check on the bicyclist. ¶13 Shortly after the collision, Fond du Lac Deputy Sheriff John Abler was dispatched to the scene.

         ¶14 Deputy Sheriff Abler testified at the suppression hearing that he had reason to believe that Blackman may have violated a state or local traffic law by failing to yield to the bicyclist and that the bicyclist sustained great bodily harm.

         ¶15 Deputy Sheriff Abler also testified that before the blood test was administered he did not have reason to believe that Blackman was under the influence of intoxicants. Deputy Sheriff Abler testified in response to questions by the prosecutor about any signs of intoxication as follows:

Q: You noticed no odor of intoxicants coming from him?
A: That's correct.
Q: You noticed no slurred speech
A: That is correct.
Q: You noticed no bloodshot eyes?
A: Correct.
Q: You noticed no glassy eyes?
A: Correct.
Q: You noticed no glassy eyes?
A: Correct.
Q: Okay. You noticed no signs with his balance or coordination?
A: I did not notice anything.
Q: You did not notice any mental impairment on his part, meaning it didn't seem like he was intoxicated or impaired in any way. Would you agree?
A: I agree.
Q: Okay. And, in fact, during your entire contact with Mr. Blackman, you never observed anything that you would have attributed to even the consumption of alcohol. Would you agree?
A: I agree.

         ¶16 Despite the absence of any signs that Blackman was intoxicated, Deputy Sheriff Abler testified that he explained to Blackman that it was "standard operating procedure for the department, when drivers are involved in accidents of a serious nature, to obtain a blood sample." Blackman went to the hospital and submitted to a blood test. Although Blackman rode in Deputy Sheriff Abler's squad car to the hospital, he was not considered under arrest.

         ¶17 At the hospital, Deputy Abler read the statutory Informing the Accused Form[4] to Blackman verbatim and requested that Blackman submit to a blood draw. The test of his blood revealed an alcohol concentration of .104.

         ¶18 The State charged Blackman with multiple offenses: Reckless driving causing great bodily harm, [5] injury by intoxicated use of a vehicle, [6] injury by use of a vehicle with a prohibited alcohol concentration (PAC), [7] operating a motor vehicle while under the influence of an intoxicant (OWI) first offense, [8] and operating a motor vehicle with a PAC.[9]

         ¶19 At a pretrial suppression hearing, the circuit court suppressed the evidence obtained from the blood draw on the ground that Blackman's consent was obtained by misstatements about the consequences of his refusal to take the test and therefore his consent was coerced.

         ¶20 According to the circuit court, the Informing the Accused Form under Wis.Stat. § 343.305(4) misstates the law by declaring that the refusal to take a test under § 343.305(3)(ar)2. will lead to revocation of a driver's operating privilege. The circuit court concluded that revocation for a refusal under Wis.Stat. § 343.305(3)(ar)2. would be "statutorily unenforceable" because the issues at a refusal hearing are "limited to" whether the officer had probable cause to arrest for an OWI-related offense, whether the officer complied with and read the Informing the Accused form, and whether the driver refused to permit the test.

         ¶21 Because the Deputy Sheriff had no probable cause to arrest Blackman for an OWI-related offense, the circuit court concluded that "if the statutory scheme does not support a revocation that is threatened, this Court finds that coercion has occurred." The circuit court ordered the evidence of the blood test suppressed.

         ¶22 The court of appeals reversed the circuit court's order. It ruled, relying on State v. Padley, 2014 WI.App. 65, 354 Wis.2d 545, 849 N.W.2d 867, that Blackman "impliedly consented" to the blood draw by driving in Wisconsin; that Blackman had a choice to submit a sample (actual consent) or to withdraw consent (refusal); that Blackman freely chose not to withdraw consent; that the Deputy Sheriff's misstatement of the statute did not "transform Blackman's freely given actual consent under Wisconsin's implied consent law into a coerced submittal." State v. Blackman, 2016 WI.App. 69, ¶¶2, 5, 10-12, 371 Wis.2d 635, 886 N.W.2d 94');">886 N.W.2d 94.

         ¶23 The concurring opinion in the court of appeals acknowledged that Blackman had a "legitimate gripe" about the form read to him. According to the concurrence, even if the form is "technically correct, " it is "incomplete and imprecise, no doubt" but "not inaccurate, " and the "threat of revocation was real, even if its longer term effects were in doubt."[10]

         ¶24 For the reasons set forth, we reverse the decision of the court of appeals, affirm the circuit court's order, and remand the cause to the circuit court for further proceedings not inconsistent with the decision of this court.

         II

         ¶25 We first address the standard of review. "Our review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact." State v. Tullberg, 2014 WI 134, ¶27, 359 Wis.2d 421, 857 N.W.2d 120. We review a question of constitutional fact under a two-step inquiry: First, we will uphold the circuit court's findings of fact unless those findings are clearly erroneous. Second, we conduct an independent, de novo analysis of the application of constitutional principles to the facts found. State v. Robinson, 2010 WI 80, ¶22, 327 Wis.2d 302, 786 N.W.2d 463.

         ¶26 We are also asked to interpret and apply Wis.Stat. § 343.305, the implied consent law. Interpretation and application of a statute is generally a question of law that this court decides independently of the circuit court or court of appeals, but benefiting from their analyses. State v. Harrison, 2015 WI 5, ¶37, 360 Wis.2d 246, 858 N.W.2d 372; State v. DuBose, 2005 WI 126, ¶16, 285 Wis.2d 143, 699 N.W.2d 582.

         III

         ¶27 As we stated earlier, the issue presented is whether the consequences for refusing to submit to a blood test requested under Wis.Stat. § 343.305(3)(ar)2. were misrepresented to Blackman and, if so, whether that misrepresentation rendered Blackman's consent to the blood draw coerced under the Fourth Amendment. We answer both parts of this question in the affirmative.

         A

         ¶28 We first consider the statutory provisions.

         ¶29 Under Wis.Stat. § 343.305(2), any person who drives or operates a motor vehicle upon the public highways of Wisconsin is "deemed to have given consent to one or more tests of his or her breath, blood, or urine . . . when requested to do so by a law enforcement officer under [Wis. Stat. § 343.305] sub. (3)(a) or (am) or when required to do so under sub. (3)(ar) or (b) ."

         ¶30 In the instant case, Deputy Sheriff Abler requested Blackman to submit to a blood draw pursuant to Wis.Stat. § 343.305(3)(ar)2., which provides in relevant part as follows:

If a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine .... If a person refuses to take a test under this subdivision, he or she may be arrested under par, (a). (Emphasis added.)

         ¶31 Five observations about Wis.Stat. § 343.305 (3) (ar)2.:

         ¶32 First, Wis.Stat. § 343.305 (3) (ar) 2. provides that if the driver refuses to take a test, he or she may be arrested.[11]Blackman's blood was drawn for a test. He was not arrested.

         ¶33 Second, Wis.Stat. § 343.305(3)(ar)2. does not provide that if the driver refuses to take a test, the driver's operating privilege will be revoked.

         ¶34 Third, under Wis.Stat. § 343.305(3)(ar)2., unlike under other provisions of § 343.305, an officer may request a blood draw without having a scintilla of a suspicion that the driver is intoxicated. The officer need have reason to believe only that a driver violated a state or local traffic law and was in an accident that caused great bodily harm.[12]

         ¶35 Fourth, the State argues that if Blackman were arrested for refusing to take a test under Wis.Stat. § 343.305(3) (ar)2., and if the officer then requested a sample under § 343.305(3)(a), and if Blackman refused to give a sample, the officer would be required to prepare a notice of intent to revoke Blackman's operating privilege by court order under § 343.305(9) (a). Thus the State argues that revocation is ultimately available under § 343.305(3)(ar)2. through §§ 343.305(3) (a) and 343.305(9) (a) .[13]

         ¶36 Fifth, Wis.Stat. § 343.305(4) sets forth the text that a law enforcement officer shall read to a person from whom a test specimen is requested under Wis.Stat. § 343.305(3)(a), (am), or (ar) . We refer to the text as the "Informing the Accused" form.

         ¶37 Deputy Sheriff Abler read the full text of the form to Blackman as provided in Wis.Stat. § 343.305(4) as follows:

Wis. Stat. § 343.305(4) Information. [At the time that a chemical test specimen is requested under sub. (3) (a), (am), or (ar), the law enforcement officer shall read the following to the person from whom the test specimen is requested]: [14]
You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified. (Emphasis added.)

         ¶38 The form differs from Wis.Stat. § 343.305 (3) (ar) (2), the statute applicable in the instant case. The form states that if a driver refuses to take any test under § 343.305(3)(ar)2., the driver's "operating privilege will be revoked" and the driver "will be subject to other penalties." The statute states only that if a driver refuses to take any test under § 343.305(3) (ar)2. the driver may be arrested. The form, therefore, does not comport with § 343.305(3) (ar)2. The proper advice to Blackman under § 343.305(3)(ar)2. was that his operating privilege would be revoked if he failed to request a refusal hearing.

         ¶39 Blackman contends that the text of the form applied to him is erroneous as a matter of law, misrepresented the consequences if he refused a blood test, and rendered his consent to the blood test coerced consent under the Fourth Amendment.

         ¶40 We agree with Blackman that revocation of the operating privilege is unenforceable against a driver who has refused a test under Wis.Stat. § 343.305(3)(ar)2. if the driver requests a refusal hearing.

         ¶41 Wisconsin Stat. § 343.305(9)(a) provides the penalty for refusing a post-arrest request for a chemical test under § 343.305(3) (a); this is not the penalty for refusing to take a test under Wis.Stat. § 343.305(3) (ar)2. Section 343.305(9) (a) states in part:

If a person refuses to take a test under sub. (3) (a), the law enforcement officer shall immediately prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege.[15]

         ¶42 Following receipt of notice of the State's intent to revoke his or her operating privilege pursuant to Wis.Stat. § 343.305(9)(a), the driver may request "a hearing on the revocation within 10 days .... If no request for a hearing is received within the 10-day period, the revocation commences 30 days after the notice is issued." Wis.Stat. § 343.305(9) (a)4. See also § 343.305(10)(a).

         ¶43 Regarding the refusal hearing, Wis.Stat. § 343.305(9) (a)5. limits the issues as follows:

5. [The] issues of the hearing are limited to:
a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol, a controlled substance or a controlled substance analog or any combination of alcohol, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders the person incapable of safely driving, or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of safely driving, having a restricted controlled substance in his or her blood, or having a prohibited alcohol concentration ....
b. Whether the officer complied with sub. (4) . [16]
c. Whether the person refused to permit the test. . . . (Emphasis added.)

         ¶44 Were Blackman to have had a refusal hearing, the issues would have been "limited to" the State proving (a) that the officer had probable cause to believe that the driver was driving or operating a motor vehicle "under the influence"; (b) that the officer complied with reading the Informing the Accused form set forth in § 343.305(4); and (c) that the driver refused to permit the blood test. If the State did not prove all three issues-and in the instant case, it could not prove that the Deputy Sheriff had probable cause to believe that Blackman was driving or ...


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