State v. Adam M. Blackman

Plаintiff-Appellant, State of Wisconsin, v. Adam M. Blackman, Defendant-Respondent-Petitioner.

Supreme Court argument April No. 2015AP450-CR. Oral July Decided 2017 WI 77 342 defendant-respondent-petitioner, there For by Melowski & M. Melowski and briefs Dennis were Sheboygan, Associates, CCC, with whom on the briefs Canning, Canning CCC, & and Luhar Chad A. were argument by M. Melowski. Dennis Bend, and oral West by plaintiff-appellant there was a brief For the attorney general, Sanders, assistant Michael C. argu- attorney general, Schimel, and an oral D. Brad Sanders. ment Michael C. This is a ABRAHAMSON, J. S. 1. SHIRLEY appeals published of the court decision

review of a reversing for Fond du Circuit Court a decision of the Sharpe, Judge.1 County, Gary The circuit court R. Lac suppress granted motion Adam M. Blackman's under Wisconsin's test obtained results of a blood implied 343.305(3)(ar)2. law, Wis. Stat. consent (2013-14).2 appeals the order of reversed The court of the circuit court. 2d Blackman, App 371 Wis. 2016 WI State v.

N.W.2d are Statutes to the Wisconsin subsequent All references indicated. unless otherwise the 2013-14 version presented 2. The issue is whether the conse- quences refusing requested for to submit to a blood test 343.305(3)(ar)2. § misrepre- under Wis. Stat. were misrepre- sented and, to Blackman if so, whether that sentation rendered Blackman's consent to the blood freely voluntarily given coerced, is, draw not under the Fourth Amendment.3 Furthermore, if the court concludes that Blackman's consent to the blood voluntary draw was not consent under the Fourth Amendment, the issue becomes whether the court apply good exception should faith to the exclusion- ary rule and admit the evidence of the blood alcоhol concentration from the blood draw. presented Blackman three petition issues in his for

review: properly suppressed 1. Whether the circuit court Mr. Blackman's warrantless blood unconstitutionally test because he was coerced taking into the test informing when he was read the the accused incorrectly form which told him that he faced a revocation and penalties other if testing, he refused chemical when he was actually only facing possible arrest? properly suppressed Whether the circuit court below Mr. Blackman's blood test where Mr. Blackman was unconstitution- ally taking test, coerced totality into the blood under the circumstances, acquiesced when he to the unlawful assertion they the officer samples take blood in cases like his—in being addition to told that he faced a revocation and other penalties if he refused? 343.305(3)(ar)2. 3. Whether Section is unconstitutional on its face as-applied because it coerces consent to otherwise unconsti- tutional process searches without due of law?

We need not and do not address the second and third presented. issues The second substantially issue is the same as the first issue. Our decision on the dispositive first issue is the instant case. Accordingly, we need not and do not address the third challenging issue constitutionality of Wis. Stat. 343.305(3)(ar)2. forth, we reverse the reasons set 3. For suppression appeals, affirm of the court decision good apply court, and decline of the circuit order exclusionary exception in the instant rule faith case. ordinarily requires

¶ The Fourth Amendment one of the a draw unless for blood a search warrant exceptions requirement exists. Birch to the warrant (2016). In Dakota, 2160, Ct. 2173 136 S. v. North field only exception to the warrant case, the the instant requirement consent to Blackman's at issue is whether voluntarily freely given under was the draw blood legality a war- When Fourth Amendment. of the defen on the consent search is based rantless voluntarily freely and must be dant, that consent ¶ 2d given. Johnson, 16, 299 Wis. 2007 WI v. State Phillips, (citing 218 State v. 675, 729 N.W.2d (1998); Bumper v. N.W.2d Wis. 2d (1968)). Carolina, 543, 548 391 U.S. North draw after blood Blackman submitted consequences stated John Abler Sheriff (who refusing was not Blackman to a test: to submit offense) drunk-driving suspected that his was told of a privilege operating if he refused revoked would be was not This information draw. to a blood submit suspected of a drunk- was not A driver who accurate. hearing prevail driving at a refusal would offense privilege See Wis. operating revoked. would not be his 343.305(9)(a)5.a. § Stat. forth, we conclude reasons set 6. For the convincing prove evi- clear and did not

the State the blood draw consent to Blackman's dence that voluntarily given freely and is, that it was valid, that exclusion- Because Fourth Amendment. under the ary rule's deterrent effect will be served in instant case by suppressing evidence of Blackman's test, blood we apply good exception decline to faith to the exclu- sionary rule. The results of Blackman's blood draw are suppressed. therefore Accordingly,

¶ 7. the cause is remanded to the suppressing circuit court to reinstate its order proceedings evidence and for further not inconsistent with the decision of this court. organized 8. Our decision is as follows:

I. We state the facts.

II. We state the standard of review. analysis proceeds

III. Our as follows: (A) We examine Wis. Stat. 343.305 to deter-

mine whether license revocation is a statu- tory consequence had Blackman refused to submit to a chemical test under Wis. Stat. 343.305(3)(ar)2. We conclude that it is not. (B) We determine whether Blackman's consent

to the blood draw was through obtained mis- representation, rendering his consent co- erced, is, voluntary not and free consent under the Fourth Amendment. We conclude that the consent was obtained through mis- representation and was coerced.

(C) We determine apply whether to good exception

faith exclusionary rule in the instant case. We good conclude that the faith exception does apply not in the instant case.

I—< ¶ purposes suppress 9. For of the motion to evi- dence of Blackman's test, blood the statement of facts dispute. is brief and not in morning ¶ of June At 10 A.M. on 10. about driving in a northeast his car 2013, Blackman was County Highway in the Town of WH direction on County. Taycheedah, Blackman made a Lac Fond du turning, As he was his Lakeview Road. left turn onto travelling bicyclist in a southwest with a car collided County Highway WH. direction on explained that A at the scene 11. witness bicyclist, causing the with the Blackman's car collided "fly up bicyclist and land on air, car, over the in the to bodily great bicyclist roadway." harm, suffered the including to fracture, fractures both a mandibular fracture, a C6 vertebrae fracture, sinus forearms, rib lung contusion, and a sub- laceration, fracture, liver hemorrhaging brain bleed. dural stopped both to and the witness 12. Blackman bicyclist. check on Shortly du Lac collision, Fond after the 13. dispatched

Deputy to the scene. Sheriff John Abler sup- Deputy at the testified Sheriff Abler hearing pression to believe that had reason that he may law traffic a state or local have violated Blackman bicyclist bicyclist yield by failing and that bodily great harm. sustained Deputy that be- also testified Abler Sheriff have he did not test was administered fore the blood the influ- under Blackman was reason to believe testified Sheriff Abler ence of intoxicants. any prosecutor questions response about signs as follows: of intoxication coming from intoxicants

Q: no odor of You noticed him?

A: That's correct.

Q: no speech You noticed slurred A: That is correct.

Q: no eyes? You noticed bloodshot A: Correct.

Q: glassy eyes? You no noticed A: Correct.

Q: glassy eyes? You no noticed A: Correct.

Q: Okay. signs You noticed no with his balance or coordination?

A: I anything. did not notice Q: any impairment You did not notice mental on his part, meaning didn't it seem like he was intoxicated or impaired any way. in you agree? Would agree. A: I

Q: fact, Okay.And, during your in entire contact with Blackman, Mr. you never anything you observed would have attributed to consumption even the you agree? alcohol. Would agree. A: I Despite any signs the absence of

Blackman intoxicated, Sheriff Abler testi- explained fied that he to Blackman that it was "stan- operating procedure department, dard for the when drivers are involved accidents nature, of a serious sample." hospital obtain blood Blackman went to the Although and submitted to a blood test. Blackman rode squad hospital, car to the he in Sheriff Abler's was not considered under arrest. hospital, Deputy

¶ 17. At the Abler read the statutory Informing the Form4 Blackman Accused requested verbatim and that Blackman submit to a revealed an alcohol blood draw. test of his blood concentration of .104. charged multiplе

¶ 18. The State Blackman with driving causing great bodily harm,5 offenses: Reckless injury by injury by vehicle,6 intoxicated use of a use of prohibited alcohol a vehicle with a concentration (PAC),7 operating under the a motor vehicle while (OWI) offense,8 and influence of an intoxicant first operating a motor vehicle a PAC.9 with pretrial suppression hearing,

¶ 19. At a the cir- suppressed the evidence obtained from the cuit court ground draw on the that Blackman's consent was blood consequences misstatements about the obtained consent his refusal to take the test and therefore his coerced. According court, to the circuit the Inform- 343.305(4) ing § the Accused Form under Wis. Stat. by declaring that the refusal to take misstates the law 343.305(3)(ar)2. § under will lead to revocation test operating privilege. The circuit court of a driver's that revocation for a refusal under Wis. concluded 343.305(3)(ar)2. "statutorily § unen- Stat. would be hearing the issues at a refusal are forceable" because 4 343.305(4). The form is set forth verbatim Wis. Stat. § 5 346.62(4). Wis. Stat. § 6 940.25(1)(a). Wis. Stat. § 940.25(1)(b). Wis. Stat. § 346.63(2)(a)1. Stat. Wis. 346.63(2)(a)2. Wis. Stat. § probable "limited to" whether the officer had cause to arrest for an OWI-related offense, whether the officer complied Informing with and form, read the the Accused permit and whether the driver refused to the test. Deputy prob- ¶ 21. Because Sheriff had no able cause to arrest Blackman for an OWI-related offense, the circuit court concluded that "if the statu- tory support scheme does not a revocation that is threatened, this Court finds that coercion has oc- curred." The circuit court ordered the еvidence of the suppressed. blood test appeals

¶ 22. The court of reversed the circuit relying Padley, ruled, court's order. It on State v. 2014 App 65, WI 2d 545, 867, Wis. 849 N.W.2d "impliedly Blackman consented" blood draw driving Wisconsin; that Blackman had a choice to (actual consent) sample submit a or to withdraw con (refusal); freely sent that Blackman chose not to with consent; draw that the Sheriffs misstatement of freely given the statute did not "transform Blackman's implied actual consent under Wisconsin's consent law Blackman, into a coerced submittal." State v. 2016 WI App ¶¶ 69, 2, 5, 10-12, 635, 371 Wis. 2d 886 N.W.2d 94. concurring opinion ap- 23. The in the court of

f peals acknowledged "legitimate that Blackman had a gripe" According about the form read to him. "technically concurrence, even if the form is correct," it "incomplete imprecise, no doubt" but "not inac- curate," and the "threat of real, revocation was even if longer its term effects were in doubt."10

¶ 24. forth, For the reasons set we reverse the appeals, decision of the court of affirm the circuit 10Blackman, 635, (Hagedorn, J., Wis. 2d ¶¶ concurring). order, court's remand cause to the circuit court proceedings for further not inconsistent with the deci sion of this court. II the standard 25. We first address of review. granting denying

"Our review of an order a motion to presents question suppress evidence a of constitutional Tullberg, fact." State v. 2014 WI 359 Wis. 2d question 421, 857 N.W.2d 120. We review a of constitu- two-step inquiry: First, fact tional under we will uphold findings the circuit court's of fact unless those findings clearly Second, are erroneous. we conduct an analysis application independent, de novo principles constitutiоnal to the facts found. State v. ¶ Robinson, 80, 22, 302, WI 2d 786 Wis. N.W.2d 463. interpret apply

¶ 26. We are also asked to implied Interpre § 343.305, the consent law. Wis. Stat. generally ques application a tation and of a statute is independently tion of law that this court decides benefiting appeals, circuit court or court of but from analyses. ¶ Harrison, 5, 37, v. 2015 WI their State DuBose, 372; State v. 2005 WI Wis. 2d 858 N.W.2d ¶ 2d 16, 285 Wis. 699 N.W.2d 582. hH hHI—I presented earlier, the issue 27. As we stated consequences refusing a whether the for to submit to 343.305(3)(ar)2. requested § blood test under Wis. Stat. misrepresented and, ‍‌‌​​​‌‌‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌‌‌​​​‌‍if whether so, were to Blackman misrepresentation rendered Blackman's consent Amendment. the blood draw coerced under Fourth parts question We answer both of this in the affirma- tive.

A statutory provisions. 28. We first consider the f 343.305(2), any person § 29. Under Wis. Stat. operates upon public a who drives or highways motor vehicle given ofWisconsin is "deemed to have consent one or more breath, blood, tests of his or her or requested urine . .. when to do so 343.305] a law enforcement (3)(a) (am) [Wis. § officer under Stat. sub. or or (3)(ar) (b)." required when to do so under sub. case, In the instant Sheriff Abler requested pursu- Blackman to submit to a blood draw 343.305(3)(ar)2., provides § ant to Wis. Stat. which part relevant as follows: person operator

If a is the aof vehicle that is involved great bodily in an accident that causes the death of or any person harm to and the law enforcement officer person any has reason to believe violated law, may request state or local traffic the officer operator provide samples one or more of his or her breath, blоod, person or urine ... to take a .If refuses subdivision, may test under this he or she be arrested (a). added.) par. (Emphasis under ¶ 31. Five observations about Wis. Stat. 343.305(3)(ar)2.: § 343.305(3)(ar)2. provides First, Wis. Stat. may

that if the driver a test, refuses to take he or she be arrested.11 Blackman's blood was drawn for a test. He was not arrested. 11 343.305(3)(ar)2. Upon refusal, a person Wis. Stat. §

may arrested, be and asked to submit to a test under 343.305(3)(a). 343.305(3)(a) A refusal under § will lead to § 343.305(9)(a): penalties" revocation and "other under "If a § 343.305(3)(ar)2. § Second, 33. Wis. Stat. does provide that if the test, not driver refuses to take a operating privilege driver's will be revoked. 343.305(3)(ar)2., Third, § under Wis. Stat. provisions § 343.305, unlike under other an officer may request having a blood draw without a scintilla of suspicion a that the driver is intoxicated. The officer only need have reason to believe that a driver violated a state or local traffic law and was in an accident that great bodily caused harm.12 argues Fourth, if State that Blackman refusing were arrested for to take a test under Wis. Stat. 343.305(3)(ar)2., requested § and if the officer then a 343.305(3)(a), sample § under and if Blackman refused give sample, required to prepare the officer would be operat-

a notice of intent to revoke Blackman's 343.305(9)(a). ing privilege by § court order under Thus argues ultimately the State that revocation is available 343.305(3)(ar)2. 343.305(3)(a) through § §§ under 343.305(9)(a).13 (3)(a),

person refuses to take a test under sub. the law immediately prepare enforcement officer shall a notice of intent to revoke . .. ." discussing case, In arrest in the instant the circuit court . question century exclaimed: "The is arrestеd for what?" legislature In added Wis. Stat. 343.305(3)(ar)2. implied consent law. See 2009 Wis. Act § Act, 163. Prior to this a law enforcement officer was authorized request only a driver submit to a test after the driver had

been arrested for an OWI-related violation or the officer had probable the driver was under the influence. See cause to believe 343.305(3)(a)-(b) (2006-07). Wis. Stat. § 343.305(3)(a) provides Wisconsin Stat. in relevant part: (ar), [UJpon subsequent par. arrest to a refusal under a law may request person provide

enforcement officer one or more 343.305(4) § Fifth, Wis. Stat. sets forth the text that a law enforcement officer shall read to a person specimen requested from whom a test is under (ar). 343.305(3)(a), (am), § Stat. or refer to Wis. We "Informing the text as the Accused" form. read the full text Sheriff Abler of provided in

the form to Blackman as Wis. Stat. 343.305(4) § as follows: 343.305(4) [At

Wis. Stat. Information. the time that a § (3)(a), specimen requested chemical test is under sub. (am), (ar), or the law enforcement officer shall read the following person specimen from whom the test requested]:[14]

You have either been arrested for an offense that driving operating involves or a motor vehicle while both, drugs, you under the influence of alcohol or or or operator are the of a vehicle that was in an involved of, bodily great accident that caused the death harm to, bodily you person, or substantial harm to a or are suspected driving being duty of respect on time with consuming to a commercial motor vehicle after an intoxicating beverage. breath, samples purpose of his or her or urine for blood (2). specified Compliance request type under sub. with a fоr one of

sample subsequent request type does not bar a for a different sample. 343.305(9)(a) provides Wisconsin Stat. part: in relevant (9) (a) Refusal; Hearing, person Notice and Court If a refuses (3)(a), take a test under sub. the law enforcement officer shall immediately revoke, prepare a notice of intent court order (10).... under sub. introductory We include this material to demonstrate legislature requires that the a law enforcement officer to read the full text. We assume that the law enforcement officer did introductory not read this material to Blackman. agency

This law enforcement now wants to test one or breath, samples your more blood or urine to deter- drugs mine the concentration of your alcohol or system. any If your system test shows more alcohol in permits than the law driving, your operating while privilege suspended. you will any be to take If refuse agency that requests, your operating test this privilege you will subject penal- be revoked and will be to other you ties. The test results or the fact that refused testing against you can be used in court. you tests,

If requested you may take all the choose to may take further tests. You take the alternative test agency provides this law enforcement free of charge. may You also have a test conducted a qualified person your your You, at expense. choice however, your arrangements will have to make own for that test. you

If oper- have a commercial driver license or were ating vehicle, a commercial consequences motor other may positive result from results refusing test or from testing, being placed disquali- such as out of service or added.) (Emphasis fied. ¶ 38. The form differs from Wis. Stat. 343.305(3)(ar)(2), applicable § the statute in the instant any case. The form states that if a driver refuses to take 343.305(3)(ar)2., "operating § test under privilege the driver's subject will be revoked" and the driver "will be penalties." only to other The statute if a states 343.305(3)(ar)2. any § driver refuses to take test under may form, therefore, driver be arrested. The does 343.305(3)(ar)2. comport proper § not with advice to 343.305(3)(ar)2. operat- § Blackman under was that his ing privilege request would be revoked if he failed to a hearing. refusal 39. Blackman contends that the text of the applied

form law, to him is erroneous as a matter of misrepresented consequences if he refused a blood the blood test coerced test, and rendered his consent to consent under the Fourth Amendment. agree with Blackman that revocation of 40. We against operating privilege a is unenforceable who has refused a test under Wis. Stat.

driver 343.305(3)(ar)2. requests § a hear- if driver refusal ing. 343.305(9)(a) provides § 41. Wisconsin Stat. penalty refusing post-arrest request for a for a 343.305(3)(a) § ;

chemical test under this is not the refusing penalty a for to take test under Wis. Stat. 343.305(9)(a) 343.305(3)(ar)2. part: Section states (3)(a), person If a a refuses to take test under sub. immediately prepare law enforcement officer shall revoke, by notice of intent to court under order sub. (10), person's operating privilege.15 Following receipt ¶ 42. of notice of State's operating privilege pursu- intent to revoke his or her 343.305(9)(a), may § ant to Wis. Stat. the driver re- quest hearing days "a on the revocation within 10 .... request hearing If no for a is received within the 343.305(10)(a), Under Wis. Stat. the circuit court shall § only revoke the after it driver's license determines that the improperly driver refused to take a test or that the did driver 343.305(10)(a) request hearing. not a provides: refusal Section (a) (9)(d) person If the court determines under sub. that a improperly person request refused to take a test or if the does not hearing days person a within 10 after the has been served with person's operating privilege, the notice of intent to revoke the proceed hearing court shall under this subsection. If no was requested, period begin days the revocation after the shall date hearing requested, period of the refusal. If a was the revocation days immediately shall commence after the date of refusal or upon improper, a final determination that the refusal was which- ever is later. 10-day period, days the revocation commences 30 after 343.305(9)(a) § the notice is issued." Wis. Stat. 4. See 343.305(10)(a). § also Regarding hearing, the refusal Wis. Stat. 343.305(9)(a)5. limits the issues as follows: hearing [The] issues of the are limited to:

a. probable Whether the had cause to officer person believe the driving or operating a motor vehicle while under the of alco- influence hol, a controlled substance or a controlled sub- analog any stance or alcohol, combination of a controlled substance and a controlled substance analog, under any the influence of drug other degreе a which person renders the incapable of safely driving, or under the combined influence any drug degree alcohol and other ato which person renders the incapable safely driving, having a restricted controlled substance his blood, or having prohibited her or a alcohol concentration.... (4).[16] complied

b. Whether the officer with sub. c. person Whether the permit refused to added.) (Emphasis test.. . .

¶ 44. Were Blackman to have had a refusal hear- ing, the issues would have been "limited to" the State (a) proving probable the officer had cause to driving operating believe that the driver was (b) motor vehicle influence"; "under the that the officer complied reading Informing with the Accused form (c) 343.305(4); § set forth in that the driver refused permit prove to the blood test. If the State did not all three issues—and in case, the instant it could not 343.305(4) pertains Wisconsin Stat. reading to § Informing the Accused form the driver. probable Deputy prove had cause that the Sheriff driving operating Blackman was believe that influence of alcohol— under the motor vehicle while privilege operating would not have been Blackman's hearing. revoked at the refusal challenges interpretation The this 45. State application § 343.305. of Wis. Stat. re- that if the driver 46. The State contends 343.305(3)(ar)2., § which, fuses a test under Wis. Stat. previously, offense, OWI-related is not an as we stated arrest, the the driver. On driver the officer can arrest 343.305(3)(a), § re- and the officer can comes under quest to a blood test under Wis. the driver to submit 343.305(3)(a). § If the driver refuses to submit to Stat. 343.305(3)(a), may § the officer issue a blood test under operating person's intent to revoke the a notice of 343.305(9)(a). privilege. § Wis. Stat. acknowledges Deputy The State that Sher- 47. f proceed Blackman, did not

iff did not arrest Abler 343.305(3)(a), § and did not inform under Wis. Stat. step process. Blackman of each But State argues properly Sheriff informed result, is, end that Blackman's Blackman of the operating privilege would be revoked. further contends that Blackman State privilege operating revoked at the

would have had his hearing under refusal because Wis. Stat. 343.305(9)(a)5. only § that a driver who issues 343.305(3)(ar)2. may § refused a test under Wis. Stat. hearing whether he or she was raise at a refusal are Informing form and whether he read the the Accused actually to a chemical test. or she refused submit supports interpretation of The State this 343.305(9)(a)5. by relying legisla- on the Wis. Stat. history and 2009 Act 163. tive of 2005 Wis. Act 413 Wis. According legislature State, did not intend to person sample requested allow a from whom a under 343.305(3)(ar)2. challenge § Wis. probable Stat. cause to arrest for an OWI-related offense at a refusal hearing; legislature only intended that the issues hearing at the refusal would be those listed in 343.305(9)(a)5.b. § and c.: "whether the officer com- plied (4)," person with sub. and "whether the refused to permit argues the test." The State that the failure to probable remove an OWI-related cause determination 343.305(3)(ar)2. hearing from § a refusal under was a drafting error.17 interpretation, 50. An alternative however, adopt,

which we based on the text of the statute, is that legislature's failure to amend Wis. Stat. 343.305(9)(a) § meant that it did not remove the OWI- probable requirement related cause from a refusal hear- ing. clearly provides The text of the statute that when requests pursuant an officer a blood test to Wis. Stat. 343.305(3)(ar)2., § prevail the State cannot at the re- hearing probable prerequisite fusal because cause is a operating to revocation of an license. prevail 51. Because the State cannot at a re- hearing following request

fusal a driver's denial of a for 343.305(3)(ar)2., blood test under Wis. Stat. 17The appeals court of persuaded seemed in the instant legislature case that the drafting committed a error. The court appeals wrote: "The fact that pre Blackman could have vailed at a hearing refusal legislature's due to the failure amend the hearing statute does not transform Black- refusal freely given man's actual consent under implied Wisconsin's consent law into a 635, Blackman, coerced submittal." 371 Wis. 2d added). 12 (emphasis "Informing reading of the text of Sheriffs operating that Blackman's form misstated the Accused" privilege will be revoked.

B Blackman's ¶ determine whether next 52. We through mis- draw was obtained to the blood consent rendering representation, coerced, is, that his consent freely given voluntarily the Fourth under and not Amendment.

¶ under the Fourth draws are searches 53. Blood and Constitution18 to the United States Amendment Constitution.19 11 of the Wisconsin I, Article Section Cali 2173; Schmerher v. 136 S. Ct. at See Birchfield, (1966). searches 767 Warrantless 757, 384 U.S. fornia, subject per to a unlawful, are and are se unreasonable exceptions. "clearly Artic, State v. 2010 delineated" few ¶ 392, 2d 786 N.W.2d 83, 29, 327 Wis. WI 18 the United States Constitu The Amendment tо Fourth provides: tion houses, persons, people right be secure in their

The seizures, effects, against papers, unreasonable searches and and issue, upon violated, shall but and no Warrants shall not be affirmation, cause, by particu- probable supported Oath or searched, persons larly describing place and the or the to be things seized. to be 19 pro I, Constitution Section 11 of the Wisconsin Article vides: houses, persons, right people in their to be secure

The against papers, unreasonable searches and seizures and effects upon violated; shall issue but and no warrant shall not be affirmation, particu- cause, supported by probable oath or things persons larly describing place and the or to be searched to be seized.

¶ case, In the instant the State on relies exception consent to the Fourth Amendment's warrant requirement. prove The State must consent "given by gestures, blood draw in words, fact "voluntary." conduct" and that the Artic, consent was (emphasis added). 392, 2d Further, Wis. satisfy convincing State must that burden clear and Bumper Artic, 32; evidence. 327 Wis. 2d see also (1968).20 Carolina, v. North 391 U.S. given ¶ 55. Whether the consent was is a fact "question finding historical fact." of the circuit upheld contrary great court will "if be it is not weight preponderance Artic, and clear of the evidence." 327 Wis. 2d 30. The circuit court found providing sample defendant consented to a blood but concluded that the consent coerced.

¶ the fact, 56. If State establishes in consent the prove given State must that the consent was volun 20 appears argue that, implied The State to under the law, persons consent given all are deemed to have they operate consent actual to a blood draw when a a vehicle on Wisconsin highway. however, argue, The State does not law enforce authority compel ment officers have the drivers submit to exception a blood or an draw without warrant to the warrant requirement. acknowledges The State that drivers have a "statutory opportunity [their] to withdraw consent." Brief and (State Supplemental Appendix Plaintiff-Appellant-Petitioner of Wisconsin) State, at According of 17. a driver's choice when asked to submit to a "is to affirm blood test submit and the person given, consent the already has or refuse and withdraw consent, and penalties." Supplemental face Brief and (State) Appendix Plaintiff-Appellant-Petitioner of at 10. With drawal of is not in consent an issue the instant case.

361 tarily freely. Bustamonte, 412 U.S. Schneckloth v. " (1973). Voluntary 'an 222, consent must be 218, 225 essentially 'the choice,' and unconstrained ‍‌‌​​​‌‌‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌‌‌​​​‌‍not free express implied.'" product coercion, or of duress or (quoting ¶ Schneckloth, Artic, 412 392, 2d Wis. added)).21 (emphasis 225, at U.S.

¶ is 57. determination of voluntariness totality upon evaluation of the of the sur based an rounding Artic, 392, 327 Wis. 2d 32. circumstances. aspect Misrepresentation important an total ity in the instant case. of circumstances at Court In 136 S. Ct. the Birchfield, inaccurately officer advised the concluded that required law him to to a accused that submit test. the cause warrantless blood The Court remanded in to the state court tо reevaluate the accused's consent light inaccuracy. quoting Phillips, Artic, In State v. (1998), Wis. 2d provided multiple 577 N.W.2d 794 the court including factors, mis non-exclusive representation, to determine whether consent was voluntarily: given

(1) police deception, trickery, used or mis- whether representation dialogue their with the defendant (2) consent; police persuade him to whether the threat- physically "pun- ened intimidated the defendant or deprivation something ished" him the like food or (3) attending sleep; request whether conditions congenial, non-threatening, coop- to search were 21 Carolina, Bumper See v. 391 U.S. also North (1968): rely upon prosecutor "[A] [who] 548-49 seeks to justify search[ ] consent to the of a has the burden lawfulness fact, freely was, voluntarily proving that the consent and given.").

362 (4) erative, opposite; or the how the re- defendant (5) sponded to request search; the to what character- age, istics defendant had as intelligence, to education, physical condition, and prior emotional and (6) experience police; with the and whether police informed the defendant that he could refuse consent. (citing Phillips, Artic, 327 Wis. 2d 198-203) added). (emphasis at Wis. 2d Although pertinent the most consideration misrepresentation in the instant case is whether ren coerced, dered Blackman's consent we also consider Phillips. the other factors described in Artic and See Artic, 327 Wis. 2d

¶ 61. Here are the other considerations. This was nothing Blackman's first OWI offense. There is in the physically record to indicate that was in- Blackman uncooperative. timidated or that Blackman was The Deputy response Sheriff testified that Blackman's to request for a blood draw was that he not did specifically agree disagree give any or or refuse or going indication he was to refuse.22Blackman was informed that he could refuse to take the test. He was prosecutor's question Deputy an Sheriffs suppression swer at hearing regarding whether Blackman was a taking coerced into blood test as follows: Q: you anything [Prosecutor] ... Is there else can tell me give

would us some information as to or whether not Mr. Black- any way man forced or coerced threatened in consent evidentiary an chemical test of his blood? [Deputy No, very Abler] A: Sheriff he In was not. fact he was cooperative throughout procedure. the whole questioning The circuit court's Sheriff about taking Blackman's test is blood as follows: Q: you why you going [The Court] Circuit Did tell him were hospital why your should ride in car? he incorrectly operating privilege would his informed that request a draw. if he for blood revoked refused be address the effect 62. We therefore "inaccuracy" "misrepresentation" Deputy Sheriffs validity consequences of consent on the Blackman's of the Fourth Amendment. under con- Blackman's We conclude that because by misrepresentation product State, was the of sent totality circumstances, the State under the proving Blackman's carried has not its burden freely voluntarily given under was consent prove Black- Amendment. The State did not Fourth essentially of "an free and man's consent was the result Schneсkloth, 412 U.S. at 225. unconstrained choice." Deputy case, Abler In the Sheriff instant Informing to read the directed statute to The of the form form Blackman. text Accused Deputy was re- Blackman that Sheriff advised sample questing test of Blackman's blood. to inaccurately penalty for Blackman of the form advised inaccurately advised The text of the form refusal. Well, [Deputy Abler] I'm sure I him that. I know A: Sheriff told procedure explained is a serious I our normal when there samples. like this that we do take blood accident Q: going Okay. hospital to the a blood So he he was for knew sample? Yes, he did. A: Q: say anything you agreeing about to have a blood Did he you you guys sample got took off and when in the car and before go hospital? agreed, specifically know but he did not

A: I don't that he any going disagree give indication or refuse or me that he was refuse. operating privilege

Blackman that his would be re- penalty apply voked. This did not to Blackman. ¶ 65. The Sheriff advised Blackman that Department's operating procedure the standard was to take blood under the in circumstances the instant case. Although Deputy the Sheriff did not tell Blackman performed that a blood draw would be without his consent, Blackman could have drawn this inference Department's policy from the statement of the and could have concluded that he had no real choice but to take a blood test. Considering totality

¶ 66. the of the circum- stances, we conclude that the State failed to meet its prove voluntarily freely burden Blackman and consented to the bloоd under draw the Fourth Amend- things ment. All considered, Blackman's consent the voluntary free, blood draw was not and was and not an product choice; unconstrained it the coercion, was express implied, or and therefore was invalid under the Fourth Amendment. through

¶ Thus, the evidence obtained the blood draw the result anof unlawful search.

C Ordinarily, through ¶ 68. evidence obtained an exclusionary unlawful search is excluded at trial. The generally rule deliberate, reckless, serves to "deter or grossly negligent conduct, or in some circumstances systemic recurring negligence." Herring v. or United (2009). States, U.S. 150-51 In v. Dear State born, 2010 WI 327 Wis. 2d 252, 786 N.W.2d 97, the court stated which the circumstance under exclusionary applies rule as follows: rule, must exclusionary police conduct trigger

To meaning- can that exclusion sufficiently deliberate be de- it, sufficiently culpable that such fully deter system. justice price paid is worth the terrence cases, exclusionary rule serves in our As laid out reckless, negligent con- deliberate, grossly or deter recurring systemic or duct, in some circumstances negligence. the results of blood The asks that State in evidence be admitted the instant case

draw in good faith. Abler acted Sheriff because good excep applied faith have 70. Courts exclusionary only rule in deviated from the tion and types in limited circumstances. of cases and few generally applied exception good when a been has faith objectively reasonably has enforcement officer law (whether binding or law statute23 relied on settled subsequently judicial precedent24) оverruled that was subsequently invalidated25 or that was or a warrant 23 (1987). 340, Krull, 480 U.S. 349-50 Illinois v. 24 (2011). 229, States, 241 564 U.S. Davis v. United 25 (1995); 1, 14 States v. Evans, U.S. United v. 514 Arizona (1984). 897, Leon, U.S. I, 11 of interprets Article Section

Although the court often interpreta conformity with the Constitution the Wisconsin Eason, 98, Amendment, WI in State v. the Fourth tion of adopted a the court 245 Wis. 2d 629 N.W.2d I, 11 of relying rule on Article Section "Leon-plus" good faith this The court concluded the Wisconsin Constitution. provision than the Fourth "guarantees protection more ad good exception faith as provides Amendment under the opted in Leon:" exception applies good the State has faith where

We hold that shown, reasonably upon objectively, police relied that the officers independent magistrate. The burden warrant issued an a obtaining process used in upon to also show that the the State resulting that was based on erroneous information police negligence from isolated attenuated from the arrest.26 parties

¶ 71. The cite case, no and we have found applying good exception none, faith to the exclu- sionary rule to a situation in which a law enforcement requirements gave officer followed the of a statute and upon an accused inaccurate information which the accused's coerced consent was based. argues 72. The State Sheriff Department's procedure

Abler's conduct and the com- plied with the statute; that a law enforcement officer expected question legislative cannot be a enactment Department procedure; exclusionary or that the rule is legislature; not intended to deter the and that exclusionary rule's deterrent effect on law enforcement by suppressing conduct would not be served the evi- dence of the blood draw in the instant case. argument persuasive. 73. The State's is not error in the instant case is not an error attributable solely legislature. Nor does the instant case present nonrecurring an isolated or error in the crimi- justice system. potential nal It evinces of a "recur- ring systemic" widespread affecting error, error, rights of an accused. The accused has a constitutional right under the Fourth Amendment, unless another exception requirement to the warrant exists, for law enforcement officers to obtain his or her free and volun- tary consent to a blood draw or to obtain a search significant investigation search warrant included a and a review police knowledgeable either a officer trained and in the requirements probable suspicion, cause and reasonable added.) knowledgeable government attorney. (Emphasis States, Herring 135, 137, v. United 555 U.S. 147-48 (2009). the evidence in the for the blood draw. Unless warrant suppressed, enforcement officers law instant case is Informing the read the continue to across the state will situation as in the same form to accuseds Accused pro- providing information to correct Blackman without voluntary consent. for the accused's vide the basis exclusionary ¶ deterrent effect will The rule's 74. sup- in the instant case is if the evidence be served pressed. good exception application

¶ faith 75. Thе appropriate exclusionary not in the rule is Accordingly, conclude that the evi- instant case. we suppressed. blood test should be dence of Blackman's County ¶ 76. The dissent contends Washburn 243, Smith, 23, 65, 2d 746 N.W.2d v. 2008 WI 308 Wis. holding misrepresentation in that the contravenes our requires suppression Informing the Accused Form exception good and that the faith the evidence exclusionary apply in The rule does not the instant case. inapposite. dissent errs. Smith is Smith, case, unlike in the instant In Informing Form information in the the Accused was challenged incorrectly applying not as accused. ¶¶ Smith, 65, 77. 308 Wis. 2d alleged misrepresentation in Smith 78. The gave enforcement officer additional was that law from information that was incorrect to accused test) (not requested. whom a test a blood breath ¶ ¶ did not Smith, 308 Wis. 2d 78. The accused hearing. test and faced a refusal take the breath accused, held a Louisiana driver's who hearing deputy argued that the license, at the refusal penalties gave about the him incorrect information his refusal was under Louisiana law and that therefore justified. The court was unconvinced the accused's argument about Louisiana law. The court held that the Informing accurately the Accused Form stated Wiscon- deputy sin law and that neither the nor the accused deputy stating that the believed Louisiana law. ¶¶ Smith, 65, 81, 308 Wis. 2d alleged ¶ deputy 80. The accused also gave him an additional item of misinformation. Be- finding cause no factual had been made about this allegation, purposes the court assumed for of its deci- deputy sion that the misinformed the accusеd that he hearing days. would be entitled to a refusal within 10 Smith, 308 Wis. 2d 84. The correct information request hearing was that the accused could a refusal days. within 10 applicable

¶ 81. Under the time, law at that in prevail, order to the accused the Smith case had the prima showing depu- a burden make facie that the ty's timing erroneous statement about the of the re- hearing fusal contributed to his refusal to submit Smith, the breath test. 308 Wis. 2d showing. accused failed to make this essential Accord- ingly, improperly the court concluded that the accused Implied refused submit to the breath test under the ¶¶ Smith, Consent Law. Wis. 2d 87-89. ¶ 82. The Smith court did not address the driv- rights regarding er's Fourth Amendment breath concept voluntary test, the under the blood consent exclusionary Amendment, Fourth or the rule. These issues were not raised in the Smith decision. The pertinent Smith case is not to the instant case.

* * * * forth, 83. For the conclude that reasons set we prove by convincing the State did not clear and evi- dence that Blackman's consent to the blood draw was voluntarily freely given valid, is, that it was Amendment. under the Fourth exclusionary ¶ 84. Because rule's deterrent by suppressing effect will be served the evidence of apply good test, Blackman's blood we decline to exception exclusionary faith rule. The results of suppressed. Blackman's blood draw are therefore Accordingly, 85. the cause is remanded to the f suppressing circuit court to reinstate the order proceedings evidence and for further not inconsistent with the decision this court.

By appeals the Court.—The decision of the court of is reversed аnd the cause remanded. (con- ZIEGLER, ANNETTE KINGSLAND J.

f curring'). join opinion excep- I the court's with a few join tions and a I most, provide few caveats. Because am able to opinion, all, but not of the court's I write to clarity opinion. further of that compelled clarify outset, 87. At the I am "misrepresentation" what was and was not the in this "misrepresentation" being Here, case. the term used reading required in the context of law enforcement completely accurately form but the standard form that inaccurately was read verbatim stated the law. This by using court has framed that misstatement of law phrase "misrepresentation." clear, Tobe there are a may ap- number of occasions where law enforcement propriately "misrepresentations" use in the context of investigation e.g., See, an or otherwise. Lewis v. United (1966) ("Indeed, States, 385 U.S. 208-09 it has long acknowledged by been the decisions of this Court many types in that, the detection of crime, decoys Government is entitled to use and to conceal the (citations identity omitted)); agents." of its United (7th 1998) Peters, v. States 153 F.3d Cir. ("Police (Easterbrook, concurring) engage J., in deceit suspects in all the time order to induce to reveal Deception plays important legiti- . . . an evidence. enforcement."). mate role in law "misrepresen- In issue, the case at the word spoke tation" is used not because law enforcement coercion, rather, an effort to induce but is used in the language literal sense that misrepresented on the form read actually Thus, what the law was. it is misrepre- not law enfоrcement action that caused the inaccuracy prop- sentation, erly form, but rather the inaccurately verbatim, read informed the phrase "misrep- defendant of the state of the law. The opinion resentation" is used in the the use of that but typical term should not be confused with more involving misrepresentations by scenario made law opinion sug- enforcement.1 The gest should not read to be any by misrepresentation that law enforcement automatically subsequent would render a action to be automatically not influence deemed coerced. One does the other. clarify

¶ Second, I further write to that the 89. opinion not read as inconsistent with court's should be theory my view of the constitutional behind Wiscon- e.g., implied Howes, See, v. sin's consent law. State ¶¶ 52-87, 468, 2d 893 N.W.2d 18, 2017 WI 373 Wis. 1 by misrepresentations When it comes to law enforce ment, proposition misrepresentation the that is or is not reality permissible oversimplifies the of when or deemed be misrepresentation by approved has been if a by law enforcement See, States, 206, e.g., U.S. the courts. Lewis v. United 385 (7th 445, (1966); Peters, 464 208-09 United States v. 153 F.3d 1998) (Easterbrook, J., concurring). Cir. (Gableman, concurring). sensibly J., The court opine does not on this matter in this case and I write to alert the reader this decision should not be interpreted doing as so. join part opinion Third, 90. I do not might

which discusses the inferences that Blackman have drawn from one of Abler's in statements majority op., Specifically, Deputy this case. See department policy Abler's reference to to draw blood might thought and what Blackman have that to mean disputed parties. is a fact between the Resolution of meaning necessary of the statement is not disposition of this case. If we were this, to review inquiry subjective would not be as as the court's might e.g., Jimeno, discussion seem. Cf., Florida v. (1991) ("The measuring 248, U.S. standard for scope suspect's of a consent under the Fourth Amend of'objective' ment is that reasonableness—what would typical person reasonable have understood exchange suspect?"). between the officer and the good exception applies Fourth, faith specific, narrowly-defined e.g., See, circumstances. Dearborn, State v. 84, 2010 WI 327 Wis. 2d ("[Ujnder holding today, 786 N.W.2d 97 our the exclu sionary inappropriate only rule when the officer reasonably precedent. relies on clear and settled Our holding majority does not affect the vast of cases where Supreme neither this court nor the United States spoken specificity particular Court have with in a fact situation."); States, Davis v. United 564 U.S. (2011) cases). (listing my 238-39 In view, the facts of this case do not constitute one of the rare occasions good exception applies. where the faith This is not a example, case, for where law enforcement followed the law in time, existence at the where the error will not given law, state of the in the future the current occur already deterred because where future action Instead, the law enforcement in the law. the correction existing inaccurately explained law, and this officer might that to occur in the future such error continue by suppression the the effect will be served deterrent not the sole consid deterrent effect is evidence. While join under I the court's discussion eration, standing am able "[r]eal although a deterrent value is 'necessary it is not 'a exclusion,'... for condition analysis must also account for one. The sufficient' generated the rule." Id. at costs' 'substantial social omitted) (citation Michigan, (quoting Hudson v. (2006)). reached this 586, 596 The result 547 U.S. approach. with this case is not inconsistent agree I with the court that Fifth, while given in the instant case was to Blackman information necessarily join I not law, under the do inaccurate given to inference should that certain advice be court's 343.305(3)(ar)2. We need under Stat. Blackman Wis. go not that far. respectfully foregoing reasons, I 93. For

concur. Justice I authorized to state am joins opinion. this MICHAEL J. GABLEMAN ROGGENSACK, C.J. DRAKE 95. PATIENCE repeatedly legislature (dissenting). has en- Wisconsin's carnage that drunk drivers laws to lessen acted Today, roads. those who use Wisconsin inflict on legislation majority opinion that holds those overturns prohibited re- a alcohol concentration drive with who by violating they injuries sponsible cause for the readily appar- not their intoxication is traffic law when ent. majority opinion 96. The errs for three rea-

sons: Adam M. Blackman's consent to blood tests was by majority not obtained law enforcement coercion; the opinion misinterprets the relevant statutes; Deputy good Sheriff Abler acted with a faith belief that doing required. he was what the statutes Stated more (1) fully: reading Informing Abler's the Accused form to Adam Blackman was not sufficient to overcome Blackman's free will such that the reaffirma- evidentiary tion of his consent to tests was coerced (2) voluntary; controlling rather than statutes, correctly interpreted, comport deputy's with the read- ing Informing the Accused form Blackman; to (3) Deputy good Abler, in faith, read what he believed required. Accordingly, the statutes I would affirm the appeals, respectfully court of and I dissent from the majority opinion.

I. BACKGROUND majority opinion ably 97. The sets forth most background controversy, the factual of this Iso shall only necessary attuning relate those facts the reader my discussion that follows. approximately 98. At morning 10:00 in the f driving while his automobile, Blackman made a left- county highway hand turn from intersecting a onto an doing, path In street. so oncoming he crossed the of an bicyclist, right who collided with the side of Black- causing great bodily bicyclist. man's car harm to the personnel attending 99. While medical were injured bicyclist, Deputy spoke Sheriff Abler with Blackman, who had remained at the scene of the accident. Abler testified that he believed that Black- yielding man right-of- violated a traffic law not way bicyclist when he made his left-hand turn. bodily great harm that the 100. Because of provide bicyclist Blackman to suffered, Abler asked agreed sample. and was taken to a Blackman blood hospital, hospital draw. At the Abler for the blood local Informing the Accused form. Wis- read Blackman 343.305(4) § that it read before directs be Stat. consin evidentiary on a test is undertaken based chemical a great alleged that causes traffic ‍‌‌​​​‌‌‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌‌‌​​​‌‍violation driver's person, bodily i.e., a of Wis. to another violation harm 343.305(3)(ar)2. Stat. Informing form describеs the Accused permit may refusing penalties to follow from

civil questions following were asked of test. The a chemical deputy with Blackman about his interactions evidentiary response test in to the Blackman's consent Informing Accused form. to the to an recall, Mr. Blackman consent Q you did Do blood? evidentiary chemical test of his Yes, A he did. recall, you did Mr. Blackman

Q Okay.At that time do you the nature of any questions for about have form? No, any questions. I recall

A don't read, Black- was Mr. Q the time that was Okay. At any way? in man confined in just sitting No, that we were than the fact A other hospital. room at the a you can tell me anything else that Q Okay. there Is as to whether give us some information that would or coerced or was forced not Mr. Blackman evidentiary way consent to an any in to threatened test of his blood? chemical No, fact, very A In cooperative he was not. he was

throughout procedure. the whole you why you THE COURT: Did tell him were going why your hospital to the he should ride in car?

THE Well I'm I told him WITNESS: sure that. I I explained procedure know our normal is when there is a serious accident like this that we do take blood samples. Okay.

THE COURT: he he was going So knew hospital sample? blood for a Yes, THE WITNESS: he did.

THE say anything you COURT: Did he about agreeing you sample got to have blood and when you guys go car and off before took hospital?

THE I specifically WITNESS: don't know that he agreed, disagree but not give he did or refuse or me any he going indication that was to refuse. years age

¶ Blackman, 102. who was of on the requested give sample, date he was to a blood reaf- firmed his and consent his blood drawn.1 was The tests showed he had a blood .104 alcohol concentration. He charged was with several crimes that related to his great unlawful blood alcohol concentration and the bodily bicyclist harm the suffered.

¶ suppress 103. Blackman moved to the results claiming his test, blood that his consent was not deputy valid because the misinformed him that he 1The record reflects that Adam Blackman was born No 23, vember his sample and blood was drawn on June 2013, the date of offenses. penalty if he license revocation the civil faced only actually for an arrest faced refused, when he argued refusing if the He also draw. the blood applied implied him, and if his consent law consent 343.305(3)(ar)2. § unconsti- was valid, Wis. Stat. was facially applied to him. tutional, as both did concluded that Abler The circuit court 104. potential for "because misinform Blackman not through ultimately section available was revocation (3)(a) However, the circuit if the refusal continued." suppress granted motion to because Blackman's court he coerced when consent was Blackman's it concluded permit draw his a blood if he refused to told that was privileges operating The court based revoked. would be for that revocation its conclusion "coercion" on this 343.305(3)(ar)2. be § would under Wis. Stat. refusal "statutorily concluded The court unenforceable." 343.305(9)(a)5.a. required the State Wis. Stat. probable arrest Black- prove cause to had that Abler driving offense when while intoxicated for a man support probable at the deputy cause no facts to had sample taken. was time the blood appeals It con- reversed. The court of correctly that if he informed that Blackman cluded by driving provided on he first the consent withdrew roadways refused to submit the Wisconsin privileges operating would requested draw, his blood App Blackman, 2016 WI State v. revoked. have been 2d 886 N.W.2d 1, 371 Wis. disagrees majority opinion with the ¶ 106. The suppresses appeals of Black- the results court test. man's blood

II. DISCUSSION A. Standard of Review 107. Whether Blackman's reaffirmation of his voluntarily given, consent to search was in contrast to being ques obtained law enforcement coercion, is a Phillips, tion of constitutional fact. State v. 218 Wis. 2d (1998). 180, apply 195-96, 577 N.W.2d 794 We two-step process to make this determination. Id. at 191. Historical facts relevant to consent are affirmed clearly Voluntary unless erroneous. Id. at 190. consent "given is consent in the absence of duress coercion, or express implied." (citing either Id. at 197 Schneck (1973)). loth Bustamonte, v. 412 U.S. 218, 248-49 Accordingly, question voluntariness is a of law that we considering totality decide after of the circum (citing stances. Id. at 198 Schneckloth, 412 U.S. at 226)). totality of circumstances include "both the surrounding circumstances the consent and the char (citing acteristics of the Xiong, defendant." Id. State v. (Ct. 178 Wis. 2d App. 525, 534-36, 504 N.W.2d 428 1993)). statutory interpre 108. This case also involves application. questions

tation and These are of law that independently we Hanson, determine. State v. 2012 WI ¶ 14, 338 Wis. 2d 243, 808 N.W.2d 390. finally, 109. And whether Sheriff Abler Informing

read the Accused form to Blackman in good exclusionary faith such inappli that the rule is cable to the results of Blackman's blood tests is also a question of Dearborn, law. State v. ¶84, 2010 WI 327 Wis. 2d 786 N.W.2d 97. Voluntary

B. Coercive majority opinion that concludes 110. response given re- in to Abler's consent Blackman's voluntarily given quest because tests was not for blood Informing reading by the the Abler's it was coerced form relates Blackman. The form to Accused Blackman's revocation, when result refusal will driving privileges revoked if he have been would not evidentiary sample.2 provide In so an had refused totally ignores opinion majority concluding, play principles a court legal into when that come has been free will a defendant's whether assesses purposes for conduct law enforcement overcome Amendment. Fourth principles 1. General a search was State asserts 111. When consent was determine whether consensual, must we Phillips, voluntarily given. 23. The 2d 218 Wis. consent "whether a search is for voluntariness test given coercive, of actual in the 'absence to search designed practices police to overcome improper Xiong, 2d at 532 178 Wis. of a defendant.'" resistance Clappes, 245, 401 2d (quoting Wis. 136 State v. (1987)). police acquiescence Mere N.W.2d display police war- authority, a search when such as entry permits his into he to a defendant rant that Black- context in the coerced consent home, is not a consider Rather, we herein. occurred contends man lawon that was based warrant without a done search privilege operating his incorrectly informed that "He was draw." request for a blood if he refused revoked would be Majority op., ¶ request

enforcement's sponse to search and Blackman's re- request. Schneckloth, to that at U.S. ¶ 112. Whether defendant's will was overborne voluntary such that his consent to search was not requires us to examine the details of the interactions between law enforcement and the defendant and the characteristics of Id. at the defendant. 226. There is no one factor that will determine whether consent was Supreme coerced. As the United States Court has explained, problem reconciling recognized "The legitimacy requirement of consent searches with the they any aspect be free from of official coercion any cannot be resolved infallible touchstone." Id. at 229. regard In to the interaction between law

enforcement and the we defendant, examine whether physically law enforcement "threatened, intimidated, punished Phillips, or defendant," 218 Wis. 2d at 199; whether the interactions between law enforce- cooperative, ment and defendant were under non- threatening conditions, id. at 200; whether the consent interrogation, was the result of custodial which the Supreme "inherently Court concluded was coercive" in (1966). v. Arizona, Miranda 384 Schneckloth, U.S. 436 412 at U.S. relating

¶ 114. Some factors to the defendant youth, Haley Ohio, are: (1948); 596, his v. 332 U.S. 599 Payne thereof, education or lack Arkansas, v. (1958); intelligence mentally 560, 356 U.S. compromised, 562 low or Alabama, see Fikes v. 191, 352 U.S. 196 (1957); questioning that occurred while defendant was custody, Michels, State v. 141 Wis. 2d (Ct. 1987). N.W.2d 311 App.

¶ 115. In a it consent-search, is the State's bur- den voluntariness; however, to show the State does not have thе burden to show that the defendant's consent Phillips, "informed consent." 218 Wis. 2d at 203 532). (citing Xiong, 178 Wis. 2d at otherwise, Stated obligation prove the State has no that the defendant knowingly intelligently, consented to the search permit that the defendant knew he could refuse to requested Rodgers, search. State v. 2d 102, Wis. (1984) (citing 109-10, Schneckloth, 349 N.W.2d 453 229-32). 412 U.S. at obligation prove

¶ 116. Furthermore, right knowing a defendant's waiver of a trial is intelligent vastly different from the test for assess- ing sufficiency the constitutional of consent to search. (1990). Rodriguez, Illinois v. 497 U.S. theAs Supreme explained, United States Court has "what is generally many demanded of the factual determina- regularly by agents tions that must be made government—whether magistrate issuing the a war- police conducting rant, ... or the officer a search or exceptions seizure under one of the to the warrant requirement—is they always correct, not that be but they always be reasonable." Id. at 185.

2. Blackman's consent nothing ¶ 117. There is in the record that shows Abler coerced Blackman. No threats were made to obtain his consent to the blood draw. He was not punished by denying periods. food, drink or rest No improper police designed coercive, conduct to overcome happened prior All Blackman's free will occurred. Informing reading to the blood draw was Abler's the Accused form to Blackman. regard years In Blackman, to he was 20

age nothing when the accident occurred. There is the record that indicate he did have the would not freely capacity consent, consent, or withdraw for willingly hospital blood draw. He went and permitted testing. Deputy blood to be drawn for Abler very cooperative throughout said that "he was procedure." whole explain below, 119. As I will I have concluded deputy properly Informing

that the read the the Ac- 343.305(4) requires. form, cused which Wis. Stat. However, if I were form even to assume that the should driving privi- not have been read Blackman's because leges if could not have been revoked he refused to permit obliga- test, the blood law enforcement had no provide Blackman. tion to additional information to Constitutionally may sufficient consent be obtained knowingly intelligently when the consent is not given. Rodgers, Schneckloth, 412 229-32; U.S. at Xiong, Reading 109-10; Wis. 2d at 178 Wis. 2d at 532. simply gave say the form Blackman a choice: he could yes say or he could no. reading Informing Furthermore, if

Accused form to Blackman coerced his consent to a reading Informing draw, blood the Accused form every coerces driver to whom it is read. All have the say yes say Requiring same choice: no. that accu- consequences refusing permit rate a blood draw are known to the defendant before his consent is held voluntary contrary Rogers Schneckloth, to be is Xiong. Knowledge consequences of refusal scope outside the of Fourth Amendment consent to protections. search example fallacy 121. A common shows the of majority opinion's

the conclusion that con- Blackman's belongs sent was coerced. Let's assume that a driver religious prohibits blood-letting. a sect that He refuses give sample Informing a blood after the the Accused

382 form is read to him. The form is the same for all to yet, provide read; whom it is if a driver refuses to a sample sincerely religious based on a belief, blood held likely it is that his license will not be revoked. See (1966). Schmerber v. California, 757, 384 U.S. provide Therefore, the form will not an accurate de- scription consequences refusing provide the requested sample blood for such a driver. provide

¶ 122. No coercion forced Blackman to sample. requires police blood Coercion unlawful con- designed duct to override the free will of a defendant. nothing suggest There is police in this record to unlawful nothing conduct; and there is in this record to suggest 20-year-old freely that this man did not and voluntarily consent to the blood test. Statutory Interpretation

C. Proper interpretations ¶ 123. of Wis. Stat. deputy § 343.305 its subsections show that the correctly by legisla- followed directives established the reading Informing ture, which included the the Ac- 343.305(4), upon § form, cused refusal, a refusal 343.305(9)(c). hearing followed, would have principles 1. General Statutory interpretation begins ¶ 124. ‍‌‌​​​‌‌‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌‌‌​​​‌‍with the language meanings If statute. of the words legislature plain, ordinarily stop chosen are we inquiry. rel v. State ex Kalal Circuit Court Dane for Cty., ¶ 58, 633, 2004 WI 2d Wis. N.W.2d meaning may only 110. "Plain be ascertained not from employed statute, the words but also from Corp. Vandenberg, context." Prince v. 2016 WI ¶ 17, 369 Wis. 2d 882 N.W.2d 371. Interpreting requires in 125. a statute context f interpret statutory language in that we do not isola- surrounding closely- in to tion, but rather relation statutory interpret provisions. Here, I related Id. they § of Wis. Stat. 343.305 as relate to subsections statutory scheme of each other within Wisconsin's implied consent.3

2. Relevаnt Statutes 343.305(3)(ar)2., §§ 126. Wisconsin Stat. 343.305(9) 343.305(4), implicated are Black- arguments majority opinion per- man's that the finds Accordingly, interpret provisions suasive.4 I those implied they law, the context of Wisconsin's consent as relate to each other. operator A 127. vehicle whom a law enforce-

ment officer has reason to believe committed viola- great bodily that caused harm tion of a traffic law may charged with a violation of Wis. another be 343.305(3)(ar)2. alleged § An Stat. violation of 343.305(3)(ar)2. permits § a law enforcement officer request operator provide the vehicle one or more 343.305(3)(ar)2. samples § breath, blood or urine. dispute interpretation There is no that that is what plainly provides. the statute regard request samples ¶ In to a for to test 343.305(4) concentration, for alcohol Wis. Stat. states part: in relevant "purpose implied I law note that behind consent driving 'by facilitating] gathering drunk

is to combat against Piddington, drunk drivers.'" State v. 2001 WI evidence 24, (quoting 241 Wis. 2d 623 N.W.2d 528 State v. (1980)). Neitzel, 191, 203, 95 Wis. 2d 289 N.W.2d 828 Majority op., ¶¶ At the time specimen that a chemical test requested is (3)(a), (am), (ar), under sub. the law enforcement following officer shall read the person from specimen whom the test requested: operator You. . . are the of a vehicle that was in of, involved an accident that caused great the death to, bodily harm bodily or substantial harm per- to a son .... agency

This law enforcement now wants to test samples your breath, one or more blood or urine .... you If any refuse to take test agency requests, that this your operating privilege you will be revoked and will subject be to penalties. other Informing The form, the Accused which is read before samples testing repeats for secured, chemical are 343.305(4). statutory plain § admonitions of The word- (4) ing requires of subsec. the officer to read statutory provisions. dispute There is no that statutory provisions are contained within the Inform- ing the Accused form. part company majority 129. Where I with the

opinion interpretation in its of Wis. Stat. 343.305(9). § It is not until there is a a refusal and 343.305(9) timely request hearing § for a refusal play. comes into Neither of these events occurred in the pending given arguments However, matter. made majority opinion's interpretation to and the us provisions (9), I, too, various of subsec. address 343.305(9). § 343.305(9)(c) begin § I with Wis. Stat. be- (9) paragraph

cause it is the in subsec. that addresses by person sample refusal a from whom of a submission (3)(ar)2. testing requested for under subd. Para- (9)(c) graph provides: the circuit or

If law enforcement officer informs municipal person that a has refused to submit to court (3)(a), (am), (ar), or the court shall be a test under sub any hearing to determine if prepared requested to hold proper. scope hearing shall the refusal was (a)5. (am)5. par. in be limited to the issues outlined any hearing under applies 967.055 this Section subsection. operator is not a 131. When a vehicle who operator request refuses a

commercial motor vehicle testing suspected sample on a submit a for based 343.305(3)(ar)2., any requested of Wis. Stat. violation hearing encompass more issues than those cannot (9)(a)5. nothing in However, identified in subd. para. there is (9)(c) requires all three issues identifiеd (9)(a)5. Rather, tried. the issues that must subd. be (4), complied sub. be tried are whether officer with (9)(a)5.b., para. person's and whether the refusal subd. inability physical was due to a to submit to requested test of a cause unrelated to the use because (9)(a)5.c. prohibited para. substance, of a subd. 343.305(9)(c) § 132. Stat. states that Wisconsin f "scope hearing limited to the issues shall be (a)5." say par. outlined in It does not that the issues (a)5. para. in outlined shall be tried. in a claim or 133. When issues be considered type "limited," of are no unlisted issues can be review every

considered, enumerated issue identified in but example, in the list does not have to be tried. For certiorari review the issues are limited to:

(1) kept jurisdiction; whether the within its board (2) law; proceeded theory whether it on a correct (3) arbitrary, oppressive, whether its action was represented judg- its will and not its unreasonable (4) ment; whether the might reasonably board make the question order or determination in based on the evidence.

FAS, Lake, LLC v. Town Bass 2007 WI 8, 301 Wis. 2d 733 N.W.2d However, 287. there is no try prevail; simply need to all four in issues order to proving proceed that the board did not on a correct theory of law is sufficient. Id. though 134. Furthermore, even Wis. Stat. 343.305(9)(a) permits

§ 5.a. consideration of whether probable person the officer had cause to believe the operating prohibited a motor vehicle with a alco- (9)(c) nothing para. requires concentration, hol (9)(a)5. plain reading issue be A tried. of subd. in the 343.305(3)(ar)2. § context of Wis. Stat. demonstrates requiring litigate the State to whether the officer probable impaired had сause to believe the driver was prohibited or had a alcohol concentration would make 343.305(3)(ar)2. § no sense because is based on the great violation of a traffic law that causes death or bodily injury, apparent not on intoxication. Application of statutes to Blackman Abler had reason to believe that by failing Adam Blackman violated a traffic law yield right-of-way oncoming traffic, which great bodily Accordingly, caused harm to another. alleged Blackman was to have violated Wis. Stat. 343.305(3)(ar)2. question bicy- There is no that the great bodily question clist suffered harm and no that it 343.305(3)(ar)2. pursuant § that Abler re- quested that Blackman to a submit blood test. It is also beyond dispute deputy complied with Wis. 343.305(4) by reading Informing § Stat. Blackman the the Accused form. statutory though interpretation Even

arising present case, if a refusal is not in this it from 343.305(9)(c) § were, I would conclude that Wis. Stat. deputy require of whether the does not issue probable impaired cause to believe Blackman was had proceeded tried Blackman was must be because 343.305(3)(ar)2. against pursuant § There to Wis. Stat. nothing if in the record to show that Blackman had refused, such refusal would be excused because of an inability Accordingly, tests. if he to submit blood driving privileges refused, to have his would have were revoked. been legislature policy

¶ 137. The made a choice to operator influ- test whether a vehicle's was under the intoxicating ence when accidents cause substances great bodily harm. It did so intoxica- death or because always readily apparent at tion is not thе scene of accident, serious but can nevertheless have contrib- injuries. policy uted to loss of life and serious That 343.305(3)(ar)2. choice is Wis. Stat. prohib- 138. Blackman's blood test showed a

f legal .104, ited alcohol concentration of well above the absolutely prohibited adult, limit of .08 for an and for underage any a man to drink alcohol on the who was date of the accident.

D. Faith Good ¶ 139. Even if I were to that Blackman's assume agree consent was coerced were to with the ma- jority statutory opinion's interpretation, I nevertheless good exception would conclude that faith exclusionary applies; therefore, rule I would not suppress the results of the blood test. majority outset, 140. At the I note that

opinion incorrectly exclusionary frames the rule aas remedy liberally. apply courts Without citation, the majority opinion "Ordinarily, states: evidence obtained through an search unlawful is excluded at trial."5 This contrary is to well-established law when innocent police objection conduct foundation from which ato search arises. Supreme 141. The Court has concluded that

I [exclusionary] 'costly upon "the rule's toll' truth- seeking objectives presents and law enforcement high urging application obstacle for those of the rule." Pennsylvania Scott, 357, Bd. Probation 524 v. U.S. (1998) (quoting Payner, 364-65 United States v. 447 (1980)). Supreme repeat 727, U.S. 734 Court has " edly [suppression stated that of evidence" should be impulse." the "last not our resort, first Hudson v. Michigan, (2006); 586, 547 591 see U.S. also Utah v. (2016); Herring 2056, 136 S. 2061 Strieff, Ct. v. United (2009). States, 135, 555 U.S. 140 We have used similar describing exclusionary admonitions when rule. (reasoning, Dearborn, ¶ 252, 327 Wis. 2d 35 "exclusion resort"). [of evidence] is the last purpose 142. "The rule's sole ... is to deter future Fourth Amendment violations." Davis v. United (2011). suppres States, 564 U.S. 236-37 "Where yield 'appreciable fails to deterrence,' sion exclusion is " 'clearly (quoting . . . unwarranted.' Id. at 237 United (1976)). Janis, States v. 428 U.S. "Police trigger practices only the harsh sanction exclusion they yield enough '[meaning- when are deliberate culpable enough fu[l]' deterrence, and to be 'worth the " price paid by justice system.' Davis, 564 U.S. at 141). Herring, (quoting 555 U.S. at 5 Majority op., "marginal is not Moreover, deterrence justify

enough of deterrence exclusion; 'the benefits outweigh Dearborn, 327 Wis. 2d the costs.'" must 129). principal Herring, (quoting "The 555 U.S. at letting guilty applying course, is, the rule of cost go free—something dangerous possibly that defendants system.'" justice concepts criminal of the 'offends basic (quoting Leon, Herring, United States v. U.S. at 141 555 (1984)). society high the cost to 897, 908 Given 468 U.S. against excluding probative in a a defendant evidence suppression "the last of the evidence is trial, criminal to that is on the defendant show and the burden resort" Scott, U.S. at 364-65. exclusion is warranted. exception ¶ faith is a well-defined 144. Good exclusionary Dearborn, 252, Wis. 2d rule. See purpose exclusionary rule does not serve its 37. "The good police that reasonable, faith belief act with when App Oberst, 2014 WI State v. their conduct is lawful." Leon, 892; see also 2d 847 N.W.2d 9, 354 Wis. ("We frequently questioned at 919 have 468 U.S. any exclusionary can have deterrent rule whether the objec offending acted in the officers effect when tively their conduct did not vio reasonable belief Amendment."). "good-faith inquiry The late the Fourth question objectively ascertainable is confined to reasonably have well-trained officer would whether a illegal light of all of the that the search was known (internal quo Herring, 555 U.S. at 145 circumstances." omitted). tations good exception applies an faith when 145. The that is later found unconsti- relies on a statute officer (1987). Krull, v. 480 U.S. 349-50

tutional.6 Illinois the factual good exception is not cabined to faith by previously aFpplied in which it has been circumstances clearly "Unless a is unconstitutional, statute an officer expected question judgment cannot be legislature passed the law. If the statute is sub- sequently excluding declared unconstitutional, evi- pursuant prior judicial dence obtained it to such a declaration not will deter future Fourth Amendment simply an violations officer who has fulfilled his responsibility to enforce the statute as written." Id. present

¶ 146. In the case, there is no deterrent suppressing value in the results of Blackman's blood required Informing test. Abler was to read the Specifically, Blackman. Accused form to Wis. Stat. 343.305(4) provides that "the law enforcement officer following person shall read the from whom the specimen requested." Excluding test the results of Blackman's blood test "will not deter future Fourth simply Amendment violations" because the . . . "officer responsibility fulfilled his to enforce the statute as Krull, written." 480 U.S. at 349-50. deputy did not act with "deliberate, grossly negligent

reckless, or conduct" and therefore, suppression yield this case is not one in which would "appreciable Weighed against high deterrence." the so- suppression cietal exclusion, cost of of the blood test is present suppression not in the case. all, warranted After deputy is the "last resort." The did that which he was obligated statutorily nothing nothing do; to more, less. LeFlore, Supreme People United States Court. See v. 32 N.E.3d (Ill. 2015) 1043, ("Clearly, application good-faith 1050 inquiry is not limited specific circumstances addressed by States, Supreme the Court in [v. Davis United 564 U.S. 229 (2011)] any case."); Supreme or other Court United States v. (4th 2014) Stephens, (declining 764 F.3d Cir. to limit good-faith inquiry only precise "the the to factual circum- Court"). Supreme stances addressed the sup majority opinion that 148. The concludes continuing necessary

pression to deter officers from is "in Black- to read individuals the same situation as Informing However, the this man" the Accused form.7 argument the ma fails for an obvious reason: After opinion present jority it in the case concludes that rely solely reading impermissible for an to on officer Informing to consent the Accused form obtain the alleged Stat. a defendant is to have violated Wis. when 343.305(3)(ar)2., does so will unable an officer that be rely good Leon, 468 U.S. at to on the faith doctrine. Cf. ("Nor persuaded application of a are we good-faith exception pursuant conducted searches constitutionality preclude the warrants will review of guidance deny seizure, the search needed from of or courts, freeze Amendment in its Fourth law state."). present Additionally, Supreme ¶ 149. the United States " applied' exclusionary has rule to

Court 'never nonculpable, suppress a result of evidence obtained as police Davis, 240. In innocent conduct." 564 U.S. at purported incor case, this "misconduct" was the Ironically, prоvided rect information to Blackman. majority opinion previously permit has author conse ted officers to misinform an individual specific quences See of refusal individual. Cty Smith, 308 Wis. 2d Washburn v. 2008 WI Smith, In 65, an officer read an N.W.2d In individual a Louisiana driver's license the with forming recog Id., form. 53. The the Accused Court penalties apply in form did not to the nized the the Id., Yet, 54. the Court held that the individual. provided the defendant was irrel misinformation 7 Majority op., 73. long correctly Informing so

evant as the officer read the Id,., ¶ the Accused Here, form. 81. the officer also read Informing correctly the penalties the Accused form even if the implied

in the consent laws were not accu respect to rate with the defendant. good deputy sum, In the acted in faith and appeals.

his actions were confirmed the court of Accordingly, I conclude that even if I were to assume that Blackman's consent was coerced and were to agree majority ‍‌‌​​​‌‌‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌‌‌​​​‌‍opinion's statutory interpreta- with the good exception exclusionary tion, faith rule apply, would and the results of the blood are tests admissible.

III. CONCLUSION (1) Deputy reading I conclude that: Abler's Informing the Accused form to Adam Blackman not sufficient to overcome Blackman's free will such reaffirmation his consent to eviden- (2) tiary voluntary; tests was coerced rather than controlling correctly interpreted, comport statutes, deputy's reading Informing with the Accused (3) Deputy good Blackman; form to Abler, faith, required. what read ingly, he believed the statutes Accord- appeals, I would affirm the court of I respectfully majority opinion. dissent from the

Case Details

Case Name: State v. Adam M. Blackman

Court Name: Wisconsin Supreme Court

Date Published: Jul 7, 2017

Citation: 898 N.W.2d 774

Docket Number: 2015AP000450-CR

Court Abbreviation: Wis.