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Defense win! Court of appeals affirms suppression of blood test based on withdrawal of consent

State v. Jessica M. Randall, 2017AP1518-Cr, District 4, 6/14/18 (1-judge opinion, ineligible for publication), review granted 10/9/18case activity (including briefs)

Here’s a rare sighting! One district of the court of appeals has declared that it is not bound by a decision addressing the same set of facts issued by another district. This is what you call SCOW bait (sorry to say, given that this is a defense win). Randall was arrested for OWI, an officer read the “Informing the Accused” card, and she agreed to a blood test. A few days later, her lawyer sent the lab a letter withdrawing her consent. The court of appeals held that Randall had a right to withdraw her consent up to the time when blood was actually tested. But just 6 months ago, the court of appeals reached the opposite result in State v. Sumnicht. 

The State argued that Randall could withdraw her consent up to the point when her blood was taken, but not after. The circuit court disagreed and granted suppression. The court of appeals affirmed based on two cases: State v. VanLaarhoven, 2001 WI App 275, ¶16, 248 Wis. 2d 881, 637 N.W.2d 411 and State v. Wantland, 2014 WI 58, ¶33-34, 355 Wis. 2d 135, 848 N.W.2d 810.

Vanlaarhoven rejected the argument that a defendant must consent to having his blood drawn and also to having his blood tested. It holds that the taking and testing of blood comprise one continuous search under the Fourth Amendment. Vanlaarhoven, ¶17 Meanwhile, Wantland holds that after consenting to a search, a person may withdraw his consent through unequivocal actions or statements. Wantland, ¶5. Thus:

¶13 Based on VanLaarhoven and Wantland, I conclude that while no additional authority is needed to continue a lawful search of someone’s blood by testing the blood that has been taken, that search cannot continue when the original authority is revoked, such as when a warrant has been deemed invalid or consent has been withdrawn. So here, following VanLaarhoven and Wantland, the search of Randall’s blood, which comprised both the taking and testing of the blood, had not yet been completed at the time when the officials at the state laboratory possessed Randall’s blood but had not yet tested Randall’s blood; therefore, before the blood was tested Randall had the right to withdraw her consent to the continuation of that search. Accordingly, when Randall clearly and unequivocally withdrew her consent to the search of her blood before it was tested, the State lost its only lawful basis for the warrantless search and its subsequent testing was done in violation of Randall’s Fourth Amendment rights.

Sumnicht involved the same set of facts, but the District 2 court of appeals reached the opposite result. See our post on Sumnicht. Here District 4 says: “I am not bound by the Sumnicht opinion, and, as explained above, I conclude that the controlling case on which Sumnicht relied, VanLaarhoven, when taken together with Wantland, compels a different result.” Opinion ¶16. You can’t say that District 2 wasn’t aware of Wantland because it actually discusses the case. Sumnicht¶20. Instead, District 4 seems to be saying that District 2 just didn’t realize that on these facts Wantland + Sumnicht = suppression.

District 4 also rejects several additional arguments advanced by the State, but it’s District 4’s defiance of District 2 that is so interesting. SCOW has held that the court of appeals has no power to overrule, modify, or withdraw language from one of its published opinions. Cook v. Cooke, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). But can it ignore or overrule an unpublished opinion? The answer appears in §809.23(3)(b), which states in part: “Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court in this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.”

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