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SCOW: Warrantless blood draw was okay; using refusal as aggravating sentencing factor was not

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.

Warrantless blood draw

Police were sent to the scene of a one-car crash around 10 p.m. one evening in December 2013. Dalton was on the roof of the car, the odor of alcohol emanating from him. The car’s passenger told police Dalton had been drinking and was driving the car erratically before the crash. Dalton was unconscious and had to be airlifted to a hospital due to his injuries. The passenger was also injured and was taken to a different hospital. One of the five officers to respond went to the hospital where the passenger was taken, while another went to the hospital where Dalton was being treated. Dalton regained consciousness about two hours after the police were first dispatched, and refused to consent to a blood draw. So police ordered blood drawn without a warrant—and without making any attempt to seek a warrant, despite having probable cause to do so within minutes of responding to the crash and despite the fact the crash happened eight months after Missouri v. McNeely, 569 U.S. 141 (2013), invalidated the idea that dissipation of alcohol by itself created exigency justifying a warrantless blood draw. (¶¶6-18).

The court holds there were exigent circumstances:

¶44     Here the totality of the circumstances amounted to, in the words of the circuit court, a “complicated and fluid situation” and a “chaotic night in Washington County.” Although McNeely establishes that exigent circumstances “may arise in the regular course of law enforcement due to delays from the warrant application process[,]” 569 U.S. at 156, the circumstances with which law enforcement officers were presented in this case went well beyond the “regular course of law enforcement.”

¶45     Events on the evening in question presented the officers with many moving parts that inform our analysis. First, there were two injured people who needed urgent medical attention. A law enforcement officer “who is confronted with an accident scene[] should first attend to the emergency circumstances at hand.” [State v.] Tullberg, [2014 WI 134,] 359 Wis. 2d 421, ¶49[, 857 N.W.2d 120]. The officers’ decision to tend to Dalton and his passenger’s medical needs at the expense of requesting a warrant was certainly reasonable.

¶46     Second, there was a need to examine and secure the scene. An officer’s responsibilities at an accident scene include securing evidence and ensuring the safety of those traveling on the road near and through the scene. State v. Howes, 2017 WI 18, ¶46, 373 Wis. 2d 468, 893 N.W.2d 812. That the safety of passersby would take precedence over applying for a warrant is, again, reasonable.

¶47     Third, it was imperative that law enforcement speak with Dalton’s passenger while events were fresh in his mind. Just as alcohol dissipates in the blood, the memories of witnesses fade. Interviewing witnesses can give officers necessary information to determine whether they have probable cause for a warrant and therefore may be a necessary prerequisite to a warrant application. Accordingly, it was reasonable for Deputy Vanderheiden to drive to the hospital in Menomonee Falls to speak with the passenger before applying for a warrant for Dalton’s blood.

¶48     Finally, the crash at issue here was not the only incident requiring law enforcement attention that evening. Four officers were needed to respond to an accident involving personal injury, a fleeing driver, a vehicle in the middle of the road, and downed power poles. Two others were dispatched to an auto theft. This left two deputies to patrol the entirety of Washington County, one assigned to the northern half and one to the southern half of the 432 square mile county. Given these other incidents, law enforcement’s actions were certainly reasonable under the circumstances.

¶49     This court is not in the business of second-guessing law enforcement’s reasonable allocation of resources in a complex and evolving situation. See U.S. v. Sokolow, 490 U.S. 1, 11 (1989) (explaining that courts do not “indulge in unrealistic second-guessing” of police’s “swift, on-the-spot decisions.”) When presented with multifaceted and chaotic circumstances like those presented here, law enforcement needs flexibility to determine its priorities.

“Complicated and fluid situation.” “Complex and evolving situation.” “Multifaceted and chaotic circumstances.” Whatever the formulation, it’s the new per se exigency.

 Using refusal as a sentencing factor

The circuit court explicitly and definitively used Dalton’s refusal as an aggravating sentencing factor, saying:

The other thing you did is anybody who drives a motor vehicle in Wisconsin impliedly consents to a blood or breath draw after they’re arrested. And you were arrested, and you disregarded that, and you will be punished for that today. You don’t have the right not to consent. And that’s going to result in a higher sentence for you. (¶¶20, 60).

Relying on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), which barred states from making it a crime to refuse a blood draw (but not a breath test), a majority of the court holds that this it was improper to increase Dalton’s sentence–and thus punish him–for exercising his Fourth Amendment right to refuse to consent to a search of his body.

¶57     In Birchfield, the United States Supreme Court considered whether a law making “it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired” violates the Fourth Amendment’s proscription against unreasonable searches and seizures. 136 S. Ct. at 2166- 67. The Court concluded “that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 2186.

¶58     Moving to the final issue in its analysis, the Birchfield court acknowledged that “prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Id. at 2185. Yet, the court emphasized that criminal penalties may not be imposed for a refusal. “It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test.” Id. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” Id.

¶59     In sum, Birchfield dictates that criminal penalties may not be imposed for the refusal to submit to a blood test. 136 S. Ct. at 2185. A lengthier jail sentence is certainly a criminal penalty. .


¶61     Pursuant to the circuit court’s unequivocal sentencing remarks, Dalton was criminally punished for exercising his constitutional right…. Established case law indicates that this is impermissible. Harman v. Forssenius, 380 U.S. 528, 540 (1965); Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.2d 406 (1972) (explaining that “[a] defendant cannot receive a harsher sentence solely because he availed himself of one of his constitutional rights.”); see also Kubart v. State, 70 Wis. 2d 94, 97, 233 N.W.2d 404 (1975) (“A defendant cannot receive a harsher sentence solely because he has availed himself of the important constitutional right of trial by jury.”).

Roggensack and Ziegler (both joined by Gableman) dissent on the sentencing issue. They think the majority misreads Birchfield, which the dissenters say prohibits only the creation of a stand-alone criminal sentence for refusal—something Wisconsin hasn’t done—and not use of the fact of refusal as an aggravating factor for a court to consider in its exercise of sentencing discretion. (¶¶79-87, 102-08). Only the Supreme Court can sort out these disparate readings of Birchfield, and the dissenters ask them to consider doing so by reviewing this case. (¶¶90, 111).

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