recommended for publication in the official reports.
from a judgment and an order of the circuit court for
Milwaukee County, No. 2013CF3370 M. JOSEPH DONALD, Judge.
Kessler, P.J., Kloppenburg and Dugan, JJ.
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.
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.
Following his arrest, Vanderhoef was transported to Wheaton
Franciscan Hospital where the hospital administered a urine
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.
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.
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),  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.
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.
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.
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