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Refusal to submit to blood draw may be used against driver at OWI trial

State v. Dawn J. Levanduski, 2020 WI App 53; case activity (including briefs)

This published decision resolves an issue arguably left open by Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).  The court of appeals holds that when an officer reads Wisconsin’s “Informing the Accused” form to an OWI suspect, and she refuses a blood draw, her refusal can be used against her at her OWI trial.

Section 343.305 is Wisconsin’s implied consent law. Section 343.305(3)(a) says that upon arrest for a violation of §346.63(1) an officer may ask the person to provide a sample of her blood, breath or urine. The officer must read the “Informing the Accused” text from §343.305(4), which says, among other things:

If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court. (Emphasis supplied).

Levanduski argued that using a person’s refusal to submit to a warrantless search violates the 4th Amendment. She also argued that the threat to use her refusal against her was coercion that rendered her ultimate consent to tests involuntary.  She won suppression in the circuit court. The State appealed, and the court of appeals now reverses the suppression decision, noting:

Missouri v. McNeely, 569 U.S. 141, 160-161 (2013) held that “most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.” Opinion, ¶11.

Birchfield, 136 S. Ct. at 2185 held: “Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refused to comply . . . nothing we say here should be read to cast doubt on them.” Opinion, ¶12.

State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120 held that a person cannot suffer a criminal penalty solely because he refused to submit to a blood draw, but it also distinguished between criminal penalties and civil penalties and evidentiary consequences. Opinion, ¶13.

In what might be the longest footnote in court of appeals history the court at n. 6 lists all the cases from other jurisdictions holding that states may impose evidentiary consequences on motorists who refuse to submit to blood draws. Levanduski cites two state cases to the contrary.  What do you think? Is this issue really a slam dunk for the State?

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