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SCOW issues defense win! Deputy misrepresented the consequences of refusing to submit to blood test

Jeremy Perri guests posts on State v. Adam M. Blackman, 2017 WI 77, 7/7/17, reversing a published court of appeals opinion, 2016 WI App 69, 371 Wis. 2d 635, 886 N.W.2d 94; case activity (including briefs)

SCOW suppresses blood test, holding that the statutory Informing the Accused misrepresented the consequences of a refusal, the consent was coerced, and the exclusionary rule is necessary to deter future violations.

Abrahamson’s majority opinion. Blackman’s car collided with a bicyclist, who sustained serious injuries.  While there was reason to believe that Blackman violated a state or local traffic law by failing to yield, and the bicyclist sustained great bodily harm, police had no reason to believe that Blackman was under the influence of intoxicants. ¶15.  Nonetheless, a deputy requested that Blackman submit to a blood draw, which is permissible under Wis. Stat. 343.305(3)(ar)2 even in the absence of indicia of intoxication.  As provided in the standard Informing the Accused information required pursuant to Wis. Stat. §343.305(4), the deputy advised Blackman that “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.” ¶37. Blackman submitted to the blood draw, which showed a blood alcohol concentration of .104.

The provisions of Wis. Stat. §343.305 provide that if a driver involved in an accident that causes death or great bodily harm who police have reason to believe violated a traffic law refuses the blood test, then the consequence is arrest. §343.305(3)(ar)2. If the driver is arrested for failing to take the test under §343.305(3)(ar)2), then an officer can request a sample under §343.305(3)(a). If the driver refuses to give the requested sample under §343.305(3)(a), then the officer would prepare a notice of intent to revoke the driver’s operating privileges. If the driver fails to request a refusal hearing, then his operating privileges would be revoked.

But, if the driver requests a refusal hearing, his license could be revoked only if the state proved that (a) the officer had probable cause to believe the driver was operating “under the influence”; (b) the officer complied with reading the Informing the Accused form per §343.305(4); and (c) the driver refused to permit the blood test. 343.305(9)(a)5. ¶43

The state argued that only (b) and (c) need to be decided when the refusal is under §343.305(3)(ar)2, asserting that the legislature didn’t intend to require probable cause to arrest for an OWI-related offense, and that a mere drafting error occurred in failing to remove that language from the refusal hearing statute §343.305(9)(a)5.   SCOW concludes otherwise – “based on the text of the statute,… the legislature’s failure to amend Wis. Stat. §343.305(9)(a) meant that it did not remove the OWI-related probable cause requirement from a refusal hearing. ¶50

As outlined above, the statutory language for Informing the Accused in the context of a refusal under §343.305(3)(ar)2 misrepresents the consequences of a refusal.   Here, Blackman would have prevailed at a refusal hearing, as the state could not have shown that the officer had probable cause to believe that he was operating “under the influence.” §343.305(9)(a)5. Thus, the proper advisement under §343.305(3)(ar)2 would have been that Blackman’s operating privilege would be revoked only if he failed to request a refusal hearing. ¶38.

Blood draws are searches under the Fourth Amendment, searches need warrants, and warrantless searches are per se unreasonable and unlawful, unless an exception exists. In this case, the state argued that Blackman consented to the blood draw.  The circuit court agreed, but found that the consent was coerced, and therefore not voluntary. ¶54-55. The Supreme Court agreed – Blackman was incorrectly informed that his operating privilege would be revoked if he refused the request, and thus his consent resulted from this misrepresentation by the state. ¶61-63. The blood draw was the product of coercion and was therefore invalid under the Fourth Amendment. ¶66.

As to the remedy – even though the misrepresentation occurred by the officer’s reading the prescribed statutory language, the results of the blood draw are suppressed:

Unless the evidence in the instant case is suppressed, law enforcement officers across the state will continue to read the Informing the Accused form to accuseds in the same situation as Blackman without providing correct information to provide the basis for the accused’s voluntary conduct.”¶73.

Ziegler’s concurrence ( joined by J. Gableman). The concurrence makes five points:
1. The use of “misrepresentation should not be confused with typical misrepresentations made by law enforcement, and should not suggest that any misrepresentation renders a subsequent action to be deemed coerced. ¶88.
2. The opinion should not be read to interpret Wisconsin’s implied consent law. ¶89.
3. There is a factual dispute as to what inferences Blackman might have drawn from information given, and that dispute does not need to be resolved. ¶90.
4. The good faith exception does not apply in this case because the officer inaccurately explained existing law and the error might continue to occur in the future. This is different than when an officer reasonably relied on clear and settled precedent. ¶91.
5. The court shouldn’t opine what the correct advice to Blackman should have been.

Dissent by C.J. Roggensack. The dissent asserts that “the majority opinion overturns legislation that holds those who drive with a prohibited alcohol concentration responsible for the injuries they cause by violating a traffic law when their intoxication is not readily apparent.” ¶95.

The dissent would conclude that the reading of the Informing the Accused form was not sufficient to overcome Blackman’s free will (¶¶117-122); the deputy correctly read the Informing the Accused form to Blackman (¶136); and the deputy read, in good faith, what he believed the statutes required. (¶146).

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