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State v. Mitchell

Supreme Court of Wisconsin

July 3, 2018

State of Wisconsin, Plaintiff-Respondent,
Gerald P. Mitchell, Defendant-Appellant.

          Oral Argument: April 11, 2018

          Circuit Court Sheboygan County L.C. No. 2013CF365 Terence T. Bourke Judge.

         Appeal from a judgment of the Circuit Court. Affirmed.

          For 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.

          For 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.

          An 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. Bias.


         ¶1 This appeal is before us on certification from the court of appeals.

         ¶2 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).[1]Mitchell contends that the blood draw was a search conducted in violation of his Fourth Amendment rights.

         ¶3 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.

         I. BACKGROUND

         ¶4 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.

         ¶5 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.

         ¶6 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.[2] Jaeger then arrested Mitchell for operating while intoxicated.

         ¶7 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.

         ¶8 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.

         ¶9 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.[3] They did so. Mitchell did not awaken during the procedure.

         ¶10 The blood draw occurred approximately one hour following Mitchell's arrest. The analysis of his blood sample showed a BAC of 0.222.

         ¶11 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 Wisconsin Constitution.

         ¶12 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.

         ¶13 The circuit court[4] 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.

         ¶14 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 seizures."

         ¶15 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, [5] 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 Fourth Amendment.


         A. Standard of Review

         ¶16 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.

         B. Fourth Amendment General Principles

         ¶17 The Fourth Amendment to the United States Constitution, and its Wisconsin counterpart, Article I, Section 11 of the Wisconsin Constitution, [6] 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 (1991))) .

         ¶18 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) .

         ¶19 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) .

         C. Consent

         ¶20 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.

         1. Implied Consent

         ¶21 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.

         ¶22 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) .

         ¶23 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)).

         ¶24 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.

         ¶25 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 search).

         ¶26 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.

         ¶27 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.[7] 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 searched.

         ¶28 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.

         ¶29 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.[8] This qualified consent to search is required in order to exercise the privilege of driving in Wisconsin.[9] 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) .[10]

         ¶30 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 inherent right.").

         ¶31 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. at 2185.

         ¶32 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.

         ¶33 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. Id.

         ¶34 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) .

         ¶35 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).

         ¶36 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) .

         ¶37 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 § 343.305(4).

         ¶38 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) .

         ¶39 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.") [11]

         ¶40 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. § 343.305(4).

         ¶41 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.

         ¶42 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., ΒΆ3. Similarly, the Supreme Court of ...

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