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COA: Once defendant consented to blood test, she could not revoke it

State v. Kaitlin C. Sumnicht, 2017AP280-CR, 12/20/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Sumnicht was convicted of OWI second. She sought suppression of her blood test results on two grounds. First, she argued that that State did not develop an adequate factual record of her interaction with the deputy who allegedly obtained her consent to a blood test. Second, assuming that she did consent, she argued that she revoked it when her lawyer sent a letter to the State Laboratory of Hygiene before any testing was done and asserted her right to privacy in her blood. The circuit court denied suppression, and the court of appeals affirmed but its reasoning is unsatisfying.

Regarding her consent to the blood test, the court of appeals held that the State carried its burden of proof because:

[Deputy] Glasel read the statutory Informing the Accused form verbatim, which lays out the choice to take or refuse the test; per the form, Glasel then posed a nonleading question, “Will you submit to an evidentiary chemical test of your blood?”; although understandably not able to recall the exact words used during the arrest three months prior, Glasel testified that “[s]he stated she would” take the test; and this prompted Glasel to check mark the box “yes” on the form. This factual record is sufficiently developed to conclude that Sumnicht voluntarily consented. Further inquiry would be appropriate if there were indications that Sumnicht’s demeanor or understanding were cause for concern or if there was any evidence that countered or undermined the State’s. But Sumnicht does not allege, much less show, that there were such indications or evidence. Op. ¶15.

The State bore the burden of proving consent by clear and convincing evidence. Sumnicht points out that the State offered no evidence of Sumnicht’s demeanor, confusion or understanding when the deputy asked her to submit to a blood test. All the State actually established is that Sumnicht did not say “no.”

The court of appeals also rejected Sumnicht’s attempt to revoke her consent. It reasoning suggests that once given, consent to a blood test is irrevocable.

Contrary to the premise of her argument, the search does not consist of multiple parts and is not ongoing until the analysis is conducted. Rather, the search ended upon the blood being drawn. From that point on, the evidence was lawfully seized, and the subsequent examination of seized evidence is part and parcel of the lawful search and seizure. Namely, Wisconsin courts have squarely rejected arguments challenging the examination of lawfully seized evidence, including subsequent testing of blood drawn pursuant to a warrant, consent, or exigent circumstances. The lawful extraction of blood and subsequent testing of the blood are a single event for fourth amendment purposes. See Riedel, 259 Wis. 2d 921, ¶16 (the “examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant.” (citation omitted)); State v. VanLaarhoven, 2001 WI App 275, ¶¶13, 16, 248 Wis. 2d 881, 637 N.W.2d 411 (“‘[T]he right to seize the blood … encompass[ed] the right to conduct a blood alcohol test at some later time,’” precluding a “defendant to parse the lawful seizure of a blood sample into multiple components, each to be given independent significance.”) (citation omitted)). Thus, by the time the attorney’s letter was sent, the search was already over and the search- and seizure-related constitutional protections had been satisfied. Op. ¶21.

Sumnicht makes an interesting argument about revocation of consent. If she had consented to a search of her home, she could delimit the scope of the search or revoke her consent during the search. State v. Matejka, 2001 WI 5, ¶37, 241 Wis. 2d 51, 621 N.W.2d 891 (quoting Florida v. Jimeno, 500 U.S. 248, 252 (1991)). So why can’t she revoke her consent to have her blood tested provided that she does so before the testing begins? Neither the State nor the court of appeals provide a satisfying answer.

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