State v. Marshall

SCHUDSON, J.

¶ 28. (concurring). We have decided this case as we must, see Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997), and Judge Curley's thoughtful opinion explains why. Her analysis of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277, 542 N.W.2d 196 (Ct. App. 1995), and State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, is particularly important, see majority at ¶¶ 17-18, and helps to explain why the instant appeal calls out for further review.

¶ 29. I write separately to suggest the supreme court's consideration of two propositions: (1) that, until Gibson, our case law established that Marshall's statutory argument was correct; and (2) that, under pre-Gibson principles, and as a matter of sound public policy and prudent police practice, Gibson (and, perforce, our decision in the instant case) should be overruled.

¶ 30. "Application of the implied consent statute to an undisputed set of facts, like any statutory construction, is a question of law," subject to de novo review. State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999). Until Gibson, Wisconsin case law had not rejected the statutory theory Marshall presents: that under Wisconsin's implied consent law, once an arrestee refuses to submit to a blood test, police must immedi*428ately respond with the statutorily prescribed revocation procedure, and must not threaten or compel a blood test.

¶ 31. Wisconsin Stat. § 343.305(2) (1999-2000), a portion of Wisconsin's implied consent law, provides, in part:

Any person who .. . operates a motor vehicle upon the public highways of this state ... 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... when requested to do so by a law enforcement officer.

Moreover, blood may be drawn involuntarily, and without a warrant, from a person lawfully arrested for a drunk-driving related offense. See State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993).1

¶ 32. The warnings provided under the implied consent law include the following:

This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system *429than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.

Wis. Stat. § 343.305(4) (emphasis added). Further, Wis. Stat. § 343.305(9)(a) provides, in relevant part:

If a person refuses to take a test under sub. (3) (a) [authorizing a law enforcement officer to "request the person to provide one or more samples of his or her breath, blood or urine"], the law enforcement officer shall immediately take possession of the person's license and prepare a notice to revoke .. . the person's operating privilege.

(Emphases added.)

¶ 33. Thus, in Wis. Stat. § 343.305(4) and Wis. Stat. § 343.305(9)(a), respectively, the legislature specified that if a person refuses to take a test, his or her license "will be revoked" and the officer, upon the refusal, "shall immediately" take the actions to bring about the revocation.

¶ 34. Neither of these statutes, nor any other, provides a police officer the option to ignore or delay these dictates.2 Neither statute, nor any other, provides *430a police officer the option to threaten an arrestee that he or she would be strapped down and blood forcibly drawn. Our supreme court has spoken clearly: "Once there has been a proper explanation and there has been a refusal, ... a refusal has occurred under the statute and the accused is subject to the consequences of a mandatory suspension." Reitter, 227 Wis. 2d at 237 n.18 (emphasis added).

¶ 35. Although, as matter of law, a driver arrested for drunk driving has "no 'right' to refuse a chemical test," id. at 225, the driver still may refuse to take the test as long as he or she is prepared to suffer "the consequences of a mandatory suspension." Id. at 237 n.18. As this court declared, "a driver has a 'right' not to take the chemical test (although there are certain risks and consequences inherent in this choice)." Quelle, 198 Wis. 2d at 277 (emphasis added).

¶ 36. Moreover, as we also declared, "the warnings provided drivers under the implied consent law are analogous to those employed in Miranda-type cases." Id. at 276 (emphasis added) (footnote omitted). And, to appreciate the significance of that declaration, we must understand why the warnings are "analogous," not equivalent, and how their analogous function precludes a post-refused forcible blood test.

¶ 37. "Officers who administer a test under the implied consent statute are not required to advise defendants about Miranda rights .. . (.Miranda rules do not apply because request to submit to a chemical test does not implicate testimonial evidence)." Reitter, 227 Wis. 2d at 225 (citation omitted). Further, the implied consent law confers statutory rights, not constitutional *431ones, see Quelle, 198 Wis. 2d at 276 n.1. Not surprisingly therefore, our supreme court "has been reluctant 'to devise a "Miranda-like" card under the implied consent statute." Id. at 230 (citation omitted).

¶ 38. Thus, while implied consent warnings are not constitutionally equivalent to Miranda warnings, they are "analogous," see Quelle, 198 Wis. 2d at 276 (emphasis added), for the purpose of governing the law enforcement response to an arrestee's refusal. When a person, upon receiving the Miranda warnings, invokes the right to remain silent or the right to have counsel present, all questioning must cease, and any police effort to persuade or compel the arrestee to relinquish the invoked right is improper. See Miranda v. Arizona, 384 U.S. 436 (1966). Analogously, when an arrestee refuses a test under the implied consent law, police efforts to compel an arrestee to submit must cease, and the officer must comply with the statutory dictates.

¶ 39. The State argues that Bohling requires af-firmance of the trial court's denial of Marshall's suppression motion. A cursory review of Bohling would seem to support the State's position. After all, in Bohling, as in the instant case, when a person arrested for drunk driving objected to a blood test, "the officer informed him that restraint would be used if necessary." Bohling, 173 Wis. 2d at 535. The arrestee then Still refused to sign a consent form, but ultimately submitted to the blood test. Id. The supreme court, in a four-to-three decision, reversed this court's decision, which had affirmed the trial court's suppression of the test results. The supreme court concluded

that the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of *432a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication.

Id. at 547-48. See also Wis. Stat. § 343.305(3)(c) (implied consent law "does not limit the right of law enforcement officer to obtain evidence by any other lawful means").

¶ 40. In Bohling, however, the supreme court never addressed the contention Marshall presents here: that the only penalty for refusing under the implied consent law is the revocation of the defendant's operating privileges; that nothing in the implied consent law authorizes an involuntary blood draw. In Bohling, the supreme court did not address the dictates of Wis. Stat. §§ 343.305(5) & (9). In Bohling, decided two years before this court's decision in Quelle, the supreme court did not have the opportunity to address the implications of this court's conclusion that implied consent warnings are "analogous" to Miranda warnings.

¶ 41. And in Bohling, the supreme court did not consider that police conduct, such as that in this case, endangers police, those they arrest, and medical personnel, and actually undermines the effective apprehension and prosecution of drunk drivers.

¶ 42. Inevitably, allowing police to threaten or compel blood draws after refusals would result in dangerous, physical confrontations between drunk drivers and police, and between drunk drivers and the medical personnel responsible for drawing their blood. Certainly, the legislature, delineating specific statutory procedures for an immediate and non-confrontational response to a refusal, could not have intended such a result. See State v. Gould, 56 Wis. 2d 808, 812, 202 *433N.W.2d 903 (1973) (court will reject statutory interpretation that renders absurd result).3

¶ 43. Under the statutory scheme, a refusal is "immediately" met with a powerful response, see Wis. Stat. § 343.305(9)(a) — the virtual certainty of license revocation, and the virtual certainty that, in the event of a drunk driving trial, the jury will receive compelling evidence of guilt. Indeed, many seasoned prosecutors consider evidence of a refusal to be more powerful, and much less susceptible to impeachment, than evidence of blood-alcohol concentration.4

*434¶ 44. Thus, when police promptly respond to a refusal as the statute dictates, they lose nothing in their fight against drunk driving. See Scales v. State, 64 Wis. 2d 485, 494, 219 N.W.2d 286 (1974) (implied consent law must not be construed to "inhibit the ability of the state to remove drunken drivers from the highway"). Indeed, they gain. Rather than prolonging their encounter with an arrestee and risking violence by threatening to strap or otherwise compel, officers who "immediately" respond as the statute dictates, will: (1) promptly trigger license revocation; (2) effectively establish evidence of the refusal, so utterly convincing to a jury; and (3) expeditiously complete their duties with that drunk driver and return to the streets to arrest the next one.

¶ 45. No wonder, therefore, that the supreme court has advised that, upon hearing a refusal, an officer should "respond to defendants in a manner that is both direct and polite." Reitter, 227 Wis. 2d at 231. No wonder, therefore, that the legislature mandated that "the law enforcement officer," upon a refusal, "shall immediately take possession of the person's license and prepare a notice to revoke," Wis. Stat. § 343.305(9)(a), not that the law enforcement officer shall strap the suspect and have blood forcibly withdrawn.

¶ 46. "[I]t is for the legislature," not the appellate courts, "to add to the statutory scheme." See Reitter, 227 Wis. 2d at 230. "Inasmuch as the implied consent law is a statutory creation, it is the legislature . . . which should impose duties upon officers in the implied consent setting." Id. at 217-18. Likewise, it is the legisla*435ture, if it sees fit to do so, that could offer officers the option of strapping a suspect and forcing a blood test.

¶ 47. But do we really want blood? Do we really want to erase the Miranda-like bright line demarcating an officer's singular and "immediate" response? Do we really want to force every Wisconsin law enforcement officer to decide whether to force refusing drunk drivers to submit to a blood test? Do we really want to allow the legal framework for combative citizen-police confrontations, and to require medical personnel to draw blood from resistive drunk drivers?

¶ 48. Hopefully, the supreme court will perceive this court's dangerous mistakes. Hopefully, the supreme court will wince at the prospect of police regularly restraining drunk drivers and delivering them to medical personnel for forcible blood draws. And hopefully, the supreme court will restore the statutory bright line, which protects law enforcement officers and, at the same time, strengthens the fair and effective prosecution of drunk drivers.

The supreme court explained:

[A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (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. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993) (footnote omitted).

Notwithstanding its use of the term "shall," Wis. Stat. § 343.305(9)(a) is "directory, not mandatory," for the purpose of determining whether a court has personal jurisdiction over a defendant despite the failure of a law enforcement officer to immediately prepare and serve the notice to revoke, following an arrestee's refusal. See State v. Moline, 170 Wis. 2d 531, 542, 489 N.W.2d 667 (Ct. App. 1992). Because neither the supreme court nor this court has decided whether the statute is directory or mandatory in the context presented in the instant appeal, I *430refer to the statute's "dictates," rather than to what might be termed its "directives" or "mandates."

In State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987), while the supreme court concluded that the failure to advise an arrestee of the right to an alternative test under Wis. Stat. § 343.305(3) (a) did not preclude the police "from obtaining chemical test evidence by alternative constitutional means," id. at 41, the supreme court did not address the issue in this case. Indeed, although, a cursory reading of certain Zielke passages could support the State's position, it should be noted that, in Zielke, the arrestee had not refused to take a blood test and the supreme court was never considering the propriety of the police response to a refusal. See id. at 44-45.

And in State v. Krause, 168 Wis. 2d 578, 484 N.W.2d 347 (Ct. App. 1992), while this court concluded that "the forcible extraction of a blood sample was a reasonable search by fourth amendment standards once [the defendant] refused the test under the implied consent law," id. at 583, and that, under the circumstances of the case, the test results were admissible, id. at 592, this court did not consider the statutory theory Marshall presents.

From 1975 to 1982, the author of this opinion, while employed as a Milwaukee County Assistant District Attorney, prosecuted hundreds of drunk driving cases — approximately ten of them before juries — most with breath test evidence of blood-alcohol concentration, but many with refusals. From 1982 to 1992, the author of this opinion, while a circuit court *434judge, presided over approximately fifty drunk driving trials before juries, most with breath test evidence of blood-alcohol concentration, perhaps one or two with blood test evidence, and the rest with refusals.