A recent amendment to Wisconsin’s implied consent law authorizes law enforcement to request a blood, breath, or urine sample from a driver involved in an accident that causes death or great bodily harm even if there is no evidence that the driver was impaired by alcohol or a controlled substance. §343.305(3)(ar)2. If the driver refuses, his license is revoked, but he may request a refusal hearing within 10 days. §343.305(9)(a). But as §343.305(9)(a)5, the refusal hearing statute, is currently written the State could not prevail.
Here is the difficulty:
¶5 When the legislature created WIS. STAT. § 343.305(3)(ar)2., it failed to amend the language of the refusal hearing statute. The issues at a refusal hearing relevant to this appeal are statutorily limited to: 1) whether the officer had probable cause to believe the driver was under the influence of alcohol/controlled substance and 2) whether the driver was lawfully placed under arrest for an OWI-related violation.3 See § 343.305(9)(a)5.a. A driver charged under § 343.305(3)(ar)2. should win a refusal hearing under the current statute as alcohol and an arrest for an OWI-related violation are not elements of the charge. See State v. Padley, 2014 WI App 65, ¶66 n.12, 354 Wis. 2d 545, 849 N.W.2d 867.
Blackman was involved in a car accident that injured a bicyclist. Faced with the choice of consenting to a blood draw or refusing and losing his driver’s license, Blackman chose the former and then moved to suppress arguing that his consent was coerced. Here’s what the court of appeals has to say about that:
¶12 The choice Blackman faced on June 22, 2013, was to give or not give a sample of his blood, and the choice was his alone. Had Blackman withdrawn his consent and refused to submit a sample of his blood, then what [Deputy] Abler told him was true—his license would have been statutorily revoked. The fact that Blackman could have prevailed at a refusal hearing due to the legislature’s failure to amend the refusal hearing statute does not transform Blackman’s freely given actual consent under Wisconsin’s implied consent law into a coerced submittal.
If all of this sounds familiar it is because the same issue popped up just 2 years ago in Padley. See our prior post here. The problem is that the deputy gave Blackman a “choice” between losing his license or consenting to an unreasonable search–unreasonable because the deputy had neither the probable cause nor exigent circumstances needed for a blood test. In a footnote, the court of appeals explains that SCOTUS’s recent decision, Birchfield v. North Dakota, 2016 WL 343398, does not apply because it prohibits the State from imposing a criminal penalty upon a driver who refuses chemical tests. Wisconsin imposes only civil penalties (license revocation).
In a concurrence, Judge Hagedorn says “[o]n some level, I am sympathetic with Blackman’s claim.” ¶15. Ultimately it does not matter whether the driver knew that the State can’t, as a matter of law, prevail at the refusal hearing. A defendant is not entitled “to a broad understanding of all his rights before giving consent under the Fourth Amendment,” he says. ¶19 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)).
As the court of appeals points out, this case mirrors Padley. That makes you wonder why the decision is recommended for publication–it doesn’t break any new ground. SCOW denied Padley’s petition for review. Perhaps Blackman will have better luck. Given that SCOW will decide State v. Howes (another case involving our implied consent law) this term, it would make sense to address different facets of the statute at the same time.