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State v. Vanderhoef

Court of Appeals of Wisconsin, District I

April 30, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Gerald J. Vanderhoef, Defendant-Appellant.

         Not recommended for publication in the official reports.

          APPEAL from a judgment and an order of the circuit court for Milwaukee County, No. 2013CF3370 M. JOSEPH DONALD, Judge.

          Before Kessler, P.J., Kloppenburg and Dugan, JJ.

          KESSLER, P.J.

         ¶1 Gerald J. Vanderhoef appeals the judgment of conviction, following a no contest plea, of one count of operating while intoxicated (OWI), as a sixth offense. He also appeals from the order denying his postconviction motion for relief. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

         BACKGROUND

         ¶2 On July 26, 2013, Vanderhoef was charged with one count of operating while intoxicated as a fifth or sixth offense. According to the criminal complaint, on July 24, 2013, at 2:10 a.m., Oak Creek police responded to a report of a vehicle in a field at the intersection of South Chicago Road and East Ryan Road. When police arrived, Officer Ashley Schnering observed Vanderhoef standing in the middle of road. When Schnering tried to approach Vanderhoef he repeatedly said "just shoot me." Vanderhoef did not follow Schnering's orders and was ultimately tased. When Vanderhoef was taken into custody, Schnering searched his vehicle and found a glass pipe with a "Chore boy" shoved in the end of it, which Schnering recognized as a crack pipe. The complaint further states that a citizen witness observed Vanderhoef's truck traveling at a high rate of speed, driving through a stop sign, and ultimately driving off the road into a field. The complaint states that the combination of Vanderhoef's behavior, the recovery of the crack pipe, and the witness's observations led Schnering to believe that Vanderhoef was intoxicated.

         ¶3 Following his arrest, Vanderhoef was transported to Wheaton Franciscan Hospital where the hospital administered a urine test[1] and where, pursuant to a warrant, Vanderhoef's blood was drawn. The State subpoenaed the results of the blood test and the hospital provided the results of the urine test. Both the urine and blood tests showed metabolites of cocaine. Vanderhoef filed a motion to suppress the results of the blood test, arguing that "he was subjected to an illegal search and seizure of a sample of his blood, conducted pursuant to" an invalid warrant. He later moved to exclude the results of the urine test, arguing that the test results were medically privileged.[2]

         ¶4 At the suppression motion hearing, Schnering testified about the events leading up to Vanderhoef's arrest and the blood draw. Schnering testified consistent with the criminal complaint regarding the events leading up to Vanderhoef's arrest. She also testified that following Vanderhoef's arrest, he was transported to the hospital. She testified that Vanderhoef did not speak to the officer at the hospital, nor did he respond to Schnering when she read him the "Informing the Accused" form. Schnering testified that she read the form multiple times and asked Vanderhoef if he consented to a blood draw, but he did not answer. Schnering marked Vanderhoef's refusal to respond as a refusal on the form and then obtained a warrant. Vanderhoef's blood was subsequently drawn.

         ¶5 As to the blood test, the State conceded that due to errors in the search warrant affidavit, the search warrant was invalid. However, the State argued that the blood draw was authorized by the implied consent law, see Wis. Stat. § 343.305(2) (2017-18), [3] and that under the circumstances Vanderhoef was incapable of withdrawing consent. As to the urine test, the State argued that no doctor-patient privilege or statutory exception applied to support exclusion of the urine test results.

         ¶6 The circuit court ultimately denied Vanderhoef's motions, determining that at the time of the blood draw, Vanderhoef was incapable of withdrawing consent and that the blood draw was therefore authorized under the implied consent law. The circuit court also found that the results of the urine test were admissible at trial.

         ¶7 Vanderhoef subsequently pled no contest to OWI as a fifth or sixth offense. The sentencing court sentenced Vanderhoef to two and one-half years of initial confinement and three years of extended supervision.

         ¶8 Vanderhoef filed a postconviction motion seeking additional sentencing credit, challenging the trial court's denial of his motion to suppress evidence, and seeking to withdraw his no contest plea on the grounds of ineffective assistance of counsel. The postconviction court granted the motion as it ...


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