State v. Donald Marshall, 2002 WI App 73, PFR filed 2/28/02
For Marshall: Richard L. Zaffiro
Issue: Whether, after the OWI arrestee refused consent for a blood draw, the police could then obtain “consent” for the draw by threatening to use physical force.
Holding: Marshall’s argument that § 343.305(9)(a), by providing the exclusive police option for refusal, bans such a threat has been rejected by State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73. ¶¶7-10:
¶12. Thus, because a forcible warrantless blood draw does not violate the Fourth Amendment if the conditions specified in Bohling are satisfied, see State v. Wodenjak, 2001 WI App 216, 10, 247 Wis. 2d 554, 634 N.W.2d 86, applying the rationale of Gibson, we are satisfied that even if an arrestee refuses to submit to a voluntary blood test, an officer may acknowledge the refusal, complete the ‘Notice of Intent to Revoke Operating Privilege’ form as provided by Wis. Stat. § 343.305(9)(a), and then proceed with an involuntary blood test as the basis for the operating a motor vehicle with a prohibited blood alcohol concentration (PAC) charge and in support of the operating a motor vehicle while intoxicated charge.
¶13. However, the following question naturally arises: What is the significance of having the right to refuse voluntary chemical testing, when law enforcement may force testing regardless of consent? … The answer is that a driver who refuses to submit to chemical testing faces certain risks and consequences that are entirely independent from the OWI/PAC offense. … (W)hile the implied consent statute provides an incentive for voluntary chemical testing, i.e., not facing civil refusal procedures and automatic revocation, voluntary testing is not the exclusive means that blood, urine or breath samples may be constitutionally obtained.
Note: Two of the three judges on the panel (Curley and Schudson) say that Gibson conflicts with prior case law, County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), but that as the more recent decision, Gibson must be followed. ¶17. Judge Schudson’s concurrence flatly says that Gibson was wrongly decided and should be overturned by the supreme court. Judge Fine’s concurrence says that Gibson is correct.