State of Wisconsin, Plaintiff-Respondent, v. Gerald P. Mitchell, Defendant-Appellant.
CASE NO.: 2015AP304-CR
SUPREME COURT OF WISCONSIN
July 3, 2018
2018 WI 84
Terence T. Bourke
L.C. No. 2013CF365; ON CERTIFICATION FROM THE COURT OF APPEALS; ORAL ARGUMENT: April 11, 2018; SOURCE OF APPEAL: COURT: Circuit, COUNTY: Sheboygan; JUSTICES: CONCURRED: KELLY, J., concurs, joined by R.G. BRADLEY, J. (opinion filed). DISSENTED: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed).
For the defendant-appellant, there were briefs filed by Linda J. Schaefer and Schaefer Law Firm, S.C., Sturgeon Bay. There was an oral argument by Linda J. Schaefer.
For the plaintiff-respondent, there was a brief filed by Ryan J. Walsh, chief deputy solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and David H. Perlman, assistant attorney general. There was an oral argument by Ryan J. Walsh, chief deputy solicitor general.
An amicus curiae brief was filed on behalf of Mothers Against Drunk Driving by Kevin M. St. John and Bell Giftos St.
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
Appeal from a judgment of the Circuit Court. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This appeal is before us on certification from the court of appeals.
¶2 Gerald Mitchell was convicted of operating while intoxicated and with a prohibited alcohol concentration, based on the test of blood drawn without a warrant while he was unconscious, pursuant to
I. BACKGROUND
¶4 On the afternoon of May 30, 2013, officers from the City of Sheboygan Police Department were dispatched in response to a report that the caller had seen Mitchell, who appeared intoxicated, get into a gray van and drive away. Between 30 and 45 minutes later, Officer Alex Jaeger made contact with Mitchell. He found Mitchell walking near a beach. Mitchell was wet, shirtless and covered in sand. Mitchell‘s speech was slurred and he had difficulty maintaining his balance.
¶5 Mitchell admitted to Jaeger that he had been drinking prior to driving and that he continued drinking at the beach. He also stated that he had parked his vehicle “because he felt he was too drunk to drive.” Nearby, officers found the gray van Mitchell was reported to have been driving.
¶6 After observing Mitchell‘s physical condition, Jaeger believed that it would not be safe to conduct standard field sobriety tests. Instead, he administered a preliminary breath
¶7 Following his arrest, and during the drive to the pоlice station, Mitchell‘s physical condition deteriorated and his demeanor became more “lethargic.” Upon arrival at the police station, it became apparent that an evidentiary breath test would not be feasible. Instead, Jaeger opted to transport Mitchell to a nearby hospital for a blood draw.
¶8 During the approximately eight-minute drive to the hospital, Mitchell “appeared to be completely incapacitated, [and] would not wake up with any type of stimulation.” Upon arriving at the hospital, Mitchell needed to be transported in a wheelchair where he sat “slumped over” and unable to maintain an upright seating position.
¶9 After Mitchell entered the hospital emergency room, Jaeger read Mitchell the Informing the Accused form, thereby reading Mitchell the statutory opportunity to withdraw his consent to a blood draw. However, Mitchell was “so incapacitated [that] he could not answer.” Jaeger directed hospital staff to draw a sample of Mitchell‘s blood.3 They did so. Mitchell did not awaken during the procedure.
¶11 Mitchell was subsequently charged with driving with a prohibited alcohol concentration (PAC), as well as operating a motor vehicle while intoxicated (OWI), as a 7th offense. Prior to trial, Mitchell moved to suppress the results of the blood test. He alleged that the warrantless blood draw violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.
¶12 In response to Mitchell‘s motion, the State contended that he had consented to the blood draw when he drove his van on Wisconsin highways according to a subsection of Wisconsin‘s implied-consent law,
¶13 The circuit court4 denied Mitchell‘s suppression motion in reliance on
¶14 Mitchell appealed his conviction based on the sole contention that the warrantless blood draw violated his Fourth Amendment right to be free from “unreasonable searches and seizures.”
¶15 The court of appeals, noting the opportunity to clarify the law in light of our recent decision in State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812,5 certified the following questions: (1) whether “implied-consent,” the potential for which is described in
A. Standard of Review
¶16 Whether a suppression motion was properly deniеd presents a question of constitutional fact. Howes, 373 Wis. 2d 468, ¶17 (citing State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d 120). We will not set aside a circuit court‘s findings of historical fact unless they are clearly erroneous. State v. Brereton, 2013 WI 17, ¶17, 345 Wis. 2d 563, 826 N.W.2d 369. However, the application of those facts to Fourth Amendment principles presents a question of law that we review independently. Id.
B. Fourth Amendment General Principles
¶17 The
¶18 Drawing blood is a search of the person. Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173 (2016) (stating that “our cases establish that the taking of a blood sample or the administration of a breath test is a search“); Howes, 373 Wis. 2d 468, ¶20 (concluding that a blood draw is a search). Furthermore, a warrantless search is “presumptively unreasonable.” State v. Brar, 2017 WI 73, ¶16, 376 Wis. 2d 685, 898 N.W.2d 499 (quoting Tullberg, 359 Wis. 2d 421, ¶30).
¶19 However, “there are certain ‘specifically established and well-delineated’ exceptions to the Fourth Amendment‘s warrant requirement.” Brar, 376 Wis. 2d 685, ¶16 (quoting State v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1, 646 N.W.2d 834). One such exception is a search conducted pursuant to consent. Brar, 376 Wis. 2d 685, ¶16. Warrantless consent searches are reasonable; and therefore, they are consistent with the Fourth Amendment. Fernandez v. California, 571 U.S. 292, 134 S. Ct. 1126, 1137 (2014); Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
C. Consent
¶20 In determining whether consent was given, we employ a two-step process. First, we examine whether relevant words, gestures or conduct supports a finding of consent. State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430.
1. Implied Consent
¶21 As we have explained, consent to search need not be given verbally. State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998) (citing United States v. Griffin, 530 F.2d 739, 741 (7th Cir. 1976); United States v. Donlon, 909 F.2d 650, 652 (1st Cir. 1990) invalidated on other grounds by United States v. Omar, 104 F.3d 519 (1st Cir. 1997)). Consent given through conduct “provides a sufficient basis on which to find that the defendant consented to the search.” Phillips, 218 Wis. 2d at 197 (concluding that defendant‘s affirmative assistance in the search of his bedroom demonstrated his consent to the search). “Through conduct, an individual may impliedly consent to be searched.” Brar, 376 Wis. 2d 685, ¶17.
¶22 In addition, the United States Supreme Court has recently explained that consent also may be shown by the context in which consent arises. Birchfield, 136 S. Ct. at 2185. In Birchfield, the Court said that “[i]t is well established that a search is reasonable when the subject consents, and that sometimes consent to a search need not be express but may be fairly inferred from context.” Id. (internal citations omitted). The Court‘s connection between context and consent was made in the course of Birchfield‘s review of searches incident to arrest for OWI in states that have implied-consent laws. Birchfield cited two cases that demonstrated constitutionally sufficient consent because of the context in
¶23 In Jardines, the Court, through Justice Scalia, recognized the sanctity of the home and that at the “very core” of the Fourth Amendment “stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,‘” and that this right extended to the curtilage of the home, including the home‘s front porch. Jardines, 569 U.S. at 6-7 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
¶24 However, the Supreme Court also said that the sanctity of the сurtilage of one‘s home is not absolute and certain permissions to enter may be implied. Jardines, 569 U.S. at 8. In Jardines, the Court recognized that by putting a knocker on his door, the homeowner had given implicit consent for visitors to approach and said that the implicit granting of such permission “does not require fine-grained legal knowledge.” Id. Rather, law enforcement could approach a homeowner‘s front door “precisely because that is ‘no more than any private citizen might do.‘” Id. (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)). The Court recognized that a homeowner who places a knocker on his front door impliedly invites visitors to approach and enter upon the home‘s curtilage. Jardines, 569 U.S. at 8. Stated otherwise, in the context established by the homeowner, consent to enter the curtilage and approach the front door was given.
¶26 The Fourth Amendment exception upheld in Colonnade was grounded in “unique circumstances” in that “[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy, could exist for a proprietor over the stock of such an enterprise.” Marshall, 436 U.S. at 313 (internal citation omitted). Referring to the liquor and firearms industries, the Court said that “when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.” Id. According to the Court, businesses in these industries are part of “a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware.” Id. By choosing to participate in certain businesses, the Court concluded that those persons had “accept[ed] the burdens as well as the benefits of their trade,” in a manner different from other businesses and thus “in effect
¶27 Birchfield‘s discussion of the relationship between context and consent instructs that context is part of the totality of circumstances that courts should review when consent to search is at issue. In regard to the context of highway regulation, we note that the statutеs at issue here are the legislature‘s attempt to stop the injuries and deaths drunken drivers inflict year after year on others who use Wisconsin highways.7 That drunken driving has resulted in and necessarily increased state regulation of the privilege of driving on public roadways is well known. Therefore, the context of well-publicized regulations forms part of the totality of circumstances we examine to determine whether a driver who has been arrested for OWI consented to be searched.
¶29 Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin‘s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated.8 This qualified consent to search is required in order to exercise the privilege оf driving in Wisconsin.9 As Birchfield explained, implied consent laws condition “the privilege of driving on state roads
¶30 As acknowledged by the United States Supreme Court, driving on state highways is a privilege; it is not a right. Id. In Wisconsin, it is a statutory privilege that comes with
¶31 The United States Supreme Court recognized that implied consent laws are the context in which constitutionally sufficient consent for chemical testing may be given when it opined, “our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. . . . [N]othing we say here should be read to cast doubt on them.” Birchfield, 136 S. Ct. at 2185.
¶32 Birchfield also established a “categorical” rule that a breath test does not implicate “significant privacy concerns,” and therefore, a warrant is not needed to administer a breath test. Birchfield, 136 S. Ct. at 2176-84. This is an interesting conclusion because of the Court‘s previous statements that there are no bright-line rules for determining when a warrant is not required. See Missouri v. McNeely, 569 U.S. 141, 158 (2013). It is also interesting because a driver‘s bodily alcohol concentration can be determined from evidentiary breath tests as well as from blood tests.
¶33 Birchfield went on to explain, “It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented
¶34 Criminal penalties for withdrawing consent to a blood draw were beyond the scope of implied-consent laws because there was an insufficient nexus between the consequence of criminal penalties and choosing to drive on the highways in those states that imposed criminal penalties for withdrawing consent to provide a blood sample for testing. Id. at 2186. In Wisconsin, the consequences of refusing to permit a blood draw are civil and evidentiary, not criminal.
¶35 Relevant to assessing future challenges to refusal to submit to a blood draw, the Supreme Court adopted the following standard: motorists are “deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving and entail penalties that are proportional to severity of the violation.” Id. When applying that standard, the Court concluded that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense [for refusing to submit].” Id. However, imposing “civil penalties and evidentiary consequences” on motorists who refuse to submit to a blood draw are permissible because civil penalties, such as license revocation, have a nexus to driving. Id. at 2185 (citing McNeely, 569 U.S. at 160-61).
¶37 Accordingly, we confirm that because it is constitutionally permissible to impose civil penalties as a consequence for refusing to submit to a blood draw, as
¶38 Furthermore, we presume that drivers know the laws applicable to the roadways on which they drive. State v. Weber, 2016 WI 96, ¶78, 372 Wis. 2d 202, 887 N.W.2d 554 (Kelly, J., concurring). Likewise, we also recognize, as has the United States Supreme Court, that in a state with civil penalties for refusal to submit to a blood draw, “a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.” South Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983).
¶39 In Neville, the Supreme Court examined whether Neville‘s refusal to submit to a blood-alcohol test could be used as evidence of guilt for drunken driving at his trial. The circuit court of South Dakota had suppressed Neville‘s refusal to submit to a blood-alcohol test based on the circuit court‘s conclusion that evidence of refusal violated Neville‘s federal constitutional rights. Id. at 556. The Supreme Court reversed the suppression because Neville‘s “right to refuse the blood-alcohol test [] is simply a matter of grace bestowed by the South Dakota legislature,” not a constitutional right. Id. at 565. As the Court further explained, because a driver had no constitutional right to refuse a blood-draw when there was probable cause to arrest for OWI, the driver‘s refusal could be used against him at trial as evidence of guilt. Id.; see also Howes, 373 Wis. 2d 468, ¶62 (Gableman, J., concurring) (“[A]
¶40 Of course, consent voluntarily-given before a blood draw may be withdrawn with or without a statutory reminder. United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005). However, when consent is withdrawn, civil consequences may follow because the opportunity to withdraw voluntarily given consent is not of constitutional significance. Neville, 459 U.S. at 565;
¶41 The legitimacy of implied-consent laws has been supported repeatedly by the United States Supreme Court. In McNeely, the Court stated that “[n]o one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” McNeely, 569 U.S. at 160 (quoting Mich. Dep‘t of State Police v. Sitz, 496 U.S. 444, 451 (1990)). The Court further recognized that “drunk driving continues to exact a terrible toll on our society,” and that “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to
consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” McNeely, 569 U.S. at 160-61.¶42 Other states are in accord with our conclusion that drivers give constitutionally sufficient consent through driving on state highways and drinking to a point evidencing probable cause of intoxication. For example, the Supreme Court of Colorado held that warrants need not be obtained for unconscious drivers as the result of their previously-given consent under Colorado‘s “Expressed Consent Statute.” People v. Hyde, 393 P.3d 962 (Colo. 2017). The Colorado court recognized that “Hyde‘s statutory consent satisfied the consent exception to the Fourth Amendment warrant requirement.” Id., ¶3. Similarly, the Suprеme Court of Kentucky has said that drivers “consent[] to testing by operating a vehicle in Kentucky.” Helton v. Commonwealth, 299 S.W.3d 555, 559 (Ky. 2009).
¶43 As judicial opinions of other states, as well as the United States Supreme Court‘s prior statements show, “[i]mplied consent is not a second-tier form of consent.” Brar, 376 Wis. 2d 685, ¶23. Rather, when a driver chooses to operate a vehicle upon Wisconsin‘s roads, he or she does so charged with knowing the laws of this state. See Byrne v. State, 12 Wis. 577 (*519), 580 (*521) (1860).
¶44 Those laws include
¶45 In the case before us, Mitchell chose to avail himself of the privilege of driving upon Wisconsin‘s roads. Because he did so while intoxicated, by his conduct he consented to the effect of laws that are relevant to exercising that privilege. He did not need to read them off one-by-one, and then sign a piece of paper acknowledging his consent to be subject to thosе rules and penalties for failing to follow them. By driving in Wisconsin, Mitchell consented to have samples of his breath, blood or urine taken upon the request of a law enforcement officer who had probable cause to believe he was intoxicated, unless he withdrew such consent.
2. Voluntary Consent
¶46 A determination that consent has been given is not the end of our inquiry, we also must determine whether the consent was given “freely and voluntarily.” Artic, 327 Wis. 2d 392, ¶32. “However, the State need not demonstrate that consent was given knowingly or intelligently.” Brar, 376 Wis. 2d 685, ¶26 (citing Schneckloth, 412 U.S. at 241 (“Nothing, either in the
¶47 “The test for voluntariness is whether consent to search was given in the absence of duress or coercion, either express or implied.” Phillips, 218 Wis. 2d at 197. In evaluating the voluntariness of consent, we evaluate “the totality of all the surrounding circumstances.” Artic, 327 Wis. 2d 392, ¶32 (quoting Schneckloth, 412 U.S. at 226). No single criterion controls voluntariness. Phillips, 218 Wis. 2d at 197.
¶48 In making a determination of voluntariness, the State bears the burden to prove by clear and convincing evidence that consent was given voluntarily. Id. Our determination of the voluntariness of consent is a mixed question of fact and law. Id. In addition, voluntariness is a determination that we consider relative to
¶49 Consent to search that arises in the context of Wisconsin‘s implied-consent laws is voluntary in one respect
¶50 We now further consider voluntary consent under four subsections of Wisconsin‘s implied-consent law at issue in the case before us:
a. Wisconsin Stat. §§ 343.305(2) & (3)(a)
¶51 The voluntariness of consent by conduct that occurs when a driver commences operation of his vehicle on Wisconsin roadways is unequivocal and constitutionally sufficient when he or she evidences the indicia of intoxication such that there is probable cause to believe he or she is driving under the influence. Stated otherwise, voluntary consent arises through the effect of a driver‘s conduct in the context of Wisconsin law,
¶52
b. Wisconsin Stat. § 343.305(4)
¶53
You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs . . . or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person . . . .
This law enforcеment agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. . . . If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.13
It is helpful to keep
¶54
¶55 Here, Mitchell drank sufficient alcohol to render himself unconscious. He had a BAC of 0.222. It is no wonder that he passed out.14 Through this conduct, he forfeited all opportunity to withdraw the consent to search that he had given.
c. Wisconsin Stat. § 343.305(3)(b)
¶56 Mitchell was unconscious when his blood was drawn.
A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that
the person has violated s. 346.63(1) [driving while intoxicated], (2m) [underage drinking] or (5) [commercial driver] . . . [or caused injury] one or more samples specified in par. (a) or (am) may be administered to the person.
¶57 The Fourth Amendment question is whether drawing Mitchell‘s blood while he was unconscious was unreasonable and therefore in violation of Fourth Amendment‘s prohibitions against unreasonable searches. Mitchell claims the blood draw was unreasonable because he was unconscious when the Informing the Accused form was read to him. The State claims that the blood draw was reasonable because Jaeger had arrested Mitchell for driving while intoxicated.15
¶58 Mitchell‘s self-induced physical condition does not render
¶59 Therefore, under the totality of circumstances as applied to Mitchell,
¶60 Because we conclude that consent given by drivers whose conduct falls within the parameters of
¶61 The question that remains in regard to Mitchell is whether
¶62 We begin by noting that all drivers, by their conduct, consent to provide samples of their breath, blood or urine when requested by law enforcement personnel who have probable cause to arrest for driving while intoxicated.
¶63 Furthermore, the opportunity to refuse a blood test when there is probable cause to believe the driver is intoxicated is not of constitutional significance, as is shown by Supreme Court jurisprudence concluding that withdrawal of consent may be used as evidence of guilt at trial. State v. Crandall, 133 Wis. 2d 251, 255, 394 N.W.2d 905 (1986) (citing Neville, 459 U.S. at 565 (concluding that it is not “fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial“)).
¶64 In addition,
¶65 For drivers for whom the presumption applies,
III. CONCLUSION
¶66 We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin‘s roads and drinking to a point evidencing probable causе of intoxication. Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under
By the Court.-The judgment of the circuit court is affirmed.
¶68 This is not the first time we have considered whether a law enforcement officer may perform a blood draw on an individual pursuant to “consent” granted by
¶69 The court today is even more ambitious than it was in Brar. Legislatively-granted consent to perform a blood draw is justified, the court says, for the same reasons certain searches of pervasively-regulated businesses do not require warrants. Lead op., ¶¶25-28 (citing Marshall v. Barlow‘s, Inc., 436 U.S. 307 (1978); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)). But the court misunderstands the significance of that line of cases. The searches considered there were not reasonable because a legislature said they were; they were reasonable because they did not intrude on the affected person‘s reasonable expectation of privacy. In Colonnade Catering, for example, the United States Supreme Court surveyed the regulatory history of the liquor industry, reaching as far back as England of the eighteenth century. Colonnade Catering, 397 U.S. at 75. The whole point of rehearsing that history was to demonstrate that a liquor retailer had no reasonable expectation his premises would be free from regular governmental inspection. See id. Therefore, the congressionally-developed inspection regime at issue in Colonnade Catering was constitutional because it operated in an area in which the retailer had no reasonable expectation of privacy. The United States Supreme Court has treated the firearm industry in a similar fashion. In United States v. Biswell, 406 U.S. 311 (1972), the Court said “[i]t is also apparent that if the law is to be properly enforced and inspection made effective, inspections without warrant must be
¶70 The court should not venture into the “pervasive-regulation” arm of Fourth Amendment jurisprudence without a great deal of fear and trepidation. The rationale justifying this doctrine is too easy to abuse. If increased regulation decreases the areas in which individuals have a reasonable expectation of privacy, then the Fourth Amendment‘s protections are effectively contingent on the reach of the regulatory state. Through combined legislative and executive activity, oceans of regulations can wear away zones of privacy, allowing warrantless inspection regimes to follow in their wake.
¶71 Today‘s decision is a good example of the doctrine‘s erosive power. Driving, the court observes, is subject to many regulations, what with all the rules about staying on the right side of the road, speed limits, interactions with emergency vehicles, et cetera. The court could have mined that vein even more deeply than it did—under any definition, driving truly is pervasively-regulated. The temptation to reach for the doctrine under these circumstances is nearly irresistible. And why
¶72 The court thinks to wield this doctrine here with limited effect—after all, we are simply justifying a warrantless blood draw. But the court misapprehends how the doctrine functions and, therefore, its consequences. If we are of a mind that this doctrine justifies the implied consent law, we may do so only if we first conclude that regulatory pervasiveness has removed the subject of its operation from the reasonable expectation of privacy. See Colonnade Catering, 397 U.S. at 75; Biswell, 406 U.S. at 316. That is to say, because driving is pervasively regulated, those who travel on Wisconsin‘s highways have no reasonable expectation of privacy as they engage in that activity. And if that is true, it would sweep away a large body of Fourth Amendment jurisprudence as it relates to traffic stops, searches of automobiles, searches of drivers and passengers, et cetera. Wielding this doctrine as the court does tоday, if we are serious about its application, calves off a substantial piece of the Fourth Amendment.
¶73 For these reasons, and the reasons I discussed in my Brar concurrence, I conclude that the consent implied by
¶75 For more than half a century now the United States Supreme Court has recognized that warrantless blood draws can be constitutional. In Schmerber, the Supreme Court recognized that exigent circumstances can justify a warrantless blood draw from an individual arrested on OWI charges. See Schmerber, 384 U.S. at 770-71. It said the human body‘s natural metabolization of alcohol could, under the right circumstances, cause an officer to “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.‘” Id. at 770 (citation omitted).
¶77 The constitutionality of a warrantless blood draw returned to the Supreme Court in the context of the “search incident to arrest” doctrine in Birchfield, 136 S. Ct. at 2179, 2185. There, the Court said this doctrine justifies a warrantless breath test when the individual has been arrested for OWI; however, it does not justify a warrantless blood draw (at least when the suspect is conscious). See id. at 2185. In reaching this conclusion, the Court placed heavy emphasis on the differing levels of intrusiveness between the two tests. Id. at 2178. Thus, for example, it said that “[b]ecause breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a
¶78 Availability of the breаth test, however, was the driving motivation for its ruling. In the absence of such an option, the reasonableness of a warrantless blood test increases:
We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
¶79 Combining the reasoning of Schmerber, McNeely, and Birchfield provides the necessary guidance for Mr. Mitchell‘s case. Schmerber established the ground-rule principle that a warrantless blood draw can be constitutional. See Schmerber, 384 U.S. at 770-71. McNeely refined the Schmerber holding when it explained that, under the right circumstances, “the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.” See McNeely, 569 U.S. at 153. Birchfield added two important pieces to the analysis. First, it established that an individual arrested for OWI may be searched incident to his arrest for evidence of intoxication without a warrant. See Birchfield, 136 S. Ct. at 2184. And second, it determined that the method by which law enforcement conducts the search (by breath test as opposed to blood test) depends on the availability of the less-intrusive option. See id. at 2185.
¶81 I recognize that Birchfield holds a cautionary note about blood tests performed on unconscious suspects, but it appears to be in the form of an explanation for why the Court devoted just two sentences to the subject:
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due
to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.
Birchfield, 136 S. Ct. at 2184-85. Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court‘s reasons for not addressing the question we are deciding.2
¶83 Ultimately, the lead opinion is of two minds on whether a suspect may refuse a blood test, and it expressed both of them. On the one hand, it says that, “in a state with civil penalties for refusal to submit to a blood draw, ‘a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.‘” Lead op., ¶38 (quoting South Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983)). But almost immediately afterwards it also said: “Of course, consent voluntarily-given before a blood draw may be withdrawn with or without a statutory reminder.” Lead op., ¶40 (citing United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005)). So which is it? May a suspect refuse a blood test or not?
¶84 Perhaps, however, the lead opinion means to say that when a blood test is conducted pursuant to consent—real consent, the kind that people provide, not legislatures—the consent can be withdrawn, but when conducted pursuant to legislatively-provided consent, it cannot. That seems to be the import of the observation that the “right to refuse the blood-alcohol test . . . is simply a matter of grace bestowed by the . . . legislature.” See lead op., ¶39 (quoting Neville, 459 U.S. at 565). But if that is so, what possible jurisprudential theory allows a statute to make permanent what the constitution makes revocable?3
¶86 I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this concurrence.
¶88 The police took Gerald Mitchell‘s blood without a warrant while he was unconscious. According to the lead opinion1, this is perfectly fine because Mitchell by implication “voluntarily consented” to a blood draw and, while he was unconscious, did not revoke such consent.
¶90 Accordingly, I respectfully dissent.
I
¶91 Mitchell was arrested for operating while intoxicated. En route to a nearby hospital, he lost consciousness. Despite Mitchell‘s incapacitation, a police officer read him the Informing the Accused form. Mitchell provided no response because he was unconscious. The officer then directed hospital staff to draw a sample of Mitchell‘s blood, and they did so. Mitchell remained unconscious as his skin was pierced and his blood taken.
¶92 Seeking to exclude the evidence obtained as a result of the blood draw, Mitchell filed a motion to suppress. He premised his motion on the contention that the warrantless
¶93 The lead opinion rejects Mitchell‘s argument, concluding that the consent exception to the
II
¶94 The
¶95 One such exception to the warrant requirement is a search conducted pursuant to consent. State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430. The lead opinion correctly states that relevant words, gestures or conduct may support a finding of consent. Lead op., ¶20 (citing Artic, 327 Wis. 2d 392, ¶30).3 However, it errs by departing from Mitchell‘s “words, gestures or conduct” to determine that he impliedly consented for the state to draw his blood.
¶97 Another subsection specifically addresses the situation where a driver is unconscious.
¶98 In determining whether the warrantless taking of a blood draw from an unconscious person pursuant to
¶99 Birchfield emphasized the invasive nature of a blood test, which is significant for
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.
136 S. Ct. at 2184-85 (emphasis added).
¶101 This language compels a single conclusion: law enforcement needed a warrant here. First, the State concedes that there were no exigent circumstances that would justify a departure from the warrant requirement.5 Second, the ultimate holding in Birchfield was that a blood test cannot be administered as a search incident to arrest for drunk driving. Id. at 2185. The lead opinion‘s interpretation of the implied consent statutes attempts to accomplish exactly what the Birchfield court said violates the
[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. Framed in the terms of “implied consent,” choosing the “yes” option affirms the driver‘s implied consent and constitutes actual consent for the blood draw. Choosing the “no” option acts to withdraw the driver‘s implied consent and establishes that the driver does not give actual consent.
354 Wis. 2d 545, ¶39. As Justice Abrahamson has explained, “[t]he Padley court concluded that a driver‘s actual consent occurs after the driver has heard the Informing the Accused Form, weighed his or her options (including the refusal penalties), and decided whether to give or decline actual consent.” State v. Brar, 2017 WI 73, ¶116, 376 Wis. 2d 685, 898 N.W.2d 499 (Abrahamson, J., dissenting).
Federal and state courts around the country have cited the “but not a blood test” language a multitude of times. See, e.g., Robertson v. Pichon, 849 F.3d 1173, 1184 n.7 (9th Cir. 2017); Espinoza v. Shiomoto, 215 Cal. Rptr. 3d 807, 829 (Ct. App. 2017); State v. Ryce, 396 P.3d 711, 717 (Kan. 2017); State v. Reynolds, 504 S.W.3d 283, 307 (Tenn. 2016). The concurrence is unable to cite to any court that eschews the clear language of Birchfield‘s central holding in favor of the unique interpretation it now embraces.
In Missouri v. McNeely, the Supreme Court determined that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” 569 U.S. 141, 156 (2013). A case by case determination is the antithesis of a categorical exception. Although McNeely was an exigent circumstances case, the court‘s emphasis on the totality of the circumstances suggests broad application of the case by case determinations it requires. Brar, 376 Wis. 2d 685, ¶122 (Abrahamson, J., dissenting).
¶104 Indeed, the Supreme Court implied such a broad application of McNeely in Aviles v. Texas, 571 U.S. 1119 (2014). In Aviles, the Court vacated a Texas judgment upholding a warrantless blood draw based not on actual consent but on implied consent derived through the Texas implied consent law. 571 U.S. 1119 (2014). The Court further remanded the Aviles case to the Texas court of appeals for further consideration in light of McNeely. Id.
¶105 ”Aviles suggests that McNeely should be read broadly to apply to all warrantless blood draws and that the Texas implied consent statute was not a per se exception to the
¶107 The lead opinion employs the simple act of driving an automobile as justification for a search. The untenability of the lead opinion‘s position is aptly illustrated by Justice Kelly‘s concurrence in Brar, 376 Wis. 2d 685, ¶¶159-66 (Kelly, J., concurring). As Justice Kelly explains, a court‘s normal constitutional inquiry into whether consent is given involves an examination of the totality of the circumstances and a determination that the consent was voluntary and not mere acquiescence to authority. Id., ¶¶159-62. On the other hand, “[f]or ‘consent’ implied by law, we ask whether the driver drove his car.” Id., ¶164.
¶108 Further, the lead opinion errs by relying not on a constitutionally well-recognized exception to the warrant requirement, but instead on a Wisconsin statute, to curtail constitutional protections. By seeking to create a statutory, per se consent exception to the warrant requirement, the lead opinion further steps into a minefield. See lead op., ¶¶53-55 (asserting that Mitchell “forfeited the statutory opportunity to withdraw the consent to search that he had given.“).
¶109 A blood draw is plainly a “search” for
¶111 A person who is unconscious cannot make this choice. Because he was unconscious, Mitchell did not react to the Informing the Accused Form when law enforcement presented him with his options. He exhibited no “words, gestures, or conduct” that would indicate his actual consent to a blood draw. See Artic, 327 Wis. 2d 392, ¶30.
¶112 Because consent provided solely by way of an implied consent statute is not constitutionally sufficient, I determine that the results of Mitchell‘s blood draw must be suppressed. Accordingly, I respectfully dissent.
¶113 I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Notes
Although set forth in two separate opinions, four justices disagree with the reasoning of the lead opinion. Importantly, contrary to the lead opinion, four justices determine that the implied consent laws cannot justify the warrantless blood draw performed in this case (Abrahamson, J., Ann Walsh Bradley, J., Rebecca Grassl Bradley, J., and Kelly, J.).
The lead opinion fails to alert readers as to the non-precedential status of its essential reasoning. Lest the rule of law be unclear to courts and litigants: BY THEMSELVES, THE IMPLIED CONSENT LAWS CANNOT JUSTIFY A WARRANTLESS BLOOD DRAW.
But there is an even more important reasоn the dissent should be chary of finding such a categorical prohibition in that precedent: Birchfield is not comfortable in its own skin. Its central logic is actually self-contradictory, which explains why both the court and the dissent are able to call on it for support. If the Supreme Court had endorsed implied-consent laws as sufficient to authorize a breath or blood test (as our court says), then it would have held that implied consent justified the breath test. But it didn‘t. It said the “search incident to arrest” exception to the
In State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980), Neitzel‘s license was suspended for 60 days for his unreasonable refusal to permit chemical testing. Id. at 192. Neitzel argued that the refusal was not unreasonable because he had asked to consult his attorney before deciding and his request was denied. Id. at 193. In dismissing Neitzel‘s argument, we said that under the circumstances no right to counsel was provided. Id. We also explained that a driver must be arrested before he or she could be asked to submit to chemical testing, but custody at that point did not implicate a right to counsel. Id. at 200. Because the focus in Neitzel was on an alleged right to counsel, our discussion addressed that concern. However, our discussion herein explains why constitutionally sufficient consent occurs when a driver operates a vehicle on Wisconsin‘s highways and drinks or uses drugs to a point where the driver exhibits probable cause that he or she is intoxicated.