Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review
Issues (composed by On Point):
1. Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?
2. Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”
This is a fascinating case. It concerns the question raised by Missouri v. McNeely, 133 S.Ct. 1552 (2013), State v. Foster, 2014, 131, 360 Wis. 2d 12, 856 N.W.2d 847, and Birchfield v. North Dakota, 136 S.Ct. 2160 (2016): what constitutes consent to a blood draw? But it addresses that question in a situation where the driver, who has a thick foreign accent, is struggling to ascertain his rights, and the officer cannot understand him. Also, the lower courts’ decisions, which faulted the driver for not “fighting” or “resisting” the blood draw, almost invite obstruction as a way to establish refusal. ¶¶17, 20 .
The officer’s difficulty comprehending Brar is evident from the original video of the interaction between them, from the court reporter’s transcription of the video (she did not hear what the officer claims to have heard), and from an enhanced audio submitted with the Brar’s motion to reconsider the trial court’s denial of suppression.
The officer read Brar the Informing the Accused Form ending with “will you consent to an evidentiary chemical test of your blood?” Brar asked for legal advice. The officer replied “will you submit to the test–yes or no please?” According to the officer, Brar responded in a sentence beginning “of course I don’t want my license . . .” The rest of the sentence was unintelligible but it was followed by the question “what kind of test?” The officer took the alleged “of course” to mean “of’ course I consent to a blood test.” However, the court reporter who transcribed the video never heard the words “of course.” She reported the entire audio as “unintelligible to reporter, unable to make record.” Read the transcript of the enhanced recording here, and you will wonder if the officer was at the same traffic stop as Brar.
Anyway, the resolution of this issue should not, in theory, be difficult. When a suspect contests a search, the State carries the burden of proving consent by clear and positive evidence that the search “was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.” The court must examine the totality of the circumstances, including the characteristics of the suspect, not just the circumstances favoring the State. State v. Padley, 2014 WI App 65, ¶64, 354 Wis. 2d 545, 849 N.W.2d 867. See our post on Padley here. When the suspect does not speak and understand English well, the State’s burden is heavier. See Wayne r. LaFave, 4 Search and Seizure, §8.2(e) n.181 (5th ed.). Furthermore, the State cannot carry its burden by showing mere acquiescence to a claim of lawful authority to conduct a search. Bumper v. North Carolina, 391 U.S. 543, 548-549 (1968). Given these principles, you would think that Brar should win, but he didn’t in the court of appeals.
Regarding the part where the officer indicates that a warrant is not required for a blood test, the court of appeals held that because Brar’s unintelligible answer amounted to consent, the officer was correct in saying that a warrant was not necessary. ¶21.