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Driver’s silence constituted refusal; subpoenaed urine test results were admissible

State v. Gerald J. Vanderhoef, 2016AP2052-CR, District 1, 4/30/19 (not recommended for publication); case activity (including briefs)

Vanderhoef’s silence in response to the “Informing the Accused” form constituted a refusal to consent to a chemical test, so the subsequent blood draw was unlawful. However, the state subpoenaed the results of his urine test, and that evidence was admissible.

After he was shot with a Taser during his arrest for OWI, Vanderhoef was taken to a hospital. The hospital did a urine test as part of its medical testing, and the arresting officer read him the Informing the Accused form multiple times. Vanderhoef refused to respond in any way to the officer, so the officer concluded he was refusing and got a warrant for a blood draw. (¶¶2-4).

Turns out the warrant was invalid, so the state argued the blood draw was authorized by the implied consent law, arguing Vanderhoef’s silence constituted consent or, alternatively, that he was incapable of withdrawing consent due to his condition. The circuit court agreed with these claims, but the court of appeals doesn’t. (¶¶5-6).

Relying on State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), and State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997), which held that a driver’s conduct can constitute a refusal, the court holds Vanderhoef’s silence was a refusal:

¶16     …. While at the hospital, [Officer] Schnering attempted to speak with Vanderhoef multiple times, but Vanderhoef remained silent. Schnering read the “Informing the Accused” form from beginning to end and specifically asked Vanderhoef several times whether he would consent to a blood draw. Vanderhoef remained silent. Schnering filled out the necessary paperwork, marking that Vanderhoef was refusing testing. Schnering then secured a warrant for the blood draw; however, the warrant was later found to be invalid.

¶17      We also conclude that the record does not support the circuit court’s finding that Vanderhoef was in a state of delirium and therefore unable to withdraw his consent. Vanderhoef’s medical charts indicate that he was coherent and responsive to medical personnel. Vanderhoef’s emergency room records state that he was “fully verbal,” and that he “verbalized understanding” to instructions given by medical personnel. The records further state that Vanderhoef refused to speak, but would shake his head “yes” or “no,” was “alert,” and had a “normal” neurologic condition. Vanderhoef was later transported to the Milwaukee Behavioral Health Department where he was further evaluated. Reports from that evaluation state that Vanderhoef showed no signs of delirium and was neurologically functional.

Because Vanderhoef refused a test, a warrant was needed; and because the warrant the state obtained was invalid, the blood draw was unlawful and the blood test results must be suppressed.

But the state also subpoenaed Vanderhoef’s medical records, and those records included the results of the test of his urine, which contained metabolites of cocaine. So Vanderhoef moved to “suppress” that test result as a privileged medical record. (¶3). But this was really a motion to “exclude” based on the rules of evidence, not to “suppress” based on a constitutional violation, so his challenge was waived by his plea. (¶¶3 n.2, 21). But he loses on the merits, too:

¶22     Vanderhoef’s medical records are not privileged. Vanderhoef contends that his test results are privileged under Wis. Stat. § 146.81(4), which defines patient health care records…. Vanderhoef contends that the urine test was obtained for diagnostic purposes and is thus not subject to the statutory exception in Wis. Stat. § 905.04(4)(f), which states: “[t]here is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in s. 340.01(1v).”

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¶24     Like our supreme court in [City of Muskego v.] Godec, [167 Wis. 2d 536, 482 N.W.2d 79 (1992)], we note that Wis. Stat. § 146.81(4) “is a general statute when compared to the more specific [Wis. Stat. §] 905.04(4)(f), which concerns tests for intoxication.” See id. 167 Wis. 2d at 546…. “When we compare a general statute and a specific statute, the specific statute takes precedence.” Id. The circuit court’s ruling limited the use of Vanderhoef’s records to a determination of intoxication based on a urine test that tested for intoxicants. That the hospital may have tested for other substances or conditions as well is not relevant under the statute. The statutory language is plain: there is no privilege considering the results or circumstances surrounding chemical tests that test for intoxication, including the test given to Vanderhoef.

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