State v. Blackman

377 Wis.2d 339

898 N.W.2d 774

2017 WI 77

STATE of Wisconsin, Plaintiff-Appellant,

v.Adam M. BLACKMAN, Defendant-Respondent-Petitioner.

No. 2015AP450-CR

Supreme Court of Wisconsin.

Oral Argument: April 12, 2017

Opinion Filed: July 7, 2017

For the defendant-respondent-petitioner, there were briefs by Dennis M. Melowski and Melowski & Associates, LLC, Sheboygan, with whom on the briefs were Chad A. Lanning and Lubar & Lanning, LLC, West Bend, and oral argument by Dennis M. Melowski.

For the plaintiff-appellant there was a brief by Michael C. Sanders, assistant attorney general, and Brad D. Schimel, attorney general, and an oral argument by Michael C. Sanders.

SHIRLEY S. ABRAHAMSON, J.

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

¶2 The issue presented is whether the consequences for refusing to submit to a blood test requested under Wis. Stat. § 343.305(3)(ar)2. were misrepresented to Blackman and, if so, whether that misrepresentation rendered Blackman's consent to the blood draw coerced, that is, not freely and voluntarily given under the Fourth Amendment.³ Furthermore, if the court concludes that Blackman's consent to the blood draw was not voluntary consent under the Fourth Amendment, the issue becomes whether the court should apply the good faith exception to the exclusionary rule and admit the evidence of the blood alcohol concentration from the blood draw.

¶3 For the reasons set forth, we reverse the decision of the court of appeals, affirm the suppression order of the circuit court, and decline to apply the good faith exception to the exclusionary rule in the instant case.

¶4 The Fourth Amendment ordinarily requires a search warrant for a blood draw unless one of the exceptions to the warrant requirement exists. Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 2173, 195 L.Ed.2d 560 (2016). In the instant case, the only exception to the warrant requirement at issue is whether Blackman's consent to the blood draw was given freely and voluntarily under the Fourth Amendment. When the legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given. State v. Johnson , 2007 WI 32, ¶ 16, 299 Wis.2d 675, 729 N.W.2d 182 (citing State v. Phillips , 218 Wis.2d 180, 197, 577 N.W.2d 794 (1998) ; Bumper v. North Carolina , 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ).

¶5 Blackman submitted to a blood draw after Deputy Sheriff John Abler stated the consequences of refusing to submit to a test: Blackman (who was not suspected of a drunk-driving offense) was told that his operating privilege would be revoked if he refused to submit to a blood draw. This information was not accurate. A driver who was not suspected of a drunk-driving offense would prevail at a refusal hearing and his operating privilege would not be revoked. See Wis. Stat. § 343.305(9)(a) 5.a.

¶6 For the reasons set forth, we conclude that the State did not prove by clear and convincing evidence that Blackman's consent to the blood draw was valid, that is, that it was freely and voluntarily given under the Fourth Amendment. Because the exclusionary rule's deterrent effect will be served in instant case by suppressing evidence of Blackman's blood test, we decline to apply the good faith exception to the exclusionary rule. The results of Blackman's blood draw are therefore suppressed.

¶7 Accordingly, the cause is remanded to the circuit court to reinstate its order suppressing the evidence and for further proceedings not inconsistent with the decision of this court.

¶8 Our decision is organized as follows:

I. We state the facts.

II. We state the standard of review.

III. Our analysis proceeds as follows:

(A) We examine Wis. Stat. § 343.305 to determine whether license revocation is a statutory 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 obtained through misrepresentation, rendering his consent coerced, that is, not voluntary and free consent under the Fourth Amendment. We conclude that the consent was obtained through misrepresentation and was coerced.

(C) We determine whether to apply the good faith exception to the exclusionary rule in the instant case. We conclude that the good faith exception does not apply in the instant case.

I

¶9 For purposes of the motion to suppress evidence of Blackman's blood test, the statement of facts is brief and not in dispute.

¶10 At about 10 A.M. on the morning of June 22, 2013, Blackman was driving his car in a northeast direction on County Highway WH in the Town of Taycheedah, Fond du Lac County. Blackman made a left turn onto Lakeview Road. As he was turning, his car collided with a bicyclist travelling in a southwest direction on County Highway WH.

¶11 A witness at the scene explained that Blackman's car collided with the bicyclist, causing the bicyclist to "fly up in the air, over the car, and land on the roadway." The bicyclist suffered great bodily harm, including a mandibular fracture, fractures to both forearms, rib fracture, sinus fracture, a C6 vertebrae fracture, liver laceration, lung contusion, and a subdural hemorrhaging brain bleed.

¶12 Blackman and the witness both stopped to check on the bicyclist.

¶13 Shortly after the collision, Fond du Lac Deputy Sheriff John Abler was dispatched to the scene.

¶14 Deputy Sheriff Abler testified at the suppression hearing that he had reason to believe that Blackman may have violated a state or local traffic law by failing to yield to the bicyclist and that the bicyclist sustained great bodily harm.

¶15 Deputy Sheriff Abler also testified that before the blood test was administered he did not have reason to believe that Blackman was under the influence of intoxicants. Deputy Sheriff Abler testified in response to questions by the prosecutor about any signs of intoxication as follows:

Q: You noticed no odor of intoxicants coming from him?

A: That's correct.

Q: You noticed no slurred speech

A: That is correct.

Q: You noticed no bloodshot eyes?

A: Correct.

Q: You noticed no glassy eyes?

A: Correct.

Q: You noticed no glassy eyes?

A: Correct.

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

A: I did not notice anything.

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

A: I agree.

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

A: I agree.

¶16 Despite the absence of any signs that Blackman was intoxicated, Deputy Sheriff Abler testified that he explained to Blackman that it was "standard operating procedure for the department, when drivers are involved in accidents of a serious nature, to obtain a blood sample." Blackman went to the hospital and submitted to a blood test. Although Blackman rode in Deputy Sheriff Abler's squad car to the hospital, he was not considered under arrest.

¶17 At the hospital, Deputy Abler read the statutory Informing the Accused Form⁴ to Blackman verbatim and requested that Blackman submit to a blood draw.

The test of his blood revealed an alcohol concentration of .104.

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

¶19 At a pretrial suppression hearing, the circuit court suppressed the evidence obtained from the blood draw on the ground that Blackman's consent was obtained by misstatements about the consequences of his refusal to take the test and therefore his consent was coerced.

¶20 According to the circuit court, the Informing the Accused Form under Wis. Stat. § 343.305(4) misstates the law by declaring that the refusal to take a test under § 343.305(3)(ar)2.will lead to revocation of a driver's operating privilege. The circuit court concluded that revocation for a refusal under Wis. Stat. § 343.305(3)(ar)2. would be "statutorily unenforceable" because the issues at a refusal hearing are "limited to" whether the officer had probable cause to arrest for an OWI-related offense, whether the officer complied with and read the Informing the Accused form, and whether the driver refused to permit the test.

¶21 Because the Deputy Sheriff had no probable cause to arrest Blackman for an OWI-related offense, the circuit court concluded that "if the statutory scheme does not support a revocation that is threatened, this Court finds that coercion has occurred." The circuit court ordered the evidence of the blood test suppressed.

¶22 The court of appeals reversed the circuit court's order. It ruled, relying on State v. Padley , 2014 WI App 65, 354 Wis.2d 545, 849 N.W.2d 867, that Blackman "impliedly consented" to the blood draw by driving in Wisconsin; that Blackman had a choice to submit a sample (actual consent) or to withdraw consent (refusal); that Blackman freely chose not to withdraw consent; that the Deputy Sheriff's misstatement of the statute did not "transform Blackman's freely given actual consent under Wisconsin's implied consent law into a coerced submittal." State v. Blackman , 2016 WI App 69, ¶¶ 2, 5, 10-12, 371 Wis.2d 635, 886 N.W.2d 94.

¶23 The concurring opinion in the court of appeals acknowledged that Blackman had a "legitimate gripe" about the form read to him. According...