Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Dalton

Supreme Court of Wisconsin

July 3, 2018

State of Wisconsin, Plaintiff-Respondent,
Patrick H. Dalton, Defendant-Appellant-Petitioner.

          Oral Argument: March 12, 2018

          Circuit Court Washington County L.C. No. 2014CM117 Todd K. Martens Judge.

         REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.

          For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Hannah Schieber Jurss, assistant state public defender.

          For 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.


         ¶1 The petitioner, Patrick Dalton, seeks review of an unpublished court of appeals decision affirming his judgment of conviction and sentence and upholding the circuit court's order denying his postconviction motion.[1]Dalton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.

         ¶2 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 blood draw.

         ¶3 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.

         ¶4 We further conclude that the circuit court violated Birchfield v. North Dakota, 579 U.S., 136 S.Ct. 2160, 2185- 86 (2016), [2] 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.

         ¶5 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.


         ¶6 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.

         ¶7 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 helicopter.

         ¶8 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.

         ¶9 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.

         ¶10 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.

         ¶11 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.

         ¶12 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 lethargic.

         ¶13 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.[3] Dalton refused a blood draw.

         ¶14 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.

         ¶15 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.

         ¶16 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.

         ¶17 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.

         ¶18 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 southern half.

         ¶19 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.[4] The case proceeded directly to sentencing.

         ¶20 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.

         ¶21 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.

         Dalton was sentenced to 180 days in jail on the OWI count and 90 days on the OAR count, to be served consecutively.

         ¶22 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.

         ¶23 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 meritless motion[.]"

         ¶24 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 accordingly."

         ¶25 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.

         ¶26 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[5] hearing and directed the circuit court to address Dalton's claim for resentencing in light of Birchfield.

         ¶27 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."

         ¶28 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.

         ¶29 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 meritless motion."

         ¶30 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 resentencing.

         ¶31 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

         ¶32 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 one. Id.

         ¶33 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 appeals. Id.

         ¶34 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, ¶23.

         ¶35 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 305.

         ¶36 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).


         ¶37 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 of Birchfield.


         ¶38 The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect against unreasonable searches and seizures.[6] 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).

         ¶39 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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.