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Defendant’s consent to a PBT was voluntary

State v. Terence S. O’Haire, 2021AP564, District 4, 11/4/21, (i-judge opinion, ineligible for publication); case activity (including briefs)

O’Haire argued that an officer coerced his consent to a PBT , so its results and his refusal to submit to an evidentiary breath test should have been suppressed. The officer told O’Haire that he didn’t have to consent to a PBT, but then the officer threatened to take O’Haire to jail if he refused. When O’Haire hesitated, the officer ordered him to turn around and place his arms behind his back. The court of appeals held that the officer’s threat did not vitiate O’Haire’s consent.

 Consent is voluntary when it is “‘an essentially free and unconstrained choice’” given “in the absence of ‘duress or coercion, either express or implied.’” State v. Blackman, 2017 WI 77, ¶56-57, 377 Wis. 2d 339, 898 N.W.2d 774. To decide whether a defendant’s consent was voluntary, courts consider the totality of the circumstances, including the following non-exclusive factors:

the presence or absence of coercive police tactics such as deception, threats, or intimidation; whether the conditions attending the request to search were congenial, non-threatening, and cooperative, or the opposite; and whether the police advised the defendant or the defendant otherwise knew of the right to refuse to consent to the search. Opinion, ¶18 (citing State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 768 N.W.2d 430 and State v. Phillips, 218 Wis. 2d 180, 198-204, 577 N.W.2d 794 (1998)).

The court of appeals held that the facts known to the officer supported probable cause to arrest O’Haire for OWI. Furthermore, an officer’s expressed intention to take an action that he is legally entitled to take does not “vitiate consent,” if the intention is genuine rather than a pretext to induce consent. Opinion, ¶21 (citing Artic, ¶41).

¶22 . . . Sawyer accurately informed O’Haire of his precise legal situation and the consequences of refusal—that O’Haire had a right to refuse the PBT, and if he did, Sawyer would immediately take him to jail. Given that Sawyer had the lawful authority to arrest O’Haire and every intention to do so, Sawyer’s so-called “threat” does not amount to coercion.

For a case where SCOW found that a driver’s consent to a blood test was coerced, see our post on State v. Adam M. Blackman.


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