State v. David W. Howes

2017 WI 18

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1870-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
David W. Howes,
Defendant-Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: March 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 20, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: John W. Markson

JUSTICES:
CONCURRED: GABLEMAN, J. joined by ZIEGLER, J. concur
(Opinion filed).
KELLY, J. concurs (Opinion filed).
DISSENTED: ABRAHAMSON, J. joined by BRADLEY, A. W., J. and
KELLY, J. (joining Part II insofar as it
discusses the constitutionality of Wis. Stat. §
343.305 (3) (b)). (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-appellant the cause was argued by Ryan J
Walsh, chief deputy solicitor general, with whom on the brief
was Misha Tseytlin, solicitor general, Brad D. Schimel, attorney
general.

For the defendant-respondent, there was a brief by Mark A.
Eisenberg, Jack S. Lindberg and Eisenberg Law Office, S.C.,
Madison, and oral argument by Mark A. Eisenberg.
 2017 WI 18
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1870-CR
(L.C. No. 2013CF1692)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant, FILED
v. MAR 1 2017
David W. Howes, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.

Appeal from an order of the Circuit Court. Reversed and

cause remanded.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case comes

before us by certification from the court of appeals. David
Howes was charged with operating a vehicle while intoxicated

(OWI) (fourth offense while having a prior OWI within five

years) in violation of Wis. Stat. § 346.63(1)(a) (2013-14)1 and

operating a vehicle with a prohibited alcohol concentration

(PAC) (fourth offense while having a prior PAC within five

1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
 No. 2014AP1870-CR

years) in violation of § 346.63(1)(b) based on analysis of his

blood showing a blood alcohol concentration of 0.11 percent.

¶2 Howes moved to suppress the results of a warrantless

blood draw, arguing that the deputy that arrested Howes lacked

probable cause to do so and, additionally, that the deputy

violated Howes' rights by obtaining a warrantless blood draw.

The circuit court granted Howes' motion to suppress.2 The

circuit court concluded that the deputy had probable cause to

arrest Howes. However, the court reasoned, relying heavily on

State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d

867, that the section of Wisconsin's implied consent statutes

that permits a blood draw from an unconscious individual is

unconstitutional, unless exigent circumstances exist. Because

the circuit court concluded that none existed, it suppressed the

report of Howes' blood alcohol concentration.3

¶3 We conclude that the circuit court correctly

determined that the deputy had probable cause to arrest Howes

for operating a vehicle with a PAC, and that Howes was arrested
prior to obtaining a blood sample. Moreover, based on the

totality of circumstances herein, the deputy's warrantless

search was permissible under the Fourth Amendment of the United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution under the exigent circumstances doctrine that

2
The Honorable John W. Markson of Dane County presided.
3
See Wis. Stat. § 343.305(3).

2
 No. 2014AP1870-CR

relates to the risk of destruction of evidence.4 Stated more

fully, under the totality of circumstances presented herein,

which included a seriously injured, unconscious person, who was

being subjected to medical treatments for his injuries and who

had 0.02 percent as his PAC threshold, a reasonable officer

could have concluded that further delay in drawing Howes' blood

would have led to the destruction of evidence through the

dissipation and dilution of alcohol in Howes' bloodstream.

Therefore, we reverse the order of the circuit court and remand

for further proceedings.

I. BACKGROUND

¶4 At approximately 9:18 p.m. on July 7, 2013, Deputy

Robert Schiro of the Dane County Sheriff's Office received a

call from dispatch indicating that an individual had been in a

motorcycle crash with a deer. Dispatch detailed that the driver

was unconscious. Deputy Schiro arrived at the scene of the

accident and found the deceased deer and the motorcycle in the

middle of the road. The driver of the motorcycle was the
defendant in the present case, David Howes. He was positioned

approximately 40 feet away from the deer and was seriously

4
Because we conclude that the search was reasonable under
the totality of circumstances presented herein, we need not
reach whether Wis. Stat. § 343.305(3)(b) is facially
unconstitutional. See generally, State v. Stoehr, 134 Wis. 2d
66, 70, 396 N.W.2d 177 (1986) ("When this court grants direct
review upon certification, it acquires jurisdiction of the
appeal, which includes all issues, not merely the issues
certified or the issue for which the court accepts the
certification.").

3
 No. 2014AP1870-CR

injured and unconscious. When the deputy arrived, Emergency

Medical Services (EMS) was already attending to Howes.

¶5 At the scene, there were several bystanders situated

near EMS and the ambulance. The deputy unsuccessfully searched

for a witness that had observed the accident. Though

unsuccessful, the deputy testified that an individual approached

him and, referring to Howes, stated he smelled an odor of

intoxicants. As the lone police officer at the scene, the

deputy had multiple responsibilities relating to containing the

accident scene and was unable to obtain the individual's name.

¶6 While EMS continued to attend to Howes, the deputy had

to ensure the safety of those traveling through the accident

scene because a dead deer and a motorcycle were partially

blocking the road. The deputy began to direct traffic lanes

that ran through the scene of the accident. The deputy also

ensured that no one moved the motorcycle and preserved other

evidence relating to the accident. The deputy asked bystanders

to move out of EMS's way. During his investigation, other
officers arrived, and Howes, still unconscious, was transported

to the hospital.

¶7 The deputy then left to go to the hospital to follow

up with Howes. During the drive to the hospital, the deputy

checked Howes' Department of Transportation records. He

testified that his purpose was to confirm that the motorcycle

driver was in fact Howes and to check Howes' driving record. As

a result of this record check, the deputy discovered that Howes
had three prior OWI/PAC convictions. These prior convictions
4
 No. 2014AP1870-CR

signaled to the deputy that Howes had a PAC threshold more

restrictive than the usual 0.08 percent. Specifically, Howes

violated the law if he had operated the motorcycle with a blood

alcohol concentration of as little as 0.02 percent.5

¶8 After the deputy arrived at the hospital, he

immediately spoke with the two Emergency Medical Technicians

(EMTs), who were in the ambulance with Howes as he was

transported to the hospital. The deputy inquired about whether

either of the EMTs had smelled alcohol on Howes' breath. The

deputy testified that the EMT positioned in the ambulance near

Howes' head smelled a "high odor of intox coming from" Howes.

The EMT positioned in the ambulance at Howes' feet did not smell

intoxicants.

¶9 The deputy proceeded to the emergency room in which

medical staff was treating Howes. The deputy testified that

"numerous nurses and medical staff [were] attending to [Howes]

at the time." The ongoing medical treatment prevented the

deputy from approaching Howes. However, one nurse told the
deputy that there was a strong odor of intoxicants in Howes'

room.

¶10 The deputy observed that Howes had not regained

consciousness and that he was intubated to assist his breathing.

The deputy spoke with a physician with regard to Howes' medical

condition. The physician said that Howes was in critical

5
See Wis. Stat. § 340.01(46m)(c).

5
 No. 2014AP1870-CR

condition and possibly had a brain injury. He said that Howes

needed a CT scan to further evaluate his injuries.

¶11 At approximately 10:15 p.m., the deputy arrested Howes

for operating a motor vehicle with a prohibited alcohol

concentration. The deputy testified that he arrested Howes for

the following reasons: (1) three different individuals smelled

an odor of intoxicants emanating from Howes; (2) Howes had a

prohibited alcohol concentration threshold of 0.02 percent due

to his previous drunk-driving convictions; and (3) the crash.

¶12 After arresting Howes, and while Howes was still

unconscious, the deputy read Howes the informing the accused

form. The deputy asked Howes if he would submit to an

evidentiary chemical test of his blood, and Howes did not

respond.6 The deputy then instructed hospital staff to draw a

blood sample to test for alcohol concentration.

¶13 At 11:17 p.m., roughly two hours after the accident

and an hour after the deputy asked hospital staff to draw Howes'

blood, a phlebotomist completed the blood draw. The deputy
testified that the hour delay occurred either because medical

personnel at the hospital were too busy to draw the blood, or

Howes may have had a CT scan during this interim period.7 The

6
The deputy said he took these steps even though Howes was
unconscious because he thought he was legally required to do so.
7
If a CT scan occurred during this period, it would be
consistent with a physician's statement to the deputy shortly
after the deputy arrived at the hospital that Howes needed to
have a CT scan.

6
 No. 2014AP1870-CR

report of the blood test stated that Howes had a 0.11 percent

blood alcohol concentration. This was well in excess of the

0.02 percent prohibited alcohol concentration threshold to which

he was subjected due to his prior drunk-driving convictions.

¶14 Howes was charged with operating a vehicle while

intoxicated (OWI) (fourth offense while having a prior OWI

within five years) in violation of Wis. Stat. § 346.63(1)(a) and

operating a vehicle with a prohibited alcohol concentration

(PAC) (fourth offense while having a prior PAC within five

years) in violation of § 346.63(1)(b). Howes moved to suppress

the report that resulted from the blood draw. The circuit court

granted Howes' motion. First, the circuit court concluded that

the deputy had probable cause to arrest Howes. The court based

its conclusion, in part, on the statements to the deputy by

various individuals indicating that there was a smell of

intoxicants coming from Howes. The court also concluded that

"central to the probable cause determination [was] that this was

a gentleman who had three prior convictions," and was subject to
a PAC threshold of 0.02 percent, rather than 0.08 percent. As

part of this determination, the court found that the deputy had

searched Howes' driving record prior to arresting Howes; and

therefore, he knew that Howes was subject to a PAC threshold of

0.02 percent.

¶15 Next, the circuit court addressed the

constitutionality of Wisconsin's implied consent statute as it

relates to unconscious persons, Wis. Stat. § 343.305(3)(b). The
court concluded that § 343.305(3)(b), which allows withdrawal of
7
 No. 2014AP1870-CR

blood from an unconscious person, is unconstitutional if the

blood draw is done without a warrant or the presence of exigent

circumstances. After finding the statute unconstitutional, the

circuit court, without analysis, concluded that there were no

exigent circumstances presented by this case.

¶16 The State appealed and the court of appeals certified

the case for our review. We now reverse.

II. DISCUSSION

A. Standard of Review

¶17 "Our review of an order granting or denying a motion

to suppress evidence presents a question of constitutional

fact." State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421,

857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327

Wis. 2d 302, 786 N.W.2d 463). "When presented with a question

of constitutional fact, this court engages in a two-step

inquiry." Robinson, 327 Wis. 2d 302, ¶22.

¶18 First, the circuit "court's findings of evidentiary or

historical fact will not be overturned unless they are clearly
erroneous." State v. Richter, 2000 WI 58, ¶26, 235 Wis. 2d 524,

612 N.W.2d 29. Next, we "independently determine whether the

historical or evidentiary facts establish exigent circumstances

sufficient to justify the warrantless" search. Id.

¶19 In the present case, we apply this two-step inquiry to

determine whether the warrantless blood draw was reasonable

under the Fourth Amendment of the United States Constitution and

Article I, Section 11 of the Wisconsin Constitution.

8
 No. 2014AP1870-CR

B. General Principles

¶20 A blood draw is a search of the person. Tullberg, 359

Wis. 2d 421, ¶31 ("A blood draw to uncover evidence of a crime

is a search within the meaning of the Fourth Amendment."). At

issue in the present case is whether the deputy acted reasonably

in instructing hospital personnel to draw Howes' blood when he

did not have a warrant. Accordingly, we must determine whether

the deputy's warrantless search of Howes was permissible under

the Fourth Amendment and Article I, Section 11.

¶21 "The Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution protect the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures." Id., ¶29 (quoting Robinson, 359 Wis. 2d

421, ¶24). "The touchstone of the Fourth Amendment is

reasonableness." Id. (internal quotation marks omitted). As

such, "[t]he Fourth Amendment does not proscribe all state-

initiated searches and seizures; it merely proscribes those
which are unreasonable." Id. (internal quotation marks

omitted). "An action is 'reasonable' under the Fourth

Amendment, regardless of the individual officer's state of mind,

'as long as the circumstances, viewed objectively, justify [the]

action.'" Brigham City, Utah v. Stuart, 547 U.S. 398, 404

(2006) (quoting Scott v. United States, 436 U.S. 128, 138

(1978)).

¶22 Absent from the text of the Fourth Amendment is the
obligation that the government must obtain a warrant to conduct
9
 No. 2014AP1870-CR

a search. However, it is axiomatic that "warrants must

generally be obtained." Missouri v. McNeely, 133 S. Ct. 1552,

1569 (2013) (Roberts, C.J., concurring in part and dissenting in

part). Consistent with these principles, "[a] warrantless

search is presumptively unreasonable." Tullberg, 359 Wis. 2d

421, ¶30.

¶23 To overcome this presumption, a warrantless search

must fall under an exception to the warrant requirement. See

State v. Foster, 2014 WI 131, ¶32, 360 Wis. 2d 12, 856 N.W.2d

847 ("Consistent with the United States Supreme Court's

interpretation of the Fourth Amendment, we have adhered to the

basic principle that warrantless searches are per se

unreasonable unless they fall within a well-recognized exception

to the warrant requirement."). "One exception to the warrant

requirement is the exigent circumstances doctrine, which holds

that a warrantless search complies with the Fourth Amendment if

the need for a search is urgent and insufficient time to obtain

a warrant exists." Tullberg, 359 Wis. 2d 421, ¶30.
¶24 "There are four well-recognized categories of exigent

circumstances . . . 1) hot pursuit of a suspect, 2) a threat to

the safety of a suspect or others, 3) a risk that evidence will

be destroyed, and 4) a likelihood that the suspect will flee."

Richter, 235 Wis. 2d 524, ¶29. The burden is on the government

to establish that its actions fit into one of the well-

recognized exceptions. State v. Phillips, 2009 WI App 179, ¶7,

322 Wis. 2d 576, 778 N.W.2d 157. And, "the test for determining

10
 No. 2014AP1870-CR

the existence of exigent circumstances is an objective one."

Robinson, 327 Wis. 2d 302, ¶30.

¶25 If exigent circumstances are present, we have

distilled four additional requirements that a warrantless blood

draw in a drunk driving case must satisfy to be reasonable under

the Fourth Amendment:

(1) the blood draw is taken to obtain evidence of
intoxication from a person lawfully arrested for a
drunk-driving related violation or crime, (2) there is
a clear indication that the blood draw will produce
evidence of intoxication, (3) the method used to take
the blood sample is a reasonable one and performed in
a reasonable manner, and (4) the arrestee presents no
reasonable objection to the blood draw.
State v. Kennedy, 2014 WI 132, ¶17, 359 Wis. 2d 454, 856 N.W.2d

834 (quoting State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d

399 (1993) abrogated in part by Missouri v. McNeely, 133 S. Ct.

1552 (2013)). We have "explained that probable cause to arrest

for a drunk-driving related violation or crime 'substitutes for

the predicate act of lawful arrest' under the first factor."

Id. (quoting Bohling, 173 Wis. 2d at 534 n.1). "The second

factor, whether there is a clear indication that the blood draw

will produce evidence of intoxication, in this case is also

satisfied by the same facts that support a finding of probable

cause to arrest." Id. (internal quotation marks omitted).

¶26 In the present case, there is no dispute as to the

presence of the third and fourth factors. The blood was drawn

in a reasonable manner; it was taken in a hospital by a person
authorized to draw blood. See State v. Krajewski, 2002 WI 97,

11
 No. 2014AP1870-CR

¶47, 255 Wis. 2d 98, 648 N.W.2d 385 ("Krajewski and the State

stipulated that the blood draw was taken in a hospital by a

registered nurse. Thus, the blood draw was effected in a

reasonable manner."). Similarly, with respect to the fourth

factor, the suspect did not present a reasonable objection to

the type of search the deputy sought to conduct, a blood draw.8

Accordingly, we must examine whether the deputy lawfully

8
An analysis under the fourth factor does not require us to
determine whether an individual consented to a search; instead,
it refers to an objection to the type of search the officer
chose to conduct (e.g., a blood draw as opposed to a
breathalyzer). See State v. Krajewski, 2002 WI 97, ¶48, 255
Wis. 2d 98, 648 N.W.2d 385. As this Court in State v. Kennedy,
2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834 recognized, the
fourth factor is derived from the Supreme Court's decision in
Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the
Supreme Court explained that an analysis under the fourth factor
is reserved for those instances in which an individual has
raised a legitimate and significant objection to having his or
her blood drawn. The Court concluded that the defendant in that
case did not raise a reasonable objection to the blood draw
because the defendant was "not one of the few who on grounds of
fear, concern for health, or religious scruple might prefer some
other means of testing, such as the 'Breathalyzer' test
petitioner refused." Schmerber, 384 U.S. at 771. See also
State v. Krause, 168 Wis. 2d 578, 588, 484 N.W.2d 347 (Ct. App.
1992) ("Krause asserts, however, that his refusal still is
constitutionally protected because he told Officer Dornfeld that
he 'didn't believe in needles' and 'd[id]n't want AIDS.' This
argument fails. These isolated comments do not establish that
Krause is 'one of the few who on grounds of fear, concern for
health, or religious scruple might prefer some other means of
testing' whose wishes the Schmerber Court declined to
address."). Consequently, the fourth factor speaks to the
reasonableness of the type of search employed, not whether a
warrant was required to conduct the search. As such, to say
that Howes made no objection to the type of search is not to say
that Howes impliedly consented to being searched. Each inquiry
is analytically distinct.

12
 No. 2014AP1870-CR

arrested Howes based on probable cause that Howes had driven

with a prohibited alcohol concentration, i.e., 0.02 percent or

higher. Next, we must determine whether exigent circumstances

existed such that the deputy was justified in proceeding without

a warrant.

C. Probable Cause to Arrest

¶27 With respect to the probable cause analysis, the

deputy in this case arrested Howes; therefore, the dispositive

inquiry is whether the deputy had probable cause to conduct this

arrest. We conclude that the deputy had probable cause to

arrest Howes for operation of a vehicle with a prohibited

alcohol concentration under the facts as found by the circuit

court.

¶28 "Warrantless arrests are unlawful unless they are

supported by probable cause." State v. Blatterman, 2015 WI 46,

¶34, 362 Wis. 2d 138, 864 N.W.2d 26. "Probable cause to arrest

... refers to that quantum of evidence within the arresting

officer's knowledge at the time of the arrest that would lead a
reasonable law enforcement officer to believe that the defendant

was operating a motor vehicle [at a prohibited alcohol

concentration]." Id. (quoting State v. Lange, 2009 WI 49, ¶19,

317 Wis. 2d 383, 766 N.W.2d 551). "The burden is on the state

to show [it] had probable cause to arrest." Id. (internal

quotation marks omitted). And, "[w]e evaluate the existence of

probable cause objectively, concerned with whether law

enforcement acted reasonably." Robinson, 327 Wis. 2d 302, ¶26.

13
 No. 2014AP1870-CR

¶29 We look at the "totality of the circumstances to

determine whether probable cause . . . existed." Tullberg, 359

Wis. 2d 421, ¶33. "In dealing with probable cause, . . . as the

very name implies, we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983)

(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

"This standard is case-specific: '[t]he quantum of information

which constitutes probable cause to arrest must be measured by

the facts of the particular case.'" Blatterman, 362 Wis. 2d

138, ¶35 (quoting State v. Paszek, 50 Wis. 2d 619, 625, 184

N.W.2d 836 (1971)).

¶30 A number of factors may be relevant to a determination

of probable cause in the context of an arrest for a drunk-

driving related offense. As we have previously detailed,

"factors sufficient to support a finding of probable cause have

included bloodshot eyes, an odor of intoxicants, and slurred
speech, together with a motor vehicle accident or erratic

driving." Kennedy, 359 Wis. 2d 454, ¶22.

¶31 Additionally, "[p]olice may properly consider prior

convictions in a probable cause determination." Blatterman, 362

Wis. 2d 138, ¶36; see also State v. Goss, 2011 WI 104, ¶24, 338

Wis. 2d 72, 806 N.W.2d 918. "Prior convictions are especially

relevant in this case because the statute reduced the PAC

threshold applicable to [the defendant] from 0.08% to 0.02%
alcohol concentration." Blatterman, 362 Wis. 2d 138, ¶36.
14
 No. 2014AP1870-CR

¶32 In this case, the deputy checked Howes' driving

record, which indicated that Howes had three prior OWI/PAC

convictions. This lowered Howes' PAC threshold to 0.02 percent.

The circuit court properly found this highly relevant in

determining that the deputy had probable cause to arrest Howes.

¶33 Moreover, three people told the deputy that Howes

smelled of intoxicants: (1) an individual at the scene of the

accident; (2) one of the EMTs who rode in the ambulance with

Howes; and (3) a nurse at the hospital. Taken together with the

vehicle accident, these facts were sufficient to provide the

deputy with probable cause to arrest Howes for operating a

vehicle with a prohibited alcohol concentration.

¶34 We note that probable cause in this case developed

over a period of time. At the accident scene, one bystander

mentioned that Howes may have smelled of intoxicants. While on

his way to the hospital, the deputy learned that Howes' PAC

threshold had been lowered to 0.02 percent because of his prior

convictions for OWI/PAC. Then, at the hospital, the deputy
spoke with EMT personnel, one of whom said that Howes smelled of

intoxicants and later he spoke with a nurse who also said that

Howes smelled of intoxicants. At that point, the deputy

reasonably believed that he had probable cause to conclude that

Howes had operated his motorcycle with a prohibited alcohol

concentration of 0.02 percent. He then placed Howes under

arrest. We agree that the deputy had probable cause to believe

that Howes had violated Wis. Stat. § 346.63(1)(b) under the
provisions of Wis. Stat. § 340.01(46m)(c).
15
 No. 2014AP1870-CR

D. Exigent Circumstances

¶35 We next examine whether the warrantless blood draw was

justified by exigent circumstances. To determine if a

warrantless blood draw was permissible under the Fourth

Amendment, we look at the totality of the circumstances and

engage in a "careful case-by-case assessment of exigency."

McNeely, 133 S. Ct. at 1561.

¶36 "Like our analysis of probable cause, the test for

determining the existence of exigent circumstances is an

objective one." Tullberg, 359 Wis. 2d 421, ¶41 (quoting

Robinson, 327 Wis. 2d 302, ¶30). It follows that we give no

weight to the subjective belief of an officer.9 See United

States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000)

(reasoning "a police officer's subjective belief that exigent

circumstances exist is insufficient to make a warrantless

search. Instead, as is normally the case for Fourth Amendment

inquiries, the test is objective . . . ."). Accordingly, we

independently examine the facts known to the officer at the time
of the warrantless search.

¶37 An officer is justified in conducting a warrantless

search to prevent the destruction of evidence. And, "[e]vidence

of a crime is destroyed as alcohol is eliminated from the

bloodstream of a drunken driver." Tullberg, 359 Wis. 2d 421,

¶42. While the natural dissipation of alcohol is not, under all

9
Accordingly, the deputy's testimony that he had time to
obtain a warrant in this case is irrelevant to our analysis.

16
 No. 2014AP1870-CR

circumstances, an exigent circumstance sufficient to allow an

officer to conduct a warrantless blood draw, there are

situations in which the totality of the circumstances would

justify such a search. "[A] warrantless blood draw [need not]

always require a 'now or never' situation in order to be

justified by exigent circumstances. Rather, exigent

circumstances justify a warrantless blood draw if delaying the

blood draw would 'significantly undermin[e] [its] efficacy.'"

Id., ¶50 (quoting McNeely, 133 S. Ct. at 1561); cf. State v.

Parisi, 2016 WI 10, ¶40, 367 Wis. 2d 1, 875 N.W.2d 619 ("Under

the circumstances, Officer Fenhouse might reasonably have feared

that if he attempted to obtain a warrant before drawing Parisi's

blood, Parisi's condition could again lapse, causing Officer

Fenhouse to miss his window of opportunity.").

¶38 The United States Supreme Court's decision in

Schmerber v. California, 384 U.S. 757 (1966), illustrates a

circumstance in which a warrantless blood draw in the context of

a drunk-driving offense is reasonable. In Schmerber, an
individual was "arrested at a hospital while receiving treatment

for injuries suffered in an accident involving the automobile

that he had apparently been driving." Id. at 758. Without

obtaining a warrant, the officer instructed a physician at the

hospital to draw the defendant's blood. Id. "The chemical

analysis of this sample revealed a percent by weight of alcohol

in his blood at the time of the offense which indicated

intoxication, and the report of this analysis was admitted in
evidence at the trial." Id. at 759. The defendant objected to
17
 No. 2014AP1870-CR

the admission of the report and contended, in part, that these

results "should be excluded from evidence as the product of an

unlawful search and seizure in violation of the Fourth and

Fourteenth Amendments." Id. at 766.

¶39 The United States Supreme Court rejected the

defendant's contention that the warrantless blood draw was

unreasonable and concluded that the officer's search was

justified by exigent circumstances. Id. at 770. The Court, in

part, premised its decision on the defendant's injuries that had

delayed the officer's ability to secure a blood draw from the

defendant. Specifically, the Court reasoned:

We are told that the percentage of alcohol in the
blood begins to diminish shortly after drinking stops,
as the body functions to eliminate it from the system.
Particularly in a case such as this, where time had to
be taken to bring the accused to a hospital and to
investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant.
Given these special facts, we conclude that the
attempt to secure evidence of blood-alcohol content in
this case was an appropriate incident to petitioner's
arrest.
Id. at 770-71. Consequently, the Court surmised that "[t]he

officer . . . might reasonably have believed that he was

confronted with an emergency, in which the delay necessary to

obtain a warrant, under the circumstances, threatened the

destruction of evidence." Id. (internal quotation marks

omitted).

¶40 Following Schmerber, the Supreme Court in McNeely

reaffirmed the principle that dissipation of alcohol from the
blood stream may lead to the destruction of evidence, and

18
 No. 2014AP1870-CR

therefore constitute an exigent circumstance sufficient to

justify a warrantless blood draw. McNeely, 133 S. Ct. at 1560

(reasoning, "our analysis in Schmerber fits comfortably within

our case law applying the exigent circumstances exception.").

The Court clarified that its decision in Schmerber was not

predicated solely on the natural dissipation of alcohol from the

bloodstream; rather, there were "special facts" that made the

blood draw reasonable under the totality of circumstances

present in Schmerber. Id. These "special facts" were that the

defendant was injured and in the hospital, and that the officer

had to investigate the scene of the accident. The Court

reasoned,

Regardless of the exact elimination rate, it is
sufficient for our purposes to note that because an
individual's alcohol level gradually declines soon
after he stops drinking, a significant delay in
testing will negatively affect the probative value of
the results. This fact was essential to our holding
in Schmerber, as we recognized that, under the
circumstances, further delay in order to secure a
warrant after the time spent investigating the scene
of the accident and transporting the injured suspect
to the hospital to receive treatment would have
threatened the destruction of evidence.
Id. at 1560-61. These facts made the officer's need to draw

blood more urgent and, given this urgency, the officer's actions

were justified under the exigent circumstances doctrine. Id. at

1560 ("We added that '[p]articularly in a case such as this,

where time had to be taken to bring the accused to a hospital

and to investigate the scene of the accident, there was no time

19
 No. 2014AP1870-CR

to seek out a magistrate and secure a warrant.'" (quoting

Schmerber, 384 U.S. at 770-71).

¶41 Moreover, we note that our decision is consistent with

the Supreme Court's narrow holding in McNeely that dissipation

of alcohol from the bloodstream, standing alone, does not always

constitute an exigent circumstance. The Supreme Court in

McNeely did not simultaneously create that which it sought to

eradicate. Stated otherwise, McNeely did not create a per se

rule that a warrantless blood draw based on the natural

dissipation of alcohol from the blood stream is never

reasonable. Id. at 1568 ("The relevant factors in determining

whether a warrantless search is reasonable, including the

practical problems of obtaining a warrant within a timeframe

that still preserves the opportunity to obtain reliable

evidence, will no doubt vary depending upon the circumstances in

the case.").

¶42 Instead, the Court in McNeely validated the foundation

of its decision in Schmerber; specifically, dissipation of
alcohol from the bloodstream may justify an officer's

warrantless blood draw. The Court in McNeely went so far as to

recognize that delay in obtaining a warrant, even without the

presence of extraneous factors, may justify a warrantless blood

draw. The Court stated, "an individual's alcohol level

gradually declines soon after he stops drinking, a significant

delay in testing will negatively affect the probative value of

the results." Id. at 1561; see also id. at 1568 ("No doubt,
given the large number of arrests for this offense in different
20
 No. 2014AP1870-CR

jurisdictions nationwide, cases will arise when anticipated

delays in obtaining a warrant will justify a blood test without

judicial authorization, for in every case the law must be

concerned that evidence is being destroyed.").

¶43 As is evident from the Court's analysis in Schmerber

and McNeely, certain facts are particularly relevant to an

exigent circumstances analysis in drunk-driving cases. Whether

an officer was delayed in obtaining a blood draw due to the

defendant's medical condition is one such fact. Additionally,

whether the officer was delayed because time had to be taken to

investigate the scene of the accident is also highly relevant.

See Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

("On the specific facts of [Schmerber], where time had already

been lost taking the driver to the hospital and investigating

the accident, the Court found no Fourth Amendment violation even

though the warrantless blood draw took place over the driver's

objection.").

¶44 The Minnesota Supreme Court, relying on these factors,
concluded that exigent circumstances justified a search under

circumstances similar to that of Schmerber. See Minnesota v.

Stavish, 868 N.W.2d 670, 676-77 (Minn. 2015). In Stavish, the

Minnesota Supreme Court concluded that, under the totality of

circumstances, a warrantless blood draw of a hospitalized

individual was justified by exigent circumstances. The Court

reasoned, "Stavish's medical condition and need for treatment

rendered his future availability for a blood draw uncertain.
[The officer] did not know how long Stavish was likely to remain
21
 No. 2014AP1870-CR

at the same hospital or whether further medical care would

preclude obtaining a sample even if Stavish stayed at the same

hospital." Id. at 678. As a result, "it was objectively

reasonable for [the officer] to conclude that he was faced with

an emergency in which the delay necessary to obtain a warrant

threatened the destruction of evidence." Id.

¶45 The circumstances of a critically injured driver who

needed immediate medical care that justified the warrantless

blood draw in Schmerber and Stavish are present in the case at

hand. And in addition, Howes' prohibited alcohol concentration

threshold of 0.02 percent increased the need for a prompt blood

draw. Dissipation or dilution of alcohol in his bloodstream due

to the passage of time and medical treatments threatened the

State's ability to prove the crime for which he was arrested.

This is so because "[a]lcohol dissipates from the bloodstream at

a rate of 0.01 percent to 0.025 percent per hour." McNeely, 133

S. Ct. at 1570-71 (Roberts, C.J., concurring in part and

dissenting in part) (citing Richard Stripp, Forensic and
Clinical Issues in Alcohol Analysis, in Forensic Chemistry

Handbook 440 (Lawrence Kobilinsky ed., 2012)). If Howes

violated his restricted PAC with a blood alcohol concentration

of 0.02 percent, it would take approximately an hour for Howes'

blood alcohol level to go to 0.00 percent. This is roughly the

amount of time that elapsed between Howes' accident and the time

in which the deputy first had probable cause necessary to obtain

a warrant. As each minute passed, the likelihood that Howes'
blood alcohol level would diminish to 0.00 percent increased
22
 No. 2014AP1870-CR

significantly. At 0.00 percent, it would be impossible to

calculate what his blood alcohol level was at the time of the

accident.

¶46 In addition, similar to the officer in Schmerber, the

deputy's responsibilities at the accident scene led to a

significant delay in the ability of the deputy to obtain a blood

draw. For example, he was required to secure evidence relating

to the accident and ensure the safety of those traveling on

roads through the scene of the accident. The investigation of

the accident took time. During this time, reliable evidence of

Howes' blood alcohol concentration was being destroyed by the

passage of time and treatment at the hospital.10

¶47 Furthermore, akin to the defendant in Schmerber, Howes

was in critical condition. The severity of Howes' condition

made the deputy's ability to obtain a blood draw in the future

uncertain. This uncertainty was exacerbated because at least

one hour already had passed since the accident and the deputy

had no knowledge about the time at which Howes stopped drinking.
¶48 Howes was unconscious, and it was unknown whether he

had suffered brain damage. Importantly, a physician indicated

10
Howes was in critical condition that required additional
testing, intubation to support his respiration. He had been
given medication resulting in "heavy sedation," and because he
was unconscious, he must have received this medication
intravenously.

23
 No. 2014AP1870-CR

that Howes would need a CT scan.11 The deputy could reasonably

have concluded that waiting for a CT scan before obtaining a

blood draw would "significantly undermin[e] the efficacy" of the

blood analysis to prove Howes violated his PAC threshold of 0.02

percent. See Tullberg, 359 Wis. 2d 421, ¶50 n.26 (quoting

McNeely, 133 S. Ct. at 1561).

¶49 Additionally, as we have explained, the deputy did not

have probable cause to arrest Howes until he arrived at the

hospital, talked with EMTs and talked with the nurse who told

him that she also smelled alcohol. Accordingly, the present

case is not one in which the officer could have obtained a

warrant on the way to the hospital because he did not have

probable cause to obtain a warrant then. Applying for a warrant

after his conversations with Howes' care-givers would have led

to additional delay and the further dissipation of alcohol from

Howes' bloodstream. See id., 359 Wis. 2d 421, ¶48 n.25 ("We

note that Deputy Hoffman could not have had other officers

assist him in obtaining a warrant while he investigated the
accident because he did not have probable cause to have

Tullberg's blood drawn until immediately before it was drawn.").

¶50 Accordingly, we conclude that the warrantless blood

draw from Howes was permissible under the Fourth Amendment of

11
The deputy asked hospital staff to conduct a blood draw,
but they were unable to draw Howes' blood until roughly an hour
after the deputy's request. This passage of time is further
evidence that the deputy needed to request a blood draw
immediately.

24
 No. 2014AP1870-CR

the United States Constitution and Article I, Section 11 of the

Wisconsin Constitution because under the totality of

circumstances the exigent circumstance of destruction of

evidence existed.

III. CONCLUSION

¶51 We conclude that the circuit court correctly

determined that the deputy had probable cause to arrest Howes

for operating a vehicle with a PAC, and that Howes was arrested

prior to obtaining a blood sample. Moreover, based on the

totality of circumstances herein, the deputy's warrantless

search was permissible under the Fourth Amendment of the United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution under the exigent circumstances doctrine that

relates to the risk of destruction of evidence. Stated more

fully, under the totality of circumstances presented herein,

which included a seriously injured, unconscious person, who was

being subjected to medical treatments for his injuries and who

had 0.02 percent as his PAC threshold, a reasonable officer
could have concluded that further delay in drawing Howes' blood

would have led to the destruction of evidence through the

dissipation and dilution of alcohol in Howes' bloodstream.

Therefore, we reverse the order of the circuit court and remand

for further proceedings.

By the Court.—The order of the circuit court is reversed

and the cause is remanded for further proceedings consistent

with this opinion.

25
 No. 2014AP1870-CR.mjg

¶52 MICHAEL J. GABLEMAN, J. (concurring in the

judgment). I agree that the blood draw here was a permissible

warrantless search under the Fourth Amendment, and I concur in

the mandate of the court. However, rather than addressing this

case as one of exigent circumstances, I would decide the

question certified to us by the court of appeals: whether

provisions in Wisconsin's implied consent law authorizing a

warrantless blood draw from an unconscious driver based on the

driver's implied consent are unconstitutional under the Fourth

Amendment to the United States Constitution.

¶53 Wisconsin's implied consent law, Wis. Stat. § 343.305,

provides notice to all drivers that when they operate a motor

vehicle in this state, they are deemed to have consented to

blood, breath, or urine testing for the presence of alcohol or

controlled substances, § 343.305(2),1 if and when such testing is

1
Wis. Stat. § 343.305(2) provides, in full:

IMPLIED CONSENT. Any person who is on duty time with
respect to a commercial motor vehicle or drives or
operates a motor vehicle upon the public highways of
this state, or in those areas enumerated in s. 346.61,
is deemed to have given consent to one or more tests
of his or her breath, blood or urine, for the purpose
of determining the presence or quantity in his or her
blood or breath, of alcohol, controlled substances,
controlled substance analogs or other drugs, or any
combination of alcohol, controlled substances,
controlled substance analogs and other drugs, when
requested to do so by a law enforcement officer under
sub. (3)(a) or (am) or when required to do so under
sub. (3)(ar) or (b). Any such tests shall be
administered upon the request of a law enforcement
officer. The law enforcement agency by which the
(continued)
1
 No. 2014AP1870-CR.mjg

required by a law enforcement officer under certain

circumstances, including when the driver is arrested for one of

certain enumerated intoxicated-driving offenses, § 343.305(3).2

It further provides that a driver "who is unconscious or

otherwise not capable of withdrawing consent is presumed not to

have withdrawn consent" and a test may therefore be

administered. See § 343.305(3)(ar)-(b).3

officer is employed shall be prepared to administer,
either at its agency or any other agency or facility,
2 of the 3 tests under sub. (3)(a), (am), or (ar), and
may designate which of the tests shall be administered
first.
2
Wis. Stat. § 343.305(3)(a) provides, in relevant part:

Upon arrest of a person for violation of s. 346.63(1),
(2m) or (5) or a local ordinance in conformity
therewith, or for a violation of s. 346.63(2) or (6)
or 940.25, or s. 940.09 where the offense involved the
use of a vehicle, or upon arrest subsequent to a
refusal under par. (ar), a law enforcement officer may
request the person to provide one or more samples of
his or her breath, blood or urine for the purpose
specified under sub. (2).

Subsection (3)(am) includes similar provisions that apply when
the "officer detects any presence of alcohol . . . on a person
driving or operating or on duty time with respect to a
commercial motor vehicle or has reason to believe the person is
violating or has violated s. 346.63(7)."
3
Wis. Stat. § 343.305(3)(ar)1. applies if "a person is the
operator of a vehicle that is involved in an accident that
causes substantial bodily harm, as defined in s. 939.22(38), to
any person, and a law enforcement officer detects any presence
of alcohol, a controlled substance, a controlled substance
analog or other drug, or a combination thereof." Subsection
(3)(ar)2. applies if "a person is the operator of a vehicle that
is involved in an accident that causes the death of or great
bodily harm to any person and the law enforcement officer has
reason to believe that the person violated any state or local
traffic law." Both provisions provide that a "person who is
(continued)
2
 No. 2014AP1870-CR.mjg

¶54 In this case, a warrantless blood draw was taken from

the defendant, David W. Howes, while he was unconscious. Howes

had been involved in a motorcycle accident with a deer, and he

was found injured, unconscious, and smelling of alcohol. Howes

was still unconscious when a sheriff's deputy later arrested him

at the hospital on suspicion of drunk driving. Following the

procedures set forth in the implied consent law, the deputy

asked the hospital to take a blood sample from Howes,4 and the

test results revealed the presence of a prohibited alcohol

concentration. Howes was charged with operating a motor vehicle

while intoxicated, in violation of Wis. Stat. § 346.63(1)(a),

unconscious or otherwise not capable of withdrawing consent is
presumed not to have withdrawn consent under this subdivision
and one or more samples specified in par. (a) or (am) may be
administered to the person." Wis. Stat. § 343.305(3)(ar)1.-2.

Additionally, Wis. Stat. § 343.305(3)(b) provides, in full:

A person who is unconscious or otherwise not capable
of withdrawing consent is presumed not to have
withdrawn consent under this subsection, and if a law
enforcement officer has probable cause to believe that
the person has violated s. 346.63(1), (2m) or (5) or a
local ordinance in conformity therewith, or
s. 346.63(2) or (6) or 940.25, or s. 940.09 where the
offense involved the use of a vehicle, or detects any
presence of alcohol, controlled substance, controlled
substance analog or other drug, or a combination
thereof, on a person driving or operating or on duty
time with respect to a commercial motor vehicle or has
reason to believe the person has violated
s. 346.63(7), one or more samples specified in
par. (a) or (am) may be administered to the person.
4
This situation was governed by Wis. Stat. § 343.305(3)(b),
because the deputy had probable cause to believe Howes was
guilty of operating a motor vehicle with a prohibited alcohol
concentration, in violation of Wis. Stat. § 346.63(1)(b).

3
 No. 2014AP1870-CR.mjg

and operating a motor vehicle with a prohibited alcohol

concentration, in violation of § 346.63(1)(b).

¶55 The circuit court suppressed the test results, ruling

that subsections (3)(ar) and (3)(b) of the implied consent law

are facially unconstitutional under the Fourth Amendment to the

extent they authorize warrantless testing of unconscious drivers

in the absence of exigent circumstances.5 The circuit court

rejected the argument that Howes consented, concluding that

"[t]here can be no consent in the constitutional sense where

somebody is unconscious and incapable of giving consent." The

State appealed, and the court of appeals certified the case to

this court pursuant to Wis. Stat. § (Rule) 809.61.

¶56 On appeal, Howes takes the position that the circuit

court was correct to find the unconscious-driver provisions

facially unconstitutional.6 Howes argues that, absent an

established exception to the Fourth Amendment's warrant

requirement, officers must obtain a warrant before ordering a

5
I will refer to these provisions collectively as the
"unconscious-driver provisions" of the implied consent law.
6
This case also presents an as-applied challenge to the
statute, but Howes does not develop any distinct argument to
support his as-applied challenge. Rather, he states that his
challenge is "as-applied only insofar as his Fourth Amendment
rights were personally violated by the State's conduct under the
general auspices of the provisions in question when the blood
draw was performed." Howes "does not believe that any variation
in the circumstances (except for the crucial one——
incapacitation, which brings him within the purview of the
provision in the first place) would materially affect the
analysis." Therefore, if the unconscious-driver provisions can
be constitutionally applied, Howes does not dispute that they
were constitutionally applied to him.

4
 No. 2014AP1870-CR.mjg

blood test of a driver who is unconscious or otherwise not

capable of withdrawing consent. Howes further argues that the

statutory provisions authorizing blood tests of such drivers

based on their implied consent create an unreasonable per se

exception to the warrant requirement.

¶57 I conclude that Howes has not met his burden of

proving beyond a reasonable doubt that the unconscious-driver

provisions of the implied consent law are unconstitutional.

Voluntary consent to testing may be implied from the conduct of

driving with notice of the conditions of Wisconsin's implied

consent law, and such consent continues unless it is revoked.

Therefore, I conclude that the circuit court erred in striking

down the statute as facially unconstitutional and in suppressing

the results of the blood test.

¶58 I begin with the applicable standard of review and

with a general overview of Wisconsin's implied consent law,

focusing on the challenged unconscious-driver provisions. I

then apply the principles of the Fourth Amendment to the
unconscious-driver provisions in light of Howes' argument that

they are facially unconstitutional.

I. STANDARD OF REVIEW

¶59 Whether a statute is constitutional is a question of

law that this court reviews de novo. Dane Cty. DHS v. P.P.,

2005 WI 32, ¶14, 279 Wis. 2d 169, 694 N.W.2d 344. Statutes are

presumed to be constitutional. Aicher ex rel. LaBarge v. Wis.

Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613
N.W.2d 849. "The court indulges every presumption to sustain

5
 No. 2014AP1870-CR.mjg

the law if at all possible, and if any doubt exists about a

statute's constitutionality, we must resolve that doubt in favor

of constitutionality." Id. The burden is on the challenger to

"prove that the statute is unconstitutional beyond a reasonable

doubt." State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665

N.W.2d 328. Here, because Howes presents his argument as a

facial challenge to the unconscious-driver provisions, the

burden is on him to prove beyond a reasonable doubt that the

statute "cannot be constitutionally enforced under any

circumstances." See Society Ins. v. LIRC, 2010 WI 68, ¶26, 326

Wis. 2d 444, 786 N.W.2d 385 (citing State v. Wood, 2010 WI 17,

¶13, 323 Wis. 2d 321, 780 N.W.2d 63).

II. OVERVIEW OF WISCONSIN'S IMPLIED CONSENT LAW

¶60 Wisconsin's implied consent law was first enacted in

1969 and is codified at Wis. Stat. § 343.305. "The purpose

behind the implied consent law is to combat drunk driving by

'facilit[ating] the gathering of evidence against drunk

drivers.'" State v. Piddington, 2001 WI 24, ¶17, 241
Wis. 2d 754, 623 N.W.2d 528 (quoting State v. Neitzel, 95

Wis. 2d 191, 203, 289 N.W.2d 828 (1980)). Like every one of our

forty-nine sister states, Wisconsin has chosen to combat the

problem of drunken and impaired driving by enacting an implied

consent law, such that consenting to testing has long been "a

condition of the privilege of operating a motor vehicle upon

state highways." State v. Zielke, 137 Wis. 2d 39, 48, 403

N.W.2d 427 (1987).

6
 No. 2014AP1870-CR.mjg

¶61 The implied consent law provides that a driver is

deemed to have consented, in certain circumstances, to testing

of his or her blood, breath, or urine for the presence of

alcohol or other controlled substances. Wis. Stat.

§ 343.305(2). Specifically, it provides that anyone who "drives

or operates a motor vehicle upon the public highways of this

state" is "deemed" to have consented to testing when required by

a law enforcement officer under the specific circumstances

enumerated in the statute. Id.

¶62 Although the statute acknowledges that a person may

withdraw consent and refuse to submit to testing, a driver has

no statutory or constitutional right to refuse without

consequences. See State v. Crandall, 133 Wis. 2d 251, 255-56,

394 N.W.2d 905 (1986). Nor does the statute provide that

officers must ask drivers whether they want to refuse testing.

"This statutory scheme does not contemplate a choice, but rather

establishes that a defendant will suffer the consequences of

revocation should he refuse to submit to the test after having
given his implied consent to do so." Milwaukee Cty. v.

Proegler, 95 Wis. 2d 614, 624, 291 N.W.2d 608 (Ct. App. 1980).

¶63 The occasions on which drivers are deemed to have

consented to testing are limited to particular circumstances

where the legislature has decided that such testing is necessary

to combat intoxicated driving and to protect public safety. See

Piddington, 241 Wis. 2d 754, ¶42 ("The implied consent law is

based upon the legitimate government interest of protecting the
public welfare, to wit, removing drunk drivers from the road."

7
 No. 2014AP1870-CR.mjg

(citing Proegler, 95 Wis. 2d at 631)). For example, a driver is

deemed to have consented to testing upon arrest, but only if the

offense for which the driver is arrested is one of certain

enumerated intoxicated-driving offenses under Wis. Stat.

§ 346.63 or certain other offenses involving injury or homicide

by intoxicated use of a vehicle. See Wis. Stat.

§ 343.305(3)(a). If none of the statutory circumstances exist,

testing pursuant to the implied consent law is not permitted,

though officers may still procure evidence through "any other

lawful means." § 343.305(3)(c).

III. THE UNCONSCIOUS-DRIVER PROVISIONS

¶64 The unconscious-driver provisions of the implied

consent law provide that, under certain circumstances, a driver

"who is unconscious or otherwise not capable of withdrawing

consent is presumed not to have withdrawn consent." See Wis.

Stat. § 343.305(3)(ar)-(b). Provided the other relevant

statutory conditions are met, law enforcement may presume that

an unconscious driver consents to the tests that are set forth
in the statute, unless consent is revoked. The statute contains

no requirement that any driver, whether conscious or not, must

expressly consent to testing; consent is deemed to have been

given when the person voluntarily chose to drive on Wisconsin

highways. See § 343.305(2).

¶65 Indeed, the informational statement that officers must

read to a driver before administering the test is a notice of

the consequences of refusal, not a "request" for consent. See
Wis. Stat. § 343.305(4). The purpose of this notice is to

8
 No. 2014AP1870-CR.mjg

advise drivers about the nature of their implied consent, not

necessarily to provide a meaningful opportunity to decide

whether to withdraw their consent. See Piddington, 241

Wis. 2d 754, ¶¶17, 20, 55 (holding that an analysis of the

proper administration of the notice focuses on the objectively

reasonable conduct of the officer, not "[w]hether the accused

driver has actually comprehended the warnings"). "The entire

tenor of the implied consent law is . . . that consent has

already been given . . . ." Neitzel, 95 Wis. 2d at 203.

¶66 To summarize, the unconscious-driver provisions of the

implied consent law put every driver on notice that, in the

event he or she becomes unconscious and, for example, an officer

has probable cause to believe the driver is guilty of a drunk-

driving offense, the driver's previously given consent would

remain unrevoked. I turn now to the question of whether Howes

has met his burden to prove beyond a reasonable doubt that these

provisions are unconstitutional.

IV. APPLICABLE FOURTH AMENDMENT PRINCIPLES
¶67 The Fourth Amendment to the United States Constitution

guarantees the "right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures." U.S. Const. amend. IV. Courts will

presume that a search was unreasonable if the officers did not

have a warrant, but "[i]t is well established that a search is

reasonable when the subject consents." Birchfield v. N. Dakota,

136 S. Ct. 2160, 2185 (2016). Specifically in the context of
state implied consent laws, the Supreme Court has emphasized

9
 No. 2014AP1870-CR.mjg

that "consent to a search need not be express but may be fairly

inferred from context." Id. This court has likewise recognized

that "[c]onsent to search need not be given verbally; it may be

in the form of words, gesture, or conduct." State v. Phillips,

218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998).

A. Consent May Be Implied By Conduct

¶68 The principle of consent by conduct is neither new nor

infrequently applied. In his treatise on the Fourth Amendment,

Professor Wayne LaFave provides a number of examples in which

"it is said that consent is 'implied' because it is found to

exist merely because of the person's conduct in engaging in a

certain activity." 4 Wayne R. LaFave, Search and Seizure

§ 8.2(l), at 162-63 (5th ed. 2012). For example, "a warrantless

search of a person seeking to enter a military base may be

deemed reasonable based on the implied consent of the person

searched," Morgan v. United States, 323 F.3d 776, 778 (9th Cir.

2003), and consent "may be implied from [the] act of driving

past the guard shack and onto [the base] and imputed from the
posted notice indicating that entry onto [the base] constituted

consent to a search," State v. Torres, 262 P.3d 1006, 1022

(Haw. 2011). Another analogous situation concerns a "business

owner in a highly regulated or licensed industry" who "in effect

consents to the restrictions put in place by the government."

10
 No. 2014AP1870-CR.mjg

United States v. Hamad, 809 F.3d 898, 905 (7th Cir. 2016).7

Similarly, some courts have justified airport screening searches

based on implied consent, reasoning that "[t]he signs in the

terminal gave [passengers] fair notice that if in the course of

the total screening process a physical inspection of [their]

hand luggage should be considered necessary . . . [they] could

be required to submit to it . . . ." United States v. DeAngelo,

584 F.2d 46, 47-48 (4th Cir. 1978); see State v. Hanson, 34 P.3d

1, 4-7 (Haw. 2001) (collecting cases).8

B. The Limits of Implying Consent By Conduct

¶69 Of course, there must be a limit to the scope of the

consent that may be implied by a person's conduct. See

Birchfield, 136 S. Ct. at 2185. Consent "cannot be said to

exist merely because a person (a) knows that an official

intrusion into his privacy is contemplated if he does a certain

thing, and then (b) proceeds to do that thing." LaFave, supra,

at 164-65 (emphasis added). A reviewing court must also

7
Although the cases involving warrantless inspections of
highly regulated businesses do not rely on consent as the basis
for the reasonableness of such searches, the rationale in those
cases is analogous in that the inspections are reasonable in
part because a business owner chooses to enter the regulated
field and the government regulations supply notice of the scope
and frequency of inspections. See United States v. Biswell, 406
U.S. 311, 316 (1972).
8
Some more recent decisions hold that consent is not
required at all in the airport screening context, because such
searches are reasonable under the administrative search
doctrine. See, e.g., United States v. Aukai, 497 F.3d 955, 960
(9th Cir. 2007); United States v. Hartwell, 436 F.3d 174, 178-81
(3d Cir. 2006).

11
 No. 2014AP1870-CR.mjg

consider the scope and the voluntariness of the individuals'

consent under the particular implied consent scheme presented.

See, e.g., Birchfield, 136 S. Ct. at 2186 (remanding to state

court to revisit voluntariness of consent, in light of holding

that "motorists cannot be deemed to have consented to submit to

a blood test on pain of committing a criminal offense").

¶70 A federal case out of the Seventh Circuit is helpful

in illustrating how both the scope and the voluntary nature of

the consent implied by conduct are evaluated by what is

reasonable under the particular circumstances. Where a parking

lot for government employees had signs posted stating that all

vehicles were "subject to search," the mere conduct of parking

in the lot did not imply consent to a sudden, unprecedented

search of all vehicles because the vague signs gave no reason to

expect such a singular suspicionless search. McGann v. Ne. Ill.

Reg'l Commuter R.R. Corp., 8 F.3d 1174, 1176, 1182-83 (7th Cir.

1993); see also State v. Iaccarino, 767 So.2d 470, 477 (Fla.

Dist. Ct. App. 2000) (holding that implied consent to searches
at festival entrance did not extend to intrusive drug searches,

because a "reasonable person would conclude from the signs

posted at the gate that the search was limited to cans, bottles,

and the contents of coolers or backpacks, . . . [not] wallets,

pockets, and underwear").

V. APPLICATION

¶71 I now apply these principles to the unconscious-driver

provisions of Wisconsin's implied consent law, in light of
Howes' arguments. Howes argues that, under the Supreme Court's

12
 No. 2014AP1870-CR.mjg

recent decisions in Missouri v. McNeely, 133 S. Ct. 1552 (2013),

and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),

authorizing warrantless blood tests of unconscious drivers based

solely on their implied consent creates an unreasonable per se

exception to the warrant requirement. I therefore address

McNeely and Birchfield to explain why they do not support the

result that Howes suggests. I then examine the reasonableness

of the law's presumption that a person has impliedly consented

to testing while unconscious, and I conclude that it does not

violate the Fourth Amendment.

A. McNeely and Birchfield

¶72 In McNeely, the Supreme Court held that the natural

dissipation of alcohol in the bloodstream does not constitute a

per se exigency that always justifies a warrantless blood draw.

McNeely, 133 S. Ct. at 1563. Although Howes points to broad

language in McNeely that emphasizes the intrusive nature of a

blood draw and the need for an examination of the totality of

the circumstances, the holding in McNeely is limited only to the
question of exigent circumstances. The McNeely Court "pointedly

did not address" any other exceptions to the warrant

requirement. Birchfield, 136 S. Ct. at 2174. Here, the State

does not ground its argument in exigent circumstances, but

rather bases its case entirely upon the consent exception to the

warrant requirement. So, put simply, McNeely is inapplicable to

the question before us, that is, whether the unconscious-driver

provisions of Wisconsin's implied consent law are
unconstitutional.

13
 No. 2014AP1870-CR.mjg

¶73 With Birchfield, we get closer to the mark. In

Birchfield, the Supreme Court held, inter alia, that it was

unreasonable to deem a driver "to have consented to submit to a

blood test on pain of committing a criminal offense."

Birchfield, 136 S. Ct. at 2186. But Wisconsin's implied consent

law does not threaten the criminal penalties that Birchfield

disapproved; instead, the result of refusal is that the officer

shall "prepare a notice of intent to revoke, by court order

under sub. (10), the person's operating privilege." Wis. Stat.

§ 343.305(9)(a). A court-ordered revocation under § 343.305(10)

is not a criminal penalty.9 Therefore, nothing in Birchfield

undermines the longstanding provisions of Wisconsin's implied

consent law.

¶74 On the contrary, the Supreme Court stated in

Birchfield that "[i]t is well established that a search is

reasonable when the subject consents, and that sometimes consent

to a search need not be express but may be fairly inferred from

context." Birchfield, 136 S. Ct. at 2185 (citations omitted).

9
A revocation under Wis. Stat. § 343.305(10) has other
consequences, but they are not criminal penalties for the
withdrawal of consent. For example, Wis. Stat. § 343.307(1)(f)
provides that a revocation under § 343.305(10) is counted in
determining the penalty for operating a motor vehicle while
intoxicated in violation of Wis. Stat. § 346.63(1). But that
penalty is imposed only on the subsequent criminal offense of
drunk driving, not on the earlier withdrawal of consent to
testing under the implied consent law. Unlike the North Dakota
law at issue in Birchfield, which made the refusal itself a
misdemeanor in the first instance, see Birchfield, 136 S. Ct. at
2170-71, a person's withdrawal of consent to a blood test under
Wisconsin's implied consent law is not a criminal offense.

14
 No. 2014AP1870-CR.mjg

The Court continued, "Our 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. Petitioners do not question the

constitutionality of those laws, and nothing we say here should

be read to cast doubt on them." Id. (emphasis added) (citations

omitted). Far from disapproving the concept of consent by

conduct within the context of a driver's implied consent, the

Court expressly endorsed the general validity of state implied

consent laws that infer motorists' consent to testing from the

conduct of driving.

B. Drivers in Wisconsin Consent to Testing By Choosing to Drive

With Notice of Their Responsibilities

¶75 Howes argues that it is unreasonable to presume that a

driver has consented to testing merely by the conduct of driving

on state highways. However, the understanding that a driver's

voluntary consent to testing of blood, breath, or urine is

validly implied by the conduct of driving has been consistently
recognized in this court's cases. See, e.g., Zielke, 137

Wis. 2d at 48 ("The consent is implied as a condition of the

privilege of operating a motor vehicle upon state highways.");

Neitzel, 95 Wis. 2d at 203 ("The entire tenor of the implied

consent law is . . . that consent has already been

given . . . ."). In Neitzel, we concluded that an arrestee does

not have a statutory right to consult with counsel about whether

to refuse testing, because "a lawyer cannot induce his client to
recant a consent previously given knowingly and voluntarily."

15
 No. 2014AP1870-CR.mjg

Neitzel, 95 Wis. 2d at 201 (emphasis added). At the time the

defendant chose to drive, "he was fully cognizant of his rights

and was deemed to know that, in the event he was later arrested

for drunken driving, he had consented . . . to chemical testing

under the circumstances envisaged by the statute." Id. Put

simply, consent to testing had already been given, and it

remained valid until withdrawn.10

¶76 Inferring consent to testing from the conduct of

driving appears essential to the validity of the warrantless

blood test that occurred in State v. Disch, 129 Wis. 2d 225, 385

N.W.2d 140 (1986), where this court upheld a blood test of a

driver who was "in a stupor" and "did not seem able to

concentrate." Id. at 236. The only basis for this ruling was

the same statutory language that Howes now challenges. See id.

at 236-38. Therefore, unless this court has had a sudden change

of heart unsignaled over the course of the past thirty years of

10
Howes argues that a recent court of appeals decision,
State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849
N.W.2d 867, stands for the contrary proposition. In Padley, the
court of appeals rejected "the State's incorrect view that . . .
'implied consent' alone can 'serve as a valid exception to the
warrant requirement.'" Id., ¶37. However, Padley did not cite
authority for its rejection of the validity of a driver's
implied consent as an exception to the warrant requirement, nor
was such a conclusion necessary to decide the case, because the
driver in Padley consented expressly. See id., ¶11. I reject
Padley's view as having no basis in law and as inconsistent with
the Supreme Court's analysis of a state implied consent law
under the principle that "consent to a search need not be
express but may be fairly inferred from context." Birchfield,
136 S. Ct. at 2185.

16
 No. 2014AP1870-CR.mjg

its jurisprudence on the implied consent law, it would appear

that Howes should receive the same result that Disch received.

¶77 Wisconsin is not the only jurisdiction to recognize

that consent to testing is implied when a person operates a

motor vehicle and continues until it is revoked. The Idaho

Supreme Court recognizes that drivers "give their initial

consent to evidentiary testing by driving on Idaho roads

voluntarily," and such consent will "qualify as voluntary" so

long as the driver "continue[s] to give voluntary consent."

State v. Wulff, 337 P.3d 575, 582 (Idaho 2014). Applying this

rule to an apparently unconscious driver, Idaho's court of

appeals recognized the validity of the driver's implied consent

under the Fourth Amendment, because "[t]he fact that [the

driver] was allegedly unconscious when the officer read her the

advisory does not effectively operate as a withdrawal of her

consent." Bobeck v. Idaho Transp. Dept., 363 P.3d 861, 866-67

(Idaho Ct. App. 2015). Further, the court held that the

officers had no duty "to ensure comprehension of a person who is
under the influence to the point of being semi-conscious or

unconscious at times." Id. at 865.

¶78 I acknowledge that other courts have found that the

implied consent of an unconscious driver cannot justify a

warrantless blood draw. See, e.g., People v. Arredondo, 199

Cal. Rptr. 3d 563 (Cal. Ct. App. 2016), modified on denial of

reh'g (Mar. 24, 2016), review granted, 371 P.3d 240 (Cal. 2016);

Bailey v. State, 790 S.E.2d 98 (Ga. App. 2016); State v. Romano,
785 S.E.2d 168 (N.C. Ct. App. 2016), review granted, 794 S.E.2d

17
 No. 2014AP1870-CR.mjg

315 (N.C. 2016), review granted, writ granted, 794 S.E.2d 317

(N.C. 2016); State v. Ruiz, ___ S.W.3d ___, 2015 WL 5626252

(Tex. App. Aug. 27, 2015), vacated, No. PD-1362-15, 2017 WL

430291 (Tex. Crim. App. Feb. 1, 2017) (per curiam).

¶79 At first blush, this appears to be a significant list

of courts with holdings inapposite to that which I advocate

today. However, the holdings in those cases all assume that

McNeely (the exigent circumstances case) controls the outcome in

implied consent cases. See, e.g., Bailey, 790 S.E.2d at 104

("In light of McNeely . . . implied consent was insufficient to

satisfy the Fourth Amendment . . . ."). Both as a matter of

logic and in light of the relevant language in Birchfield

(decided after McNeely), I fail to see how that can be the case.

Because McNeely does not control as to the application of the

consent exception to the warrant requirement, I reach a

different conclusion than other jurisdictions do.

C. The Scope of Consent Is Reasonable

¶80 I conclude that the unconscious-driver provisions are
reasonable in light of the clarity and specificity of the notice

given and the strict statutory parameters for the occasion and

manner of testing.

¶81 First, the notice given in the statute is clear: a

test may be performed on a driver while he or she is

unconscious, Wis. Stat. § 343.305(3)(ar)-(b), and continuing

consent to testing is deemed to exist by virtue of the operation

of a motor vehicle, § 343.305(2). A driver is "deemed to know"
the conditions imposed by the implied consent law, Neitzel, 95

18
 No. 2014AP1870-CR.mjg

Wis. 2d at 201, and the conditions in the unconscious-driver

provisions are unequivocal.

¶82 Second, the notice given is much more specific than

the vague, generalized notices rejected by the Seventh Circuit

in McGann and by the Florida District Court of Appeal in

Iaccarino. In those cases, generic "subject to search" notices

did not provide fair notice of the extensive searches actually

performed, and it was therefore unreasonable to deem individuals

to have consented to those searches. See McGann, 8 F.3d at

1176, 1183; Iaccarino, 767 So.2d at 477-80. But as the Florida

court suggested in Iaccarino, providing a clearer and more

specific notice would have been enough to establish consent.

Iaccarino, 767 So.2d at 480. Here, the statute explicitly

notifies all drivers that they will be deemed to have consented

to the tests (not to the choice of testing or revocation), in

particular circumstances specifically tailored to combating the

dangers of intoxicated driving. Unlike the parking lot in

McGann, where unwarned and unprecedented searches were held
unreasonable based on a vague notice, the State provides notice

through its statutes of its regularly performed tests, and

drivers have no reason to expect otherwise.

¶83 Further, tests may be performed on an unconscious

person only in specific situations. Testing may be performed if

an officer has probable cause to arrest the driver, but only if

the arrested offense is one of certain enumerated intoxicated-

driving offenses under Wis. Stat. § 346.63 or certain other
offenses involving injury or homicide by intoxicated use of a

19
 No. 2014AP1870-CR.mjg

vehicle. See Wis. Stat. § 343.305(3)(b). But if the driver has

not been arrested, testing of an unconscious person is limited

to cases involving an accident causing bodily harm and either

the presence of alcohol or a violation of law.

§ 343.305(3)(ar)1.-2. Also, if the test is a blood test, it may

be administered "only by a physician, registered nurse, medical

technologist, physician assistant, phlebotomist, or other

medical professional who is authorized to draw blood, or person

acting under the direction of a physician." Wis. Stat.

§ 343.305(5)(b) (2015-16). These conditions circumscribe the

scope of the testing, and testing an unconscious person outside

of them requires a warrant, exigent circumstances, or "other

lawful means." § 343.305(3)(c).

¶84 In the final analysis, "[i]t is the motorist who has

voluntarily asserted his or her autonomy" in deciding to drive,

State v. Wintlend, 2002 WI App 314, ¶19, 258 Wis. 2d 875, 655

N.W.2d 745, and "voluntary consent to a blood draw is not

negated by the fact that consent was procured by informing a
suspect that the alternative is a penalty," Padley, 354

Wis. 2d 545, ¶72 (citing Vill. of Little Chute v. Walitalo, 2002

WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891). Howes exercised

his autonomy by electing to drive under the conditions all

drivers in Wisconsin accept, and he has not developed——much less

perfected——any argument as to why, if a driver's voluntary

consent to testing may be implied from the conduct of driving,

the blood test performed on him was not authorized by his
implied consent.

20
 No. 2014AP1870-CR.mjg

VI. CONCLUSION

¶85 No warrant is required in order to administer the

tests to which a driver has impliedly consented, even if the

driver is found unconscious. Voluntary consent to testing can

be presumed from the decision to drive made with notice of the

statutory requirements and in the absence of any expressed

intent to revoke such consent. Further, this presumption that

an unconscious driver does not withdraw consent is not per se

unreasonable under the Fourth Amendment. Therefore, I cannot

conclude that Howes has met his burden to prove beyond a

reasonable doubt that the unconscious-driver provisions of the

statute are facially unconstitutional and "cannot be

constitutionally enforced under any circumstances." Society

Ins., 326 Wis. 2d 444, ¶26. I conclude that the circuit court

erred in striking down the statute as facially unconstitutional

and in suppressing the results of the blood test on that basis.

¶86 For the foregoing reasons I concur.

¶87 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.

21
 No. 2014AP1870-CR.dk

¶88 DANIEL KELLY, J. (concurring). I join Chief Justice

ROGGENSACK's opinion in toto as well as the mandate of the

court. I, at the same time, join Part II of Justice

ABRAHAMSON's dissent insofar as it discusses the

constitutionality of Wis. Stat. §343.305(3)(b).

1
 No. 2014AP1870-CR.ssa

¶89 SHIRLEY S. ABRAHAMSON, J. (dissenting). Only one

question of law has been at issue in the instant case since its

inception: Whether provisions of Wisconsin's implied consent

law authorizing warrantless blood draws from unconscious

drivers, Wis. Stat. §§ 343.305(3)(ar) and (b), are

constitutional. These statutory provisions appear in Attachment

1.1

¶90 The constitutional inquiry into the statute's

unconscious driver provisions focuses on whether statutory

implied consent to a blood draw, a significant search of the

person, satisfies the "consent" exception to the Fourth

Amendment. This is the only Fourth Amendment issue the parties

addressed in the circuit court and in their briefs and arguments

in this court. This is the only Fourth Amendment issue

addressed by the circuit court. This is the only issue

addressed by the court of appeals in its certification memo.2

¶91 At the suppression hearing, the circuit court
considered the only two issues presented by the parties:

1
For clarity, Chief Justice Roggensack's lead opinion is
joined by Justice Rebecca Grassl Bradley and Justice Daniel
Kelly. Justice Gableman's concurring opinion is joined by
Justice Annette Kingsland Ziegler. Justice Daniel Kelly filed a
concurring opinion. This dissent is joined in its entirety by
Justice Ann Walsh Bradley, and in Part II by Justice Daniel
Kelly insofar as it discusses the constitutionality of Wis.
Stat. § 343.305(3)(b).
2
See State v. Howes, No. 2014AP1870-CR, certification by
Wisconsin Court of Appeals (Wis. Ct. App. Jan. 28, 2016).

1
 No. 2014AP1870-CR.ssa

probable cause to arrest the defendant and the constitutionality

of the Wisconsin implied consent law.

¶92 The circuit court held that there was probable cause

to arrest the defendant. I agree.

¶93 After indulging every presumption to sustain the

constitutionality of the statute, the circuit court concluded

that the statute was unconstitutional under the Fourth

Amendment: No consent in the constitutional sense can be given

when the driver is unconscious and incapable of giving or

withdrawing consent. I agree.

¶94 Rather than address the Fourth Amendment issue

presented by the parties, the lead opinion sua sponte upholds

the warrantless blood draw under the Fourth Amendment by

fabricating "exigent circumstances." The lead opinion misleads

the reader into believing that the circuit court addressed and

decided the existence of exigent circumstances. See lead op.,

¶2. The circuit court did not do so. In paragraph 15, the lead

opinion fesses up that the circuit court merely stated without
analysis that no exigent circumstances were presented by the

instant case.

¶95 The lead opinion establishes the existence of "exigent

circumstances" by stepping off the bench, seating itself at the

counsel table as advocate for the State, and putting itself on

the stand as witness for the State, thus abandoning its role as

neutral decision maker. By raising and deciding the exigent

circumstances exception sua sponte without giving the defendant
an opportunity to present evidence or to be represented by

2
 No. 2014AP1870-CR.ssa

counsel, the lead opinion violates basic concepts of due process

and destabilizes the adversary system at both the trial and

appellate levels.3

¶96 Furthermore, no reasonable view of the record supports

theholding that exigent circumstances justify a warrantless

blood draw in the instant case. The lead opinion refuses to

hold itself to the "heavy burden" it undertakes (when it acts as

the State's surrogate) to rebut the presumption by clear and

convincing evidence that a warrantless search of Howes is

unreasonable.4

¶97 In essence, the lead opinion engages in an assault on

Missouri v. McNeely, 133 S. Ct. 1552 (2013). McNeely caused a

paradigm shift in Fourth Amendment and drunk-driving law.5 The

McNeely Court held:

3
As the United State Supreme Court has explained: "In our
adversary system, in both civil and criminal cases, in the first
instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the
issues for decision and assign to courts the role of neutral
arbiter of matters the parties present." Greenlaw v. United
States, 554 U.S. 237, 243–44 (2008) (citing Castro v. United
States, 540 U.S. 375, 381–83 (2003)). The Court further
explained: "To the extent courts have approved departures from
the party presentation principle in criminal cases, the
justification has usually been to protect a pro se litigant's
rights." The defendant in the instant case is not a pro se
litigant. He is represented by counsel.
4
Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) ("[P]olice
bear a heavy burden when attempting to demonstrate an urgent
need that might justify warrantless searches or arrests").
5
See, e.g., State v. Tullberg, 2014 WI 134, ¶42, 359
Wis. 2d 421, 857 N.W.2d 120 (McNeely "changed the landscape of
warrantless blood draws in Wisconsin").

3
 No. 2014AP1870-CR.ssa

• "[W]hile the natural dissipation of alcohol in the

blood may support a finding of exigency in a specific

case, . . . it does not do so categorically."

McNeely, 133 S. Ct. at 1563.

• A "careful case—by-case assessment of exigency" must

be undertaken. McNeely, 133 S. Ct. at 1561.

• Most importantly, if law enforcement "can reasonably

obtain a warrant before a blood sample can be drawn

without significantly undermining the efficacy of the

search, the Fourth Amendment mandates that they do

so." McNeely, 133 S. Ct. at 1561 (emphasis added).

¶98 These McNeely principles govern the instant case.

McNeely's directive that a court engage in careful, case-by-case

assessments of exigency cannot be met by way of the lead

opinion's assumptions and speculation in an appellate opinion.

The record does not support a case-by-case assessment of

exigency in the instant case and does not support a holding that

law enforcement could not have reasonably obtained a warrant
before a blood sample could be drawn.

¶99 Because the lead opinion whittles away constitutional

protections for the defendant and all of us under the rubric of

exigent circumstances, I dissent.

¶100 I will first address the lead opinion's explication of

exigent circumstances as an exception to the Fourth Amendment in

the instant case. I will then address the constitutionality of

the statutory implied consent under the Fourth Amendment.
I

4
 No. 2014AP1870-CR.ssa

¶101 At the hearing on the motion to suppress the test

results from the blood draw, the State's witness, Deputy Schiro

of the Dane County Sheriff's Office, was the only witness. He

testified to establish probable cause and his compliance with

the implied consent law.

¶102 The State did not introduce any evidence to establish

exigent circumstances. Indeed, the State did not even hint that

exigent circumstances may have authorized the warrantless blood

draw.

¶103 The defendant has never been given notice or an

opportunity to present evidence or make arguments regarding what

has become the dispositive issue in the instant case——exigent

circumstances. I thus conclude that the lead opinion has

deprived the defendant of due process and has destabilized the

adversary system at both the trial and appellate levels.

¶104 A defendant has due process rights to notice of issues

to be resolved and to be heard in a meaningful way, including "a

right to examine the witnesses against him, to offer testimony,
and to be represented by counsel." Washington v. Texas, 388

U.S. 14, 18 (1967) (citing In re Oliver, 333 U.S. 257, 273

(1948)).6 The defendant's due process rights in the instant case

6
Lankford v. Idaho, 500 U.S. 110, 126 (1991) ("notice of
issues to be resolved by the adversary process is a fundamental
characteristic of fair procedure."); California v. Trombetta,
467 U.S. 479, 485 (1984) ("criminal prosecutions must comport
with prevailing notions of fundamental fairness"); Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950)
(due process requires that "adjudication be preceded by notice
and opportunity for hearing appropriate to the nature of the
case").

5
 No. 2014AP1870-CR.ssa

to get notice, to be heard, to present a complete defense, and

to have counsel have been violated.7

7
See In re Termination of Parental Rights to Daniel R.S.,
2005 WI 160, ¶65, 286 Wis. 2d 278, 706 N.W.2d 269 ("the
opportunity to be heard includes the right to 'present a
complete defense'") (quoted source omitted).

"The opportunity to present arguments on the legal issue
upon which a case is to be decided is fundamental to sound legal
process . . . ." Bloomer v. Gibson, 912 A.2d 424, 433–34 (Vt.
2006) (citing Adam A. Milani & Michael R. Smith, Playing God: A
Critical Look at Sua Sponte Decisions by Appellate Courts, 69
Tenn. L. Rev. 245 (2002)). The Bloomer court cited large swaths
of Milani and Smith's article, including the following
discussion:

[B]eing denied an opportunity to address the issue
that ultimately proves dispositive of a case is no
different than a complete denial of an opportunity to
be heard. If a court perceives the issues on appeal
as different from those addressed by the parties, the
parties should have a right to receive notice of the
court's concern about those issues and to present
arguments on them. Without this right, the
opportunity to be heard is but a "teasing illusion."
Allowing a party to submit briefs and arguments on
what the party believes to be the issues, but denying
that party the opportunity to be heard on the issue
the court deems dispositive, is akin to granting
citizens free speech but barring them from speaking on
issues of public concern. In both situations, the
exception renders the right meaningless.

Milani & Smith, 69 Tenn. L. Rev. at 268-69 (footnotes omitted).

See also Justice Ann Walsh Bradley's concurrence in City of
Janesville v. CC Midwest, Inc., 2007 WI 93, ¶68, 302
Wis. 2d 599, 641, 734 N.W.2d 428, 450 (Bradley, J., concurring),
explaining the fundamental premise of the adversary system:

The rule of law is generally best developed when
issues are raised by the parties and then tested by
the fire of adversarial briefs and oral arguments.
Indeed, "[t]he fundamental premise of the adversary
process is that these advocates will uncover and
present more useful information and arguments to the
(continued)
6
 No. 2014AP1870-CR.ssa

¶105 Furthermore, this kind of violation of due process may

undermine the validity and legitimacy of the court's decision:

"If notice is not given, and the adversary process is not

permitted to function properly, there is an increased chance of

error . . . and with that, the possibility of an incorrect

result." Lankford v. Idaho, 500 U.S. 110, 127 (1991).

¶106 Moreover, the lead opinion violates a basic rule of

appellate review by bypassing the adversary process and raising

and deciding a dispositive issue on its own without the benefit

of briefs or argument.8

decision maker than would be developed by a judicial
officer acting on his own in an inquisitorial system."
Adam A. Milani & Michael R. Smith, Playing God: A
Critical Look at Sua Sponte Decisions By Appellate
Courts, 69 Tenn. L. Rev. 245, 247 (2002), citing
United States v. Burke, 504 U.S. 229, 246, 112 S. Ct.
1867, 119 L. Ed. 2d 34 (1992) (Scalia, J.,
concurring).
8
"As various members of this court have said, we should not
'reach out and decide issues' that were not presented to the
court by the parties." Dairyland Greyhound Park, Inc., v.
Doyle, 2006 WI 107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408
(Roggensack, J., concurring in part & dissenting in part)
(quoting Town of Beloit v. Cty. of Rock, 2003 WI 8, ¶72, 259
Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting)). See
also State v. Thompson, 2012 WI 90, ¶¶9, 60, 342 Wis. 2d 674,
818 N.W.2d 904 (declaring that the court should not decide
issues that are not briefed).

(continued)
7
 No. 2014AP1870-CR.ssa

¶107 In addition to issues of violating due process and

appellate practice, as a factual matter, if counsel for the

defendant had had an opportunity to address exigent

circumstances, counsel might have presented evidence and

argument that significantly undercut the lead opinion's

presentation of what might have been (but was not and might not

be) the State's position on exigent circumstances.

¶108 For example, a key factual sticking point in the lead

opinions's exigent circumstances analysis is that the record

does not demonstrate that law enforcement could not have timely

secured a warrant. The lead opinion presents no evidence

establishing approximately how long it would have taken to

obtain a warrant for the blood draw in Dane County. Yet the

The United States Supreme Court has often explained the
fundamental importance of the adversarial presentation of
issues. See, e.g., Penson v. Ohio, 488 U.S. 75 (1988) ("This
system is premised on the well-tested principle that truth——as
well as fairness——is 'best discovered by powerful statements on
both sides of the question.'" (citations omitted)); Polk Cty. v.
Dodson, 454 U.S. 312, 318 (1981) ("The system assumes that
adversarial testing will ultimately advance the public interest
in truth and fairness."); Mackey v. Montrym, 443 U.S. 1, 13
(1979) ("[O]ur legal tradition regards the adversary process as
the best means of ascertaining truth and minimizing the risk of
error . . . .").

See also State v. Negrete, 2012 WI 92, ¶80 n.20, 343
Wis. 2d 1, 819 N.W.2d 749 (Abrahamson, C.J., dissenting)
("Scholars have made similar observations. See, e.g., Stephan
Landsman, Readings on Adversarial Justice: The American
Approach to Adjudication (1988); Jerold H. Israel, Cornerstones
of the Judicial Process, Kan. J.L. & Pub. Pol'y, Spring 1993, at
5; Ellen E. Sward, Values, Ideology, and the Evolution of the
Adversary System, 64 Ind. L.J. 301, 316–19 (1989).").

8
 No. 2014AP1870-CR.ssa

lead opinion, without any evidentiary record, concludes that the

officer did not have time.

¶109 At the suppression hearing, which addressed whether

the officer had probable cause to arrest and the officer's

compliance with the implied consent statute, the officer

testified as follows on cross-examination by defense counsel and

on redirect examination by the State that he had the time to get

a warrant:

On cross-examination of Deputy Schiro by defense counsel:

Q. And you had plenty of time in this case to get a
warrant, didn't you?

A. Yes

. . . .
On redirect examination of Deputy Schiro by the State:

Q. You testified on cross-examination, Deputy Schiro,
that you had plenty of time to get a warrant before
the blood draw. Why didn't you?

A. I believe I did not have to.
¶110 The lead opinion rejects the Dane County deputy's

testimony as the deputy's subjective belief. The lead opinion

reminds us that the totality of the circumstances test for

exigent circumstances is an objective one. See lead op., ¶36 &

n.9.

¶111 Relying on United States v. Richardson, 208 F.3d 626,

629 (7th Cir. 2000), the lead opinion reasons that "a police

officer's subjective belief that exigent circumstances exist is

insufficient to make a warrantless search." The instant case is
distinguishable from Richardson. Here, the officer testified

9
 No. 2014AP1870-CR.ssa

that he did not believe there were exigent circumstances.

Because the Fourth Amendment puts the burden to prove the

reasonableness of a warrantless search on the government, it is

one thing to ignore the officer's subjective, self-serving

belief that he did not have time to get a warrant and a wholly

different issue to rely on the officer's statement that he had

time to get a warrant as an objective evaluation of exigency.

¶112 Furthermore, defense counsel might have offered as

expert testimony the deputy's testimony about whether he had

time to get a warrant. The testifying deputy has worked for 15

years as a Dane County law enforcement officer, and he ought to

be qualified to testify from personal, professional expertise

about the time needed to get a warrant in Dane County.

¶113 Advancements have been made for the expeditious

processing of warrant applications. McNeely, 133 S. Ct. at

1561-63. See Wis. Stat. §§ 968.12(3)(a)-(d) (authorizing search

warrants on oral testimony communicated to the judge by

telephonic, radio, or other means of electronic communication).
The Dane County Circuit Court has a system of 24/7 duty judges

to provide telephonic warrants. See Dane County Court Rules,

Rule 102, entitled "Duty Judge Responsibility."

¶114 Indeed the Dane County deputy's view on how long it

would take to get a telephonic warrant in Dane County ought to

be more reliable than the unsupported view of the three justices

joining the lead opinion. Furthermore, the Dane County Circuit

Court's view on how long it would take to get a telephonic

10
 No. 2014AP1870-CR.ssa

warrant in Dane County ought to be more reliable than the view

of the three justices joining the lead opinion.

¶115 In rendering its decision declaring the blood draw

unconstitutional, the circuit court declared as an aside that

there were no exigent circumstances causing an exception to the

warrant requirement and that the deputy had time to get a

warrant:

[T]here are no exigent circumstances that are
identified here that would cause an exception to the
warrant requirement. . . . [t]he officer testified
that there was no reason he could not have gotten a
warrant. . . . There is nothing to suggest that there
were exigent circumstances that would obviate the
warrant requirement, so that's where we need to leave
it then today.
¶116 In addition, defense counsel might have challenged the

lead opinion's reliance on the defendant's prohibited alcohol

concentration of 0.02 percent as supporting exigent

circumstances. Blood alcohol concentration, BAC, refers to the

amount of alcohol in the driver's blood. Prohibited alcohol

content, PAC, refers to the legal limit of alcohol in a driver's

blood.9
9
See Wis. Stat. § 346.63, Operating under influence of
intoxicant or other drug:

(1) No person may drive or operate a motor vehicle
while:

. . . .

(b) The person has a prohibited alcohol concentration.

See Wis. Stat. § 340.01(46m):

"Prohibited alcohol concentration" means one of the
following:
(continued)
11
 No. 2014AP1870-CR.ssa

¶117 According to the lead opinion, a 0.02 percent BAC will

disappear in one to two hours. Lead op., ¶45. With this

shortened timeline, the time available for an officer to obtain

a warrant decreases, according to the lead opinion. This

proposition is central to the analysis in the lead opinion.

¶118 Under closer scrutiny, it appears that this critical

one-to-two-hour time period might have elapsed before the blood

draw was requested or taken and that the lowered PAC is

irrelevant to the exigent circumstances analysis in the instant

case.

¶119 The record does not reveal the time at which the

defendant stopped drinking or the time at which the accident

occurred. See lead op., ¶47. The record demonstrates only that

the blood draw was roughly two hours after the sheriff's office

was advised of the accident. See lead op., ¶13.

¶120 Thus, the defendant's last drink and the accident were

obviously more than two hours before the blood was drawn. If a

0.02 percent BAC will dissipate in one to two hours (as the lead
opinion suggests), there were no exigent circumstances when the

blood draw was made because the BAC in all probability would had

already dissipated.

(a) If the person has 2 or fewer prior convictions,
suspensions, or revocations, as counted under s.
343.307(1), an alcohol concentration of 0.08 or more.

(c) If the person is subject to an order under s.
343.301 or if the person has 3 or more prior
convictions, suspensions or revocations, as counted
under s. 343.307(1), an alcohol concentration of more
than 0.02.

12
 No. 2014AP1870-CR.ssa

¶121 The record nevertheless indicates that the defendant's

BAC was in all probability more than 0.02 percent. Several

witnesses reported smelling intoxicants on the defendant.

According to the Assistant District Attorney's argument at the

suppression hearing, a person with a 0.11-.13 percent BAC will

not exude "an incredibly heavy" odor. Thus, a person with a

0.02 percent BAC would have exuded even less of an odor of

intoxicants.10

¶122 If the defendant's BAC was substantially higher than

0.02 percent, then law enforcement would have had more than one

to two hours after the last drink within which to obtain a

warrant for a blood draw and still gather evidence that

defendant violated the law.

¶123 In either eventuality, that is, whether the defendant

had a .02 percent BAC or had a higher BAC, the lead opinion's

reliance on the defendant's lower PAC threshold to support

exigent circumstances falls apart.

¶124 Defense counsel might have shown that the hour before
law enforcement requested the hospital for a blood draw and the

hour between the officer's request for a blood draw and the

blood draw were sufficient times for the officer to get a

warrant.

10
The assistant district attorney set forth this
proposition in order to explain why Deputy Schiro did not
testify that he recalled smelling alcohol on the defendant. See
Pet. App. at 77.

13
 No. 2014AP1870-CR.ssa

¶125 The evidence of the defendant's medical condition was

sketchy. It is thus unclear whether it would have led a

reasonable officer to conclude that there was no time to obtain

a warrant before blood was drawn.

¶126 Defense counsel might have also shown that several law

enforcement officers were on the accident scene and were

available to aid Deputy Schiro. Deputy Schiro also talked with

his sergeant.

¶127 The involvement of other law enforcement agents cuts

against the existence of exigent circumstances. There is

nothing in the record indicating that the several officers

involved were so busy finding or identifying the driver,

extensively investigating the accident, tending to injured

victims, removing the deer and motorcycle from the road, or

engaging in other activities that neither they nor the sergeant

could not initiate a telephone warrant process.

¶128 In addition, defense counsel might have persuaded the

court to follow precedent, namely State v. Kennedy, 2014 WI 132,
¶34 n.13, 359 Wis. 2d 454, 856 N.W.2d 834, in which the court

explained its reluctance to address exigent circumstances when

the State does not argue that exigent circumstances existed:

The State, which would bear the burden, does not argue
that exigent circumstances existed in this case.
Neither the State nor Kennedy focus on this issue.
Whether an exigency exists in a given case will vary
depending on any number of facts or circumstances, as
law enforcement investigations are often
extraordinarily fluid situations. Our holding in this
case must not be read to affirmatively conclude that
exigent circumstances did not support the warrantless
investigatory blood draw performed on Kennedy.

14
 No. 2014AP1870-CR.ssa

Nonetheless, our analysis remains focused on the
arguments addressed by counsel . . . .11
¶129 The legal effect of the exigent circumstances analysis

in the lead opinion is that it allows a warrantless blood draw

when it is unclear from the record whether law enforcement had

time to secure a warrant. Yet McNeely declares that no exigent

circumstances exist when there is time to secure a warrant.

¶130 Furthermore, the legal effect of the exigent

circumstances analysis in the lead opinion creates an

impermissible per se rule that no warrant is needed to draw

blood for certain drivers. It is unclear, however, to whom the

per se rule is applicable: To drivers who are unconscious from

a motor vehicle accident? To unconscious drivers of motor

vehicles who are restricted to a 0.02 BAC? To seriously injured

hospitalized drivers?

¶131 In other words, law enforcement doesn't know which

elements of the totality of the circumstances present in the

instant case, see lead op., ¶3, are essential to justify a

11
See also Bailey v. State, 790 S.E.2d 98, 104 (Ga. Ct.
App. 2016):

The State, however, produced no evidence of exigent
circumstances. For example, there was no evidence
regarding how long the warrant process was expected to
take and whether officers could have been seeking a
warrant while Bailey was being transported to the
hospital. Thus, this could have been the situation
imagined by the McNeely Court "in which the warrant
process will not significantly increase the delay
before the blood test is conducted because an officer
can take steps to secure a warrant while the suspect
is being transported to a medical facility by another
officer."

15
 No. 2014AP1870-CR.ssa

warrantless blood draw. The lead opinion provides no clear

direction for law enforcement to follow in the future.

¶132 In sum, as a matter of law, when both the State and

the defendant have not had the opportunity to offer evidence or

argument on the issue of exigent circumstances and this court

decides the case on the dispositive issue of exigent

circumstances, the defendant has not received a full and fair

due process evidentiary or appellate hearing on his Fourth

Amendment motion to suppress. The instant case does not present

an extraordinary situation justifying departure from the rule

requiring the parties to present the issues.

¶133 In sum, as a matter of fact, the lead opinion cannot

condone the warrantless blood draw on exigent circumstances with

the sparse record of facts before it.12 As the Dane County

12
The lead opinion also considers the four-part
reasonableness test that applies once exigent circumstances are
established that was set forth in State v. Kennedy, 2014 WI 132,
¶17, 359 Wis. 2d 454, 856 N.W.2d 834. See lead op., ¶25.

Because I conclude that there were no exigent circumstances
in the instant case, I do not respond to the lead opinion's
application of these factors. However, I am skeptical that the
instant case satisfies the fourth factor, that "the arrestee
presents no reasonable objection to the blood draw." Kennedy,
359 Wis. 2d 454, ¶17. Because the defendant was unconscious, he
had no chance to object.

The lead opinion's response seems to be that "the fourth
factor speaks to the reasonableness of the type of search
employed, not whether a warrant was required to conduct the
search." Lead op., ¶26 n.8.

(continued)
16
 No. 2014AP1870-CR.ssa

Circuit Court observed in declaring the relevant provisions of

Wisconsin's implied consent law unconstitutional:

All the police officer had to do to comply with the
Fourth Amendment was to get a warrant. The defendant
was not about to go anywhere but to the operating
room. The duty judge was a phone call away.
Following McNeely, we routinely handle blood draw
search warrants by telephone. I respectfully suggest
that procedure is more consonant with the Fourth
Amendment than reading a form to an unconscious man
and then ordering his blood to be taken.
II

¶134 Because I conclude that exigent circumstances did not

render the warrantless blood draw constitutionally permissible,

I turn to considering the provisions of the implied consent law

regarding unconscious drivers. According to the statute,

unconscious drivers incapable of withdrawing consent are

presumed not to have withdrawn consent to the blood draw. See

Wis. Stat. § 343.305(3)(b).

¶135 The State did not solicit any testimony at the

suppression hearing that the defendant's consent to the blood

Characterizing this factor as a reference to the type of
test conducted and asserting that the defendant raised no
objection to the type of search misses the point: The defendant
was unconscious. The lead opinion has no way of knowing whether
the defendant was "one of the few who on grounds of fear,
concern for health, or religious scruple might prefer some other
means of testing . . . . ." Schmerber v. California, 384 U.S.
757, 771 (1966). The lead opinion seems to concede that the
defendant did not impliedly consent to the search.

I do not understand the reasoning of the lead opinion in
its footnote, but it seems internally inconsistent.

17
 No. 2014AP1870-CR.ssa

draw was given in fact and was voluntary. The State relied on

the statute alone to prove the defendant's consent.

¶136 Adhering to the reasoning set forth in State v.

Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, I

conclude that the statute's unconscious driver provisions are

unconstitutional because unconscious drivers have not freely and

voluntarily consented to the warrantless blood draw under the

Fourth Amendment. Therefore, the warrantless blood test in the

instant case should be suppressed.

¶137 Throughout the course of the instant litigation, the

State has relied on consent as the applicable exception to the

warrant requirement to validate the warrantless blood draw. The

State's position is that the defendant's statutory "implied

consent," deemed to have occurred before the defendant was

arrested for suspected drunk driving, is voluntary consent for

purposes of the consent exception to the Fourth Amendment's

warrant requirement.

¶138 The parties disagree whether this statutory implied
consent satisfies the Fourth Amendment requirement of consent.

No federal or state cases are directly on point, and, as the

court of appeals' excellent certification memorandum explains,

tension exists in the case law.

¶139 Because a majority of the court has not written on the

constitutional issue, I do not address it at length.

¶140 Upon considering the parties' arguments, the reasoning

of the circuit court, and case law from the United States
Supreme Court and the states, I conclude that the Wisconsin

18
 No. 2014AP1870-CR.ssa

implied consent statute, applied to unconscious drivers, does

not provide an independent and valid consent exception to the

warrant requirement.

¶141 Warrantless searches are unreasonable, subject to a

few narrow exceptions. State v. Artic, 2010 WI 83, ¶29, 327

Wis. 2d 392, 786 N.W.2d 430. One such exception is a search

conducted pursuant to consent. The general rule is that the

State must prove that consent was "given in fact by words

gestures, or conduct" and that the consent was "voluntary."

Artic, 327 Wis. 2d 392, ¶30.

¶142 Whether the consent was given in fact is a "question

of historical fact" that an appellate court will uphold "if it

is not contrary to the great weight and clear preponderance of

the evidence." Artic, 327 Wis. 2d 392, ¶30.

¶143 If the State establishes consent in fact, the State

must prove that the consent was given freely and voluntarily.

Schneckloth v. Bustamonte, 412 U.S. 218, 222, 225 (1973)

(consent must result from "an essentially free and unconstrained
choice").13 The State must meet this burden of proof by clear

13
In State v. Phillips, 218 Wis. 2d 180, 577 N.W.2d 794
(1998), this court provided a non-exclusive list of factors for
courts considering the voluntariness of consent to consider:

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant
to persuade him to consent; (2) whether the police
threatened or physically intimidated the defendant or
"punished" him by the deprivation of something like
food or sleep; (3) whether the conditions attending
the request to search were congenial, non-threatening,
and cooperative, or the opposite; (4) how the
defendant responded to the request to search; (5) what
(continued)
19
 No. 2014AP1870-CR.ssa

and convincing evidence. Artic, 327 Wis. 2d 392, ¶32. "The

determination of voluntariness is a mixed question of fact and

law based upon an evaluation of the totality of all the

surrounding circumstances." Artic, 327 Wis. 2d 392, ¶32

(internal quotation marks omitted).

¶144 The consent required in Fourth Amendment cases must be

"'an essentially free and unconstrained choice,' not 'the

product of duress or coercion, express or implied.'" Artic, 327

Wis. 2d 392, ¶32 (quoted source omitted).

¶145 The State argues that drivers on a Wisconsin highway

have given "implied consent" to a warrantless blood draw; that

statutory "implied consent" is the equivalent of actual

voluntary consent for Fourth Amendment purposes; and that the

Wisconsin implied consent statute is constitutional. According

to the State, McNeely does not govern this case because McNeely

concerns exigent circumstances, not consent.

¶146 The State asks this court to hold that the statutory

implied consent supplies constitutional consent for conscious
and unconscious drivers. The State asks this court to overturn

State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849

N.W.2d 867, in which the court of appeals held that the implied

characteristics the defendant had as to age,
intelligence, education, physical and emotional
condition, and prior experience with the police; and
(6) whether the police informed the defendant that he
could refuse consent (emphasis added).

State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786
N.W.2d 430 (citing Phillips, 218 Wis. 2d at 198-203).

20
 No. 2014AP1870-CR.ssa

consent statute relating to conscious drivers does not violate

the Fourth Amendment because it provides the person with the

choice of providing actual consent to a blood draw or facing

license revocation. Under Padley, the statutory implied consent

of drivers is consent to this choice, not consent to a blood

draw. The State asks this court to overturn Padley because the

import of Padley is to cast doubt on whether the statute's

implied consent suffices as voluntary consent in all

circumstances for Fourth Amendment purposes.14 The State's

position is that the statutory implied consent is sufficient for

Fourth Amendment purposes in all circumstances.15

¶147 The defendant argues that Padley was correctly

decided. He asserts that he did not consent in fact to a blood

draw because he was unconscious; that any consent was not

14
The court of appeals explained that several cases,
including the following, may be inconsistent: State v. Neitzel,
95 Wis. 2d 191, 289 N.W.2d 828 (1980); State v. Wintlend, 2002
WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745; Village of Little
Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650
N.W.2d 891; State v. Piddington, 2001 WI. 24, 241 Wis. 2d 754,
623 N.W.2d 528; State v. Disch, 129 Wis. 2d 225, 385
N.W.2d 140 (1986). See State v. Howes, No. 2014AP1870-CR,
certification by Wisconsin Court of Appeals (Wis. Ct. App. Jan.
28, 2016).

Thus, the court of appeals requested that this court issue
an authoritative decision clarifying the law.
15
The Padley court noted that, "at least in the context of
incapacitated drivers, 'implied consent' is a sufficient basis
on which to proceed with a warrantless search." The Padley
court acknowledged there may be a tension between its decision
and the statutory language relating to incapacitated drivers.
See State v. Padley, 2014 WI App 65, ¶39 n.10, 354 Wis. 2d 545,
849 N.W.2d 867.

21
 No. 2014AP1870-CR.ssa

voluntary because the State's interpretation of the statute

makes implied consent irrevocable;16 and that the statutory

provisions regarding unconscious drivers are the functional

equivalent of a categorical rule rejected in McNeely.17

¶148 Relying on State v. Padley, 2014 WI App 65, ¶26, 354

Wis. 2d 545, 849 N.W.2d 876, in which the court of appeals

distinguished between implied consent (which is consent to

choose between a blood draw and license revocation) and actual

voluntary consent for Fourth Amendment purposes, the circuit

court correctly reasoned, in my opinion, that an unconscious

defendant did not give actual voluntary consent to a blood draw

and that statutory implied consent is analogous to the

categorical exigent circumstances declared invalid in McNeely.

¶149 Padley has statewide precedential effect. Wis. Stat.

§ 752.41(2). We should not overrule precedent without a

compelling justification. Birchfield v. North Dakota, 136 S.

Ct. 2160 (2016), a recent United States Supreme Court case,

supports Padley and the circuit court's decision in the instant

16
See Byars v. State, 336 P.3d 939, 945 (Nev. 2014) (a
"necessary element of consent is the ability to limit or revoke
it") (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("A
suspect may of course delimit as he chooses the scope of the
search to which he consents.")); State v. Halseth, 339 P.3d 368,
371 (Idaho 2014) ("Inherent in the requirement that consent be
voluntary is the right of the person to withdraw that
consent.").
17
See State v. Wulff, 337 P.3d 575, 582 (Idaho 2014)
(declaring that Idaho's implied consent law, which did not allow
drivers to revoke consent to a blood draw, was an
unconstitutional per se exception to the Fourth Amendment).

22
 No. 2014AP1870-CR.ssa

case. In Birchfield, the United States Supreme Court recognized

that the longstanding rule permitting a search incident to

arrest allows warrantless breath tests. Nevertheless, the Court

recognized that blood draws are significant intrusions into the

body and concluded that the Fourth Amendment does not

categorically permit warrantless blood draws as valid incident

to an arrest for drunk driving. Birchfield, 136 S. Ct. at 2184.

Referring to McNeely, the Court explained that "[n]othing

prevents the police from seeking a warrant for a blood test when

there is sufficient time to do so in the particular

circumstances or from relying on the exigent circumstances

exception to the warrant requirement when there is not."

Birchfield, 136 S. Ct. at 2184.

¶150 If the United States Supreme Court refuses to

categorically permit a warrantless blood draw premised on the

well-established search incident to arrest exception to the

warrant requirement, a blood draw based on a statutorily imputed

implied consent surely cannot pass muster. Birchfield,
therefore, supports the notion that warrantless blood draws

justified by only statutory implied consent (rather than

voluntary consent in fact) are unreasonable under the Fourth

Amendment. Birchfield also supports the notion that such blood

draws, especially regarding an unconscious driver, lead to

impermissible per se exceptions to the Fourth Amendment.

¶151 In sum, in addition to my conclusions regarding the

errors in the lead opinion in relying on exigent circumstances,
I conclude that the warrantless blood test in the instant case

23
 No. 2014AP1870-CR.ssa

is not the product of actual consent in fact made freely and

voluntarily.

¶152 Accordingly, I conclude that the blood test results

should be suppressed as a violation of the Fourth Amendment.

¶153 For the reasons set forth, I write separately to

affirm the order of the circuit court suppressing evidence of

the blood test.

¶154 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent and that Justice DANIEL KELLY joins

Part II of this dissent insofar as it discusses the

constitutionality of Wis. Stat. § 343.305(3)(b).

24
 No. 2014AP1870-CR.ssa

ATTACHMENT 1

1
 No. 2014AP1870-CR.ssa

1