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Consent to blood test was valid despite officer’s statement that a warrant wasn’t needed

State v. Navdeep S. Brar, 2015AP1261-CR, District 4, 7/7/16 (one-judge decision; ineligible for publication),petition for review granted 12/19/2016, affirmed, 2017 WI 73 ; case activity (including briefs)

The record supports the circuit court’s conclusion that Brar consented to a blood test after his arrest for OWI and that his consent was voluntary.

After the arresting officer read the Informing the Accused form to Brar, Brar said he didn’t want to have his license revoked. The officer took this to mean Brar was consenting to a test. (¶¶5, 14). While Brar’s statement could be interpreted to mean he was not consenting to a test (because the result would lead to license revocation), it was reasonable for the officer to conclude that Brar was in fact consenting:

¶17     Taking a broader view of the circumstances, the circuit court noted that Brar showed no indications that he fought against having a blood test. Of particular note, the court observed that Brar did not protest or say that he was not consenting to the blood test. The court found Brar’s lack of fight against having his blood drawn consistent with Wood’s testimony that Brar consented to the blood draw.

¶18      Based on the totality of the circumstances [see State v. Padley, 2014 WI App 65, ¶64, 354 Wis. 2d 545, 849 N.W.2d 867], the circuit court reasonably concluded that Brar consented to have his blood drawn and tested for the purpose of determining Brar’s blood alcohol content. ….

The next question is whether Brar’s consent was voluntary. After the officer marked the Informing the Accused form to indicate Brar consented to a test, Brar asked what kind of test would be conducted; when the officer told him they’d draw blood, Brar asked if a blood test required a warrant. The officer shook his head “no.” (¶¶5, 15). Brar argues this tainted the voluntariness of his consent because the officer incorrectly represented his authority to search for and seize Brar’s blood. State v. Giebel, 2006 WI App 239, ¶18, 297 Wis. 2d 446, 724 N.W.2d 402 (“Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent and voluntary consent under the Fourth Amendment.”).

This argument fails for two reasons. First, the circuit court made factual findings that Brar voluntarily consented based on his lack of any resistance to the blood draw. (¶20). Second, the officer was not wrong when he told Brar that a search warrant wasn’t needed because a warrant is unnecessary when the person consents to the blood draw. (¶21).

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