Argument: March 12, 2018
Circuit Court Washington County L.C. No. 2014CM117 Todd K.
of a decision of the Court of Appeals. Reversed and cause
the defendant-appellant-petitioner, there were briefs filed
and an oral argument by Hannah Schieber Jurss, assistant
state public defender.
the plaintiff-respondent, there was a brief filed and an oral
argument by David H. Perlman, assistant attorney general,
with whom on the brief was Brad D. Schimel, attorney general.
WALSH BRADLEY, J.
The petitioner, Patrick Dalton, seeks review of an
unpublished court of appeals decision affirming his judgment
of conviction and sentence and upholding the circuit
court's order denying his postconviction
motion.Dalton asserts that he is entitled to
withdraw his no contest pleas because his trial counsel was
ineffective for failing to move to suppress blood evidence
collected without a warrant. In the alternative, he argues
that he is entitled to resentencing because the circuit court
relied on an improper sentencing factor.
Specifically, Dalton contends first that because police
lacked the exigent circumstances necessary to draw his blood
without a warrant, his counsel was ineffective for failing to
move to suppress the evidence. He asserts next that the
circuit court impermissibly lengthened his sentence for
exercising his constitutional right to refuse a warrantless
We conclude that exigent circumstances existed, permitting
police to draw Dalton's blood absent a warrant.
Accordingly, his counsel was not ineffective for failing to
file a meritless motion to suppress.
We further conclude that the circuit court violated
Birchfield v. North Dakota, 579 U.S., 136 S.Ct.
2160, 2185- 86 (2016),  by explicitly subjecting Dalton to a
more severe criminal penalty because he refused to provide a
blood sample absent a warrant. Consequently, Dalton is
entitled to resentencing.
Accordingly, although we agree with the court of appeals that
Dalton's counsel was not ineffective, we nevertheless
reverse and remand to the circuit court for resentencing.
This case arises from a single car crash in the Village of
Richfield in which Patrick Dalton (Dalton) was the driver.
After driving erratically and at speeds reaching
approximately one hundred miles per hour, Dalton crashed his
car into a ditch. Both Dalton and his passenger were injured.
Washington County sheriff's deputies responded to the
scene of the crash at 10:07 p.m. on December 12, 2013. Upon
arrival, the passenger in the car informed deputies that
Dalton had been drinking and that Dalton was the driver of
the car. When law enforcement arrived, Dalton was lying on
the roof of the car, unconscious, and smelled of alcohol.
Dalton was taken about a mile from the crash scene by
ambulance, where he awaited the arrival of a Flight for Life
After Dalton was driven away from the scene, Washington
County Deputy Dirk Stolz remained and took the lead in
investigating the scene. Deputy Stolz was accompanied by
Deputies Charles Vanderheiden, Chad Polinske, and Michael
Anderson. They were later joined by Lieutenant Robert Martin.
Ten to 15 members of the Richfield Fire Department were also
present, working to keep the area safe and blocking traffic
to ensure officer safety.
While Deputy Polinske interviewed witnesses, Deputy
Vanderheiden left the crash scene to await the helicopter
with Dalton, who remained in the ambulance and unconscious.
Deputy Venderheiden arrived at the landing zone at 10:37 p.m.
and testified that it took about 45 minutes from the time he
got there for the helicopter to arrive. Upon its arrival,
Flight for Life airlifted Dalton from the landing zone to
Froedtert Hospital in Milwaukee.
Subsequent to Dalton being airlifted from the scene, Deputy
Vanderheiden traveled to Community Memorial Hospital in
Menomonee Falls to speak with the passenger. Leaving the
crash scene at 11:14 p.m., Deputy Stolz drove to Froedtert
Hospital in Milwaukee to reconnect with Dalton.
When Deputy Stolz arrived at Froedtert Hospital at 11:54
p.m., Dalton was receiving emergency treatment. After the
treatment was complete, Deputy Stolz was able to speak to
Dalton, who had regained consciousness.
Upon interacting with Dalton, Deputy Stolz observed that
Dalton had glassy bloodshot eyes and the strong odor of
alcohol emanating from his mouth. Dalton also appeared
At approximately 12:05 a.m., nearly two hours after being
dispatched to the crash scene, Deputy Stolz informed Dalton
that he was under arrest and read Dalton the "Informing
the Accused" form. Dalton refused a blood draw.
Believing that there were exigent circumstances that would
obviate the need to obtain a warrant, Deputy Stolz then
instructed a nurse to draw Dalton's blood, which was
accomplished at 12:14 a.m. A subsequent blood test indicated
that Dalton's blood alcohol content was 0.238 grams per
100 milliliters, nearly three times the legal limit of 0.08.
At the time Deputy Stolz read Dalton the Informing the
Accused form, there were nine deputy sheriffs on duty in
Washington County, along with one supervisor. Several of
those who were present at the crash scene left and proceeded
directly to other incidents that had taken place in the
county that night requiring immediate attention.
Deputy Polinske, who had initially responded to the crash
scene, ended his work day at 11:00 p.m. Deputy Anderson
arrived on the scene at 10:15 p.m. and was cleared to leave
at 11:42 p.m. He and one other deputy were subsequently
dispatched to an auto theft call in the Village of Richfield.
Lieutenant Martin arrived at the scene at 11:01 p.m. and was
cleared to leave at 11:46 p.m. After leaving the crash site
he proceeded immediately to another auto accident that
involved personal injury in which the driver had fled the
scene, the vehicle was in the middle of the road, and power
poles were downed. Three additional deputies accompanied
Lieutenant Martin to this scene.
With Deputy Stolz in Milwaukee attending to Dalton and Deputy
Vanderheiden in Menomonee Falls with the passenger, only two
deputies were left to cover all of Washington County. One of
these deputies was assigned to the northern half of the 432
square mile county, while the other was assigned to the
Dalton was ultimately charged with three offenses: operating
while intoxicated (OWI) as a second offense, operating with a
prohibited alcohol concentration (PAC) as a second offense,
and operating after revocation (OAR). Dalton entered no
contest pleas to the OWI and OAR charges, and the PAC charge
was dismissed and read in. The case proceeded directly to
At sentencing, the circuit court heard argument from the
State and Dalton's counsel, as well as a brief statement
from Dalton himself. In pronouncing its sentence, the circuit
court observed the nature of the offense, addressing Dalton:
You certainly were driving like a maniac this night, and you
were extremely uncooperative with the officers. You could
have killed your friend, you could have killed yourself, or
you could have killed someone completely innocent, and you
acted in total disregard of those risks, endangering anyone
else who was on the road at the time.
The circuit then proceeded to address Dalton's refusal to
submit to a blood test:
The other thing you did is anybody who drives a motor vehicle
in Wisconsin impliedly consents to a blood or breath draw
after they're arrested. And you were arrested, and you
disregarded that, and you will be punished for that today.
You don't have the right not to consent. And that's
going to result in a higher sentence for you.
was sentenced to 180 days in jail on the OWI count and 90
days on the OAR count, to be served consecutively.
Dalton filed a postconviction motion seeking to withdraw his
no contest pleas. He asserted that his counsel was
ineffective for failing to file a motion to suppress the
evidence resulting from the warrantless blood draw. In the
event his ineffective assistance of counsel claim proved
unsuccessful, he alternatively sought resentencing. He
contended that the circuit court erroneously exercised its
discretion by explicitly punishing him for exercising his
constitutional right to refuse a warrantless blood draw.
The circuit court denied Dalton's motion for plea
withdrawal without holding an evidentiary hearing. It
concluded "that exigent circumstances justified the
warrantless blood draw in this case" and that therefore
"trial counsel is not ineffective for failing to file a
Dalton's motion for resentencing was also denied. In
denying the motion, the circuit court stated, "everybody
knows a court may not punish a person for exercise of the
constitutional right, a right to trial, right to remain
silent, but there is no right to refuse, so the [c]ourt has
discretion and I think [has] the responsibility to consider a
refusal an aggravating factor in sentencing an offender
Dalton appealed both the denial of his plea withdrawal motion
and his motion for resentencing. During the pendency of the
appeal, the United States Supreme Court decided
Birchfield, 136 S.Ct. 2160.
The court of appeals reversed the circuit court. See
State v. Dalton, No. 2016AP6-CR, unpublished slip op.
(Wis. Ct. App. July 20, 2016) (Dalton I) . It
remanded the case to the circuit court for a
Machner hearing and directed the circuit court to
address Dalton's claim for resentencing in light of
On remand, the circuit court held a Machner hearing,
where Dalton's trial counsel testified. Counsel stated
that prior to entering his pleas, Dalton had raised concerns
about the fact that the police had taken his blood without a
warrant. Counsel researched the issue and wrote a memo for
her file. In discussing with Dalton whether to file a motion
to suppress, counsel informed him that she "did not
believe there was a basis for it, and based on reviewing the
discovery in conjunction with the case law, and the facts
surrounding the case, we talked about it and determined there
was not a basis for suppressing the blood."
Following the Machner hearing, the circuit court
again denied Dalton's motion to withdraw his pleas,
concluding that exigent circumstances were present. In making
this decision, it observed:
This was a complicated and fluid situation. There's
potentially life-threatening injuries to the Defendant,
injuries to another individual. Sounds like a chaotic night
in Washington County in terms of the need for law enforcement
work in a variety of contexts and relatively serious
incidents. In addition to the responsibilities the deputy had
here for the traffic stop, he had to secure the accident,
examine the scene, talk to witnesses, help get the Defendant
out of the vehicle, get him into an ambulance, arrange for
transport by helicopter, and then follow him down there
promptly, and had to wait for him to get  medical clearance
before he could have contact with him. And this happened
outside of Washington County. These are highly unusual
factors. These are the kind of factors that are appropriate
to consider on a case-by-case basis in making a determination
about whether exigent circumstances exist.
With regard to counsel's decision not to file a motion to
suppress, the circuit court stated: "[counsel]
considered the propriety of a motion to suppress here. She
decided not to file one, because she didn't think it had
legal merit. She talked to the Defendant about it before
deciding." The circuit court viewed counsel's
decision as "the result of an exercise of reasonable
professional judgment" and determined that her
assistance was "not ineffective for failing to file a
Further, the circuit court determined that
Birchfield had no effect on its earlier sentencing
decision. It found Birchfield distinguishable from
this case because "Wisconsin doesn't criminalize a
refusal." In the circuit court's view,
"[i]ncreasing a punishment of a defendant because of his
refusal is not the same as making that refusal a crime . . .
." Accordingly, the circuit court denied the motion for
Dalton again appealed, renewing his arguments that he is
entitled to withdraw his plea due to ineffective assistance
of counsel and that he is entitled to resentencing pursuant
to Birchfield. The court of appeals affirmed the
circuit court, concluding that "exigent circumstances
existed that justified the warrantless draw of [Dalton's]
blood, and the circuit court did not err in considering
Dalton's refusal to the blood draw as an aggravating
factor in sentencing." State v. Dalton, No.
2016AP2483-CR, unpublished slip op., ¶1 (Wis. Ct. App.
July 19, 2017) (Dalton II) . II
This case presents Dalton's claim of ineffective
assistance of counsel. For a claim of ineffective assistance
of counsel to be successful, a defendant must demonstrate
both that (1) counsel's representation was deficient; and
(2) the deficiency was prejudicial. State v.
Maloney, 2005 WI 74, ¶14, 281 Wis.2d 595, 698
N.W.2d 583 (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). We need not address both components of
the inquiry if the defendant makes an insufficient showing on
Appellate review of an ineffective assistance of counsel
claim is a mixed question of law and fact. State v.
Erickson, 227 Wis.2d 758, ¶21, 596 N.W.2d 749
(1999) . The circuit court's findings of fact will not be
disturbed unless they are clearly erroneous. Id.
However, the ultimate determination of whether the
attorney's performance falls below the constitutional
minimum is a question of law we review independently of the
determinations rendered by the circuit court and court of
To demonstrate deficient performance, a defendant must show
that counsel's representation fell below an objective
standard of reasonableness considering all the circumstances.
State v. Carter, 2010 WI 40, ¶22, 324 Wis.2d
640, 782 N.W.2d 695 (citing Strickland, 466 U.S. at
688) . Counsel has a duty to reasonably investigate or to
make a reasonable decision that renders particular
investigations unnecessary. Carter, 324 Wis.2d 640,
In evaluating counsel's performance, this court is highly
deferential to counsel's strategic decisions. State
v. Balliette, 2011 WI 79, ¶26, 336 Wis.2d 358, 805
N.W.2d 334. Counsel's performance need not be perfect, or
even very good, to be constitutionally adequate. State v.
Thiel, 2003 WI 111, ¶19, 264 Wis.2d 571, 665 N.W.2d
We are also asked to determine whether the circuit court
erroneously exercised its discretion at sentencing. A circuit
court's sentence is a discretionary decision.
McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d
512 (1971) . On appeal, review is limited to determining if
discretion was erroneously exercised. State v.
Gallion, 2004 WI 42, ¶17, 270 Wis.2d 535, 678
N.W.2d 197. An exercise of discretion is erroneous if it is
based on an error of fact or law. Zarder v. Humama Ins.
Co., 2010 WI 35, ¶21, 324 Wis.2d 325, 782 N.W.2d
682. Additionally, a circuit court erroneously exercises its
sentencing discretion when it "actually relies on
clearly irrelevant or improper factors." State v.
Alexander, 2015 WI 6, ¶17, 360 Wis.2d 292, 858
N.W.2d 662 (quoting State v. Harris, 2010 WI 79,
¶66, 326 Wis.2d 685, 786 N.W.2d 409).
We begin by setting forth the principles of Fourth Amendment
law that govern blood draws in OWI cases. Next we apply those
principles to the facts of this case, examining Dalton's
contention that his counsel was ineffective for failing to
file a motion to suppress the results of the warrantless
blood draw. We then turn to Dalton's request for
resentencing due to the circuit court's alleged violation
The Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution protect
against unreasonable searches and seizures. State v.
Eason, 2001 WI 98, ¶16, 245 Wis.2d 206, 629 N.W.2d
625. Warrantless searches are presumptively unreasonable
unless an exception to the warrant requirement applies.
State v. Tullberg, 2014 WI 134, ¶30, 359 Wis.2d
421, 857 N.W.2d 120 (citations omitted).
An exception to the warrant requirement applies when there
are exigent circumstances, i.e. if the need for a search is
urgent and there is insufficient time to obtain a warrant.
Id. There are four circumstances which, when
measured against the time needed to obtain a warrant,
constitute the exigent circumstances required for a
warrantless search: (1) an arrest made in "hot
pursuit," (2) a threat to safety of a suspect or others,
(3) a risk that evidence will be destroyed, ...