State v. Levanduski

393 Wis.2d 674

948 N.W.2d 411

2020 WI App 53

STATE of Wisconsin, Plaintiff-Appellant,

v.Dawn J. LEVANDUSKI, Defendant-Respondent.^†

Appeal No. 2019AP1144-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: June 11, 2020

Opinion Filed: July 1, 2020

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey A. Sisley, assistant district attorney.

On behalf of the defendant-respondent, the cause was submitted on the brief of John T. Bayer of Law Offices of John T. Bayer, Milwaukee.

Before Neubauer, C.J., Gundrum and Davis, JJ.

GUNDRUM, J.¹

¶1 The State appeals from an order of the circuit court suppressing evidence from a blood draw of Dawn Levanduski following her arrest for operating a motor vehicle while intoxicated (OWI), second offense. The court granted Levanduski's suppression motion on the basis that her consent to the draw was not voluntary because the arresting officer, as part of reading the Informing the Accused form to her, informed her that if she refused to submit to the blood draw, "the fact that [she] refused testing can be used against [her] in court," which information the court concluded and Levanduski insists was a misrepresentation of the law. Because we conclude that the Informing the Accused form, and hence the officer, did not misrepresent the law to Levanduski, we also conclude that her consent to the blood draw was voluntary.² With that, we determine that the court erred in granting her suppression motion, and we reverse and remand for further proceedings.

Background

¶2 After observing significant indicia of intoxication, an officer arrested motorist Levanduski for OWI, second offense. Following the officer reading her the Informing the Accused form, Levanduski consented to the drawing of her blood. Part of that form states: "If you refuse to take any test that this agency requests, your operating privileges 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. " WIS. STAT. § 343.305(4) (emphasis added). An analysis of Levanduski's blood sample indicated a .269 blood alcohol concentration (BAC). She was charged with OWI and operating with a prohibited alcohol concentration, both as a second offense.

¶3 Levanduski moved to suppress the blood test results. She claimed her consent to the blood draw was involuntary because she had a constitutional right to refuse to submit to a blood draw and the officer violated that right by misinforming her that if she refused to submit to it, the fact that she refused could be used against her in court. The circuit court agreed and granted Levanduski's motion. The State appeals.

Discussion

¶4 In reviewing a circuit court's order granting or denying a suppression motion, "[w]e will uphold the court's factual findings unless they are clearly erroneous, but we independently apply constitutional principles to those facts." State v. Coffee , 2019 WI App 25, ¶6, 387 Wis. 2d 673, 929 N.W.2d 245.

¶5 WISCONSIN STAT. § 343.305, Wisconsin's implied consent law, provides in relevant part:

(2) IMPLIED CONSENT. Any person who ... drives or operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol [or drugs], or any combination of [these substances], when requested to do so by a law enforcement officer under sub. (3)(a) .... Any such tests shall be administered upon the request of a law enforcement officer....

(3) ... (a) Upon arrest of a person for a violation of [ WIS. STAT. §] 346.63(1) ... a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub.(2) ....

....

(4) INFORMATION. At the time that a chemical test specimen is requested under sub. (3)(a) ..., the law enforcement officer shall read the following to the person from whom the test specimen is requested:

"You have ... been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both ...

This law enforcement 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 any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. 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. ...."

(Emphasis added.)

¶6 Similar to her argument before the circuit court, Levanduski argues on appeal that under the state of the law at the time of her arrest, she had a Fourth Amendment constitutional right to refuse to submit to a blood draw. Because of this, she insists, when the officer, pursuant to WIS. STAT. § 343.305(4), read to her the Informing-the-Accused language stating that if she refused to submit to the requested test, "the fact that [she] refused testing [could] be used against [her] in court," the officer misrepresented the law. And because the officer misrepresented the law, she continues, her consent to the blood draw was coerced and not voluntary. The law does not support Levanduski's position.

¶7 In South Dakota v. Neville , 459 U.S. 553, 555, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), Neville refused to submit to a blood draw after police warned him he could lose his driver's license if he refused. When Neville's Fifth Amendment case came before the Supreme Court, the Court noted that South Dakota's implied-consent law was designed to discourage refusals by providing for the revocation of the driver's license as well as "allowing the refusal to be used against the defendant at trial." Id. at 559-60, 103 S.Ct. 916. The Court held "that the admission into evidence of a defendant's refusal to submit to [a blood-alcohol] test ... does not offend the right against self-incrimination." Id. at 554, 103 S.Ct. 916. Contrasting the use at trial of a defendant's refusal to take the witness stand with the use of a defendant's refusal to submit to a blood draw, the Court expressed that "a prosecutor's or trial court's comments on a defendant's refusal to take the witness stand impermissibly burdened the defendant's Fifth Amendment right to refuse," but in the case of a 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." Id. at 560, 103 S.Ct. 916 n.10.

¶8 Neville also challenged the use of his refusal on due process grounds because although the law enforcement officer had warned him pre-refusal that his driver's license could be revoked if he refused to submit to the blood test, the officer did not specifically warn him that the fact of his refusal could be used as evidence against him in court. Id. at 555, 564, 103 S.Ct. 916. The Court contrasted using the fact of a defendant's refusal with using as impeachment evidence the defendant's silence following Miranda³ warnings. Id. at 565, 103 S.Ct. 916. The Neville Court stated that unlike using a defendant's silence against him,

we do not think it 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. First, the right to silence underlying the Miranda warnings is one of constitutional dimension, and thus cannot be unduly burdened. [Neville's] right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota legislature.

Id. (citation omitted). The Court found no due process violation and noted that it was a lawful "consequence" that evidence of Neville's refusal could be used against him "in court" and "at trial." Id. at 565-66, 103 S.Ct. 916.

¶9 Two years after Neville , in State v. Bolstad , 124 Wis. 2d 576, 585, 370 N.W.2d 257 (1985), our supreme court expressed that "[t]he state may submit [at trial] the ... admissible evidence that Bolstad refused" to permit a blood draw to "test for blood alcohol content." Then, in State v. Zielke , 137 Wis. 2d 39, 50-51, 403 N.W.2d 427 (1987), another blood-draw case, the court indicated that if law enforcement appropriately advises an OWI suspect by reading the Informing-the-Accused information to the suspect, the State may "obtain the benefit of using refusal evidence in the criminal prosecution for the substantive offense involving intoxicated use of a vehicle." Referring to an earlier decision in State v. Crandall , 133 Wis. 2d 251, 394 N.W.2d 905 (1986), the Zielke court summarized the Crandall court's holding as "[o]nce appropriately advised[,] there was no constitutional impediment to using the fact of refusal in the subsequent prosecution for operating while intoxicated." Zielke , 137 Wis. 2d at 50, 403 N.W.2d 427. Drawing from Bolstad and a decision of this court in State v. Albright , 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980), the Zielke court summarized the state of the law on this point at that time: "[T]he fact of the defendant's refusal to submit to a test may be introduced at trial on the substantive drunk driving offense as a means of showing consciousness of guilt." Zielke , 137 Wis. 2d at 49-50, 403 N.W.2d 427.

¶10 Despite the clear rule that an OWI suspect's refusal to submit to a blood draw can be used against the suspect as evidence in court, Levanduski insists this rule has been abrogated by recent decisions of the United States Supreme Court and Wisconsin Supreme Court. She is incorrect; in fact, the rule has been reinforced.

¶11 While Levanduski relies most heavily upon Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), an...