The implied consent statute that allows an officer to ask for a driver for a blood sample when the officer lacks probable cause to arrest for OWI but has “reason to believe” the driver committed a traffic violation, § 343.305(3)(ar)2., is not facially unconstitutional. In addition, Padley’s consent to the blood draw in this case was voluntary. Finally, the police had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties.
Padley was the driver of a car involved in an accident with a motorcycle. (¶4). The passenger on the motorcycle was severely injured. (¶5). Based on observations of the accident scene, the police concluded Padley had committed a traffic violation (attempting a U-turn that interfered with other traffic, § 346.33(1m)). (¶¶6-7). Padley was asked to perform field sobriety tests, which showed no sign of impairment. (¶8). She was then asked to provide a blood sample under § 343.305(3)(ar)2., which allows police to ask the operator of a vehicle involved in an accident causing death or great bodily harm to provide a blood or breath sample if they have reason to believe the person violated any state or local traffic law. (¶¶8-9) After being read the “Informing the Accused” form Padley consented to the blood draw, and a test of the blood revealed the presence of a controlled substance. (¶¶1, 10-11).
The court of appeals rejects Padley’s challenges to the constitutionality of § 343.305(3)(ar)2., the voluntariness of her consent, and the trial court’s conclusion there was “reason to believe” she committed a traffic violation.
Constitutionality of § 343.305(3)(ar)2.
Padley makes three constitutional challenges to § 343.305(3)(ar)2. First:
¶42 Padley argues that Wis. Stat. § 343.305(3)(ar)2. is facially unconstitutional because, in all circumstances to which it applies, it requires drivers to submit to searches that violate the reasonableness requirement of the Fourth Amendment. More specifically, Padley argues that § 343.305(3)(ar)2. is unconstitutional because it “authorizes police to take an evidentiary blood sample without suspicion that the blood will contain evidence of a crime  and in the absence of either a warrant or exigent circumstances.” This argument fails because, as explained above [¶¶24-31, 37-40], § 343.305(3)(ar)2. does not authorize searches, it authorizes law enforcement to require a driver to choose between giving actual consent to a blood draw, or withdrawing “implied consent” and suffering implied-consent-law sanctions.
Padley seems to read the statute as allowing police to take a blood sample without a warrant, without exigent circumstances, and without a basis to believe the blood sample will contain evidence of impairment, and she argues that statutory scheme violates Schmerber v. California, 384 U.S. 757 (1966), and Missouri v. McNeely, 133 S.Ct. 1552 (2013). But what the statute actually does is permit a request for a blood sample. If the driver consents, it’s irrelevant for Fourth Amendment purposes that there was no warrant, no exigency, and no basis to believe the sample would provide evidence of a crime; instead, what will matter is whether the consent was voluntary (an issue Padley also raises, as described below). If the driver refuses consent, she will be penalized by license revocation; and should the police proceed to take a sample without consent, then Schmerber and McNeely (which involved nonconsensual blood draws) will apply to any claim that the blood draw violated the Fourth Amendment. (A caveat: The statute also provides that if the driver is unconscious, consent is presumed, and blood may be taken without an actual expression of consent, a scenario the court admits is in “tension” with the case law. This case doesn’t present those facts, so the court doesn’t address the situation. (¶39 n.10).).
The disconnect between what the statute does and Padley’s arguments attacking it vitiates her challenges to the statute, as the court says (¶33). But obscured as it may be by this disconnect and by the Schmerber and McNeely references, there’s a significant issue about both the validity of a driver’s consent under the statute and the constitutionality of the statute. The issue arises from the fact the implied consent law has for a long time applied only to those arrested for OWI, which means the police had probable cause to believe the driver was operating while intoxicated and, therefore, some basis for a search. Thus, if the driver refused to consent, the police could still seek a warrant or conduct a warrantless search based on exigent circumstances (the dissipation of alcohol alone, until McNeely was decided). In this situation, the penalty for refusal is thus a penalty for not agreeing to a search that is “reasonable” insofar as it’s supported by probable cause. But the statute here—which is of recent vintage, having been created by 2009 Wis. Act 163—allows an officer to request a breath or blood sample from someone not yet arrested, when the officer lacks probable cause for either arrest or a search. Unlike the usual implied consent situation, then, if a driver like Padley refuses consent to giving a sample, the police have no recourse; they can’t get a warrant or, alternatively, can’t rely on probable cause plus exigent circumstances. Nonetheless, if the driver refuses consent in this situation, the statute still penalizes her.
This raises the question of whether the state can penalize a person for refusing to consent to an unreasonable search—unreasonable because the lack of probable cause means the state couldn’t have done a search absent the driver’s consent. There’s authority for arguing that it’s impermissible to penalize someone for refusing to consent to an unreasonable search, Camara v. Municipal Court, 387 U.S. 523 (1967) (Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code-enforcement inspection of his personal residence); Jackson v. Gates, 975 F.2d 648, 653 (9th Cir.1992), cert. denied, 509 U.S. 905 (1993) (“[b]ecause the right to be free from unreasonable searches is contained explicitly in the Fourth Amendment, it follows that the right to be free from adverse consequences for refusing to submit to an unreasonable search must also be found there”), or for asserting a constitutional right (here, the right to be free from unreasonable searches), Griffin v. California, 380 U.S. 609, 614 (1965) (prohibiting comment on defendant’s decision not to testify improperly penalized exercise of privilege). But those cases don’t directly address the implied consent scheme, and in any event the court says Padley hasn’t developed this argument (¶71), so a decision on this issue will have to wait for another day.
A final note: If the driver refuses to give a sample, she “may” then be arrested, at which point it seems the person can be asked yet again to provide a sample, § 343.305(3)(a). The court doesn’t comment on this matter, as it’s not raised by the facts of this case. And, if the person is arrested solely because of her refusal under § 343.305(3)(ar)1. or 2., there will be an issue of whether the arrest was supported by probable cause—a fact-specific inquiry, of course, and one not presented by the facts of this case, given that Padley consented.
Second, the statute does not violate the equal protection clause by depriving one class of drivers—those who have been involved in crashes involving serious injuries and who law enforcement have reason to believe have committed traffic violations—of their Fourth Amendment rights without being narrowly tailored to avoid violating those rights. Because the argument is based on the incorrect premise that police may use § 343.305(3)(ar)2. to compel blood draws, as opposed to using it only to present a choice to the suspect, the argument fails:
¶53 It is not true, as Padley contends again in this context, that under Wis. Stat. § 343.305(3)(ar)2., actual “consent is deemed given to take an evidentiary blood sample from the driver.” Put differently, § 343.305(3)(ar)2. does not implicate the right to be free from unreasonable searches in the manner that Padley suggests because it does not permit a law enforcement officer to compel a search of any driver, let alone does the statute compel some classes of drivers and not others to submit to a search. For all classes of drivers covered by the implied consent law, as pertinent to this appeal, any search conducted must be based on a warrant, actual consent, or another exception to the warrant requirement.
Third, the court rejects the claim the statute is unconstitutionally vague for failing require any connection between the traffic violation and the cause of the accident or the possibility of finding evidence of impairment in the driver’s blood. Padley cannot make a constitutional vagueness challenge to § 343.305(3)(ar)2. based on hypothetical facts because her conduct “plainly falls within the prohibition of” statute, even under her own proposed interpretations of the statute, and she does not contend that a First Amendment right is at issue, State v. Smith, 215 Wis. 2d 84, 91, 572 N.W.2d 496 (Ct. App. 1997). (¶¶55-60).
Voluntariness of Padley’s Consent
Padley’s consent to the blood draw was voluntary, as the officer did not give her “false information” by threatening her with an impermissible penalty if she exercised her constitutional right to refuse consent. Having rejected the claim the statute is facially unconstitutional, the court holds that what Padley says is a “threat” is simply a “choice”—”a choice designed to induce, but … a choice nonetheless.” (¶70). And given the validity of the statute, the officer’s statement that a refusal would result in license revocation simply stated the truth, making this case indistinguishable from Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891 (threatening the loss of driving privileges isn’t a coercive measure that invalidates a driver’s consent for Fourth Amendment purposes).
“Reason to Believe” Padley Committed a Traffic Violation
¶77 No Wisconsin appellate court has previously reviewed any application of Wis. Stat. § 343.305(3)(ar)2. Thus, we lack a previous interpretation of the “reason to believe” standard in this context. However, the phrase “reason to believe” has been interpreted in the context of the circumstances under which a law enforcement officer may request a preliminary breath test from a commercial driver. See [County of Jefferson v.] Renz, 231 Wis. 2d [293,] 309[, 780 N.W.2d 63 (1999)]. In Renz, the court interpreted “reason to believe” as requiring only “a minimum of suspicion.” Id. (“There is a great degree of difference between the minimum of suspicion indicated by the language ‘reason to believe’ … and … the degree of proof required to establish probable cause for arrest.”). When the legislature uses the same phrase in two different statutes addressing similar topics, it is a strong indication that “the legislature intended them to have the same meaning in both statutes.” See F.R. v. T.B., 225 Wis. 2d 628, 639, 593 N.W.2d 840 (Ct. App. 1999). Thus, we conclude that the question before us is whether the facts found by the circuit court provided the deputy with a “minimal suspicion” that Padley had committed a traffic violation.
Even accepting Padley’s argument that the circuit court erred in some of its fact-finding, the court concludes there was sufficient evidence to provide “reason to believe” Padley attempted to execute an illegal U-turn. (¶¶78-79).