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Consent to blood draw was voluntary

State v. Eric M. Doule, 2016AP1146-CR, District 3, 2/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The record supports the conclusion that Doule voluntarily consented to a blood draw after he was arrested for OWI.

Doule was uncooperative after he was stopped for speeding and swerving. He continued to be uncooperative during the subsequent blood draw, which took three tries because he tensed up and moved away from the needle the first two times. (¶¶2-6). The court of appeals rejects his claim that he didn’t voluntarily consent to having his blood drawn.

Whether Doule voluntarily consented involves two distinct inquiries: First, did he consent in fact, by words, gestures, or conduct? Second, was his consent voluntary? The first is a question of historical fact, the second a mixed question of fact and law. State v. Artic, 2010 WI 83, ¶¶30, 32, 327 Wis. 2d 392, 786 N.W.2d 430. The court answers both questions against Doule.

¶10      Doule initially argues he never gave consent to the blood draw due to his uncooperative demeanor during the stop as well as his physical actions during the blood draw. The record belies his claim. …. Here, the circuit court found Doule consented to the blood draw upon responding “yes” once [Officer] Vue read to him the Informing the Accused form and that Doule continued to say “yes” when asked about having his blood drawn in the hospital garage. The court was entitled to resolve the credibility dispute that emerged between Vue’s and Doule’s respective testimony in its findings on whether Doule consented. …. Doule does not argue the circuit court’s findings in favor of the State were clearly erroneous.


¶12     Doule … argues his consent was involuntary because he was unwilling to talk to Vue after the traffic stop, he supposedly was “forcibly” taken from his vehicle when it was unlocked by law enforcement, and he indicated through his conduct that he did not want to be seized or arrested. Whether law enforcement seized Doule against his will, however, is largely irrelevant to whether his consent to the blood draw was voluntary. The traffic stop and the arrest are distinct events from the reading of the Informing the Accused form in this case, and Doule offers no legitimate explanation for why his subjective unwillingness to be arrested should negate the voluntariness of his consent to the blood draw. Doule has otherwise never argued that either his seizure or arrest for suspected OWI was constitutionally impermissible or, for that matter, that law enforcement conduct during the stop was otherwise improper.

¶13     We conclude the State, based on the record in this case, established Doule’s consent to the blood draw was voluntary. We do so based on the circuit court’s findings of fact from Vue’s testimony and the video recording. Doule does not argue Vue failed to follow standard OWI protocol when he read the Informing the Accused form. This reading was free of any undue attempts to trick or otherwise threaten Doule into providing a blood draw. Doule may have acted belligerent toward law enforcement throughout this encounter and attempted to steer the reading of the form to unrelated topics, but that does not render his ultimate decision to consent involuntary. Doule’s argument is also undermined by the fact he never mentioned the blood draw on the trip to the hospital and he continued to say “yes” to the blood draw during the two unsuccessful attempts to draw blood in the garage…. By reading the form to Doule and expressly informing him at the conclusion that it was a “yes-or-no question,” Vue accurately informed Doule he could decline the blood draw and face having his driving privileges revoked…. See Wis. Stat. § 343.305(4). We therefore conclude Doule’s voluntary consent to the search validated the blood draw under the Fourth Amendment. ….

Doule also made some arguments about whether his uncooperative conduct was a withdrawal of consent, whether the officer complied with all the § 343.305(4) requirements, and whether the manner of the blood draw was reasonable, but the court finds them undeveloped or forfeited. (¶¶10 n.3, 13 n.5, 14-16).

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