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Consent to blood draw wasn’t coerced by warning about revocation for refusal or threat to get warrant

State v. Bradley A. Anderson, 2015AP1573-CR, 12/23/15, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Anderson’s consent to a blood draw after his OWI arrest was not vitiated by being told that, if he refused the blood draw, his driving privileges would be revoked and the officer would get a warrant for a blood draw. In addition, the circuit court properly found that Anderson didn’t later withdraw his consent to the blood draw.

The “Informing the Accused” form—which the officer accurately read to Anderson—tells arrestees that “[i]f you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties,” § 343.305(4). In addition, in this case the officer told Anderson, before he consented, that she would obtain a search warrant to authorize a blood draw if he refused to consent. Anderson claims, unsuccessfully, that these statements made his consent involuntary.

The court acknowledges that the coercive effect of the language mandated by § 343.305(4) is a “potentially complex topic” (¶9), but concludes it is bound by State v. Wintlend, 2002 WI App 314, ¶¶17-18, 258 Wis. 2d 875, 655 N.W.2d 745, which held that aspects of § 343.305 that could be deemed coercive are not unreasonable under the Fourth Amendment, given factors that include the “safe, relatively painless and commonplace” nature of a blood draw and the State’s compelling interest in detecting and deterring drunk driving. As to the threat to get a warrant, the court concludes it is bound by State v. Artic, 2010 WI 83, ¶41, 327 Wis. 2d 392, 786 N.W.2d 430, which said that in evaluating whether consent was coerced, “[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission’” (quoting United States v. White, 979 F.2d 539, 542 (7th Cir. 1992)). (¶¶8-12).

Anderson’s claim that he later withdrew his consent fails because the circuit court found he didn’t withdraw consent, but only objected to the manner of the blood draw, and those findings are not clearly erroneous. (¶¶13-15).

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