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Consent to draw blood was voluntary

State v. Justin T. Kane, 2018AP1885-CR, District 4, 2/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Kane’s consent to a blood draw after his arrest for OWI was voluntary under all the circumstances.

The circuit court made findings of fact after a suppression hearing, and, of course, the court of appeals accepts those findings of fact unless they are clearly erroneous. Kane challenges only one of the lower court’s findings—regarding whether the circumstances of Kane’s consent were congenial, nonthreatening, and cooperative. Even with respect to that finding, Kane doesn’t explain why the circuit court was wrong, and the video of Kane’s interaction with the officer—which the circuit court reviewed—isn’t in the record, so the court of appeals gets to assume it supports the circuit court’s findings. (¶¶18-20).

Kane also points to the fact that when he “consented” to the blood draw he was in custody and handcuffed. But under the totality of the circumstances as established by the circuit court’s findings of fact, the finding of consent is affirmed. (¶¶24-27).

Kane’s last argument about consent is semantic: That the officer asked him if he would submit to a blood draw, rather than if he would consent. He relies on State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182, but that case is plainly different, as the police told the defendant they would search his car, without asking for consent or submission. (¶¶22-23).

Kane also argued that he withdrew whatever consent he gave to testing of his blood by writing to the state hygiene lab that he revoked his consent to the testing of his blood. This claim fails under State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223. (¶¶10-12). See also State v. Lane, 2019AP153-CR, unpublished slip op. (Oct. 17, 2019). (¶¶10-12).

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