Argument: April 11, 2018
Circuit Court Sheboygan County L.C. No. 2013CF365 Terence T.
from a judgment of the Circuit Court. Affirmed.
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.
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.
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. Bias, and Gibson, Dunn & Crutcher, LLP, Los
Angeles, California. There was an oral argument by Lauren M.
PATIENCE DRAKE ROGGENSACK, C.J.
This appeal is before us on certification from the court of
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).Mitchell contends that the blood draw was a
search conducted in violation of his Fourth Amendment rights.
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.
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.
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.
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
test, which indicated a blood alcohol concentration (BAC) of
0.24. Jaeger then arrested Mitchell for
operating while intoxicated.
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.
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.
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. They did so.
Mitchell did not awaken during the procedure.
The blood draw occurred approximately one hour following
Mitchell's arrest. The analysis of his blood sample
showed a BAC of 0.222.
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
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.
The circuit court 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 draw was lawful. A jury convicted
Mitchell of the OWI and PAC charges.
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
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,
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
Standard of Review
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');">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.
Fourth Amendment General Principles
The Fourth Amendment to the United States Constitution, and
its Wisconsin counterpart, Article I, Section 11 of the
Wisconsin Constitution,  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 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
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');">898 N.W.2d 499 (quoting
Tullberg, 359 Wis.2d 421, ¶30) .
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. 2 92, 134 S.Ct. 1126, 1137 (2014); Schneckloth
v. Bustamonte, 412 U.S. 218, 222 (1973) .
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. Artie, 2010 WI 83, ¶30, 327 Wis.2d 392, 786
N.W.2d 430. Second, we examine whether the consent was
voluntarily given. Id.
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');">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.
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
which consent was lawfully implied: Florida v.
Jardines, 569 U.S. 1 (2013) and Marshall v.
Barlow's, Inc., 436 U.S. 307 (1978) .
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)).
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.
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
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 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.
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. 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
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.
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. This qualified consent to search is
required in order to exercise the privilege of driving in
Wisconsin. As Birchfield explained, implied
consent laws condition "the privilege of driving on
state roads 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)
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 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
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.
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.
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 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.
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) .
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).
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) .
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 would be no reason to provide a
statutory opportunity to withdraw consent under §
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) .
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] driver has no statutory or constitutional right to
refuse [blood alcohol testing] without consequences.")
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. §
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 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.
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 ...