2018 WI 85
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2483-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Patrick H. Dalton,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 377 Wis. 2d 730, 902 N.W.2d 810
(2017 – unpublished)
OPINION FILED: July 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 12, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: Todd K. Martens
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J., dissents, joined by GABLEMAN,
J. (opinion filed).
ZIEGLER, J., dissents, joined by GABLEMAN, J.
(opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Hannah Schieber Jurss, assistant
state public defender.
For the plaintiff-respondent, there was a brief filed and
an oral argument by David H. Perlman, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
2018 WI 85
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2483-CR
(L.C. No. 2014CM117)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUL 3, 2018
Patrick H. Dalton, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN WALSH BRADLEY, J. The petitioner, Patrick
Dalton, seeks review of an unpublished court of appeals decision
affirming his judgment of conviction and sentence and upholding
the circuit court's order denying his postconviction motion.1
Dalton asserts that he is entitled to withdraw his no contest
pleas because his trial counsel was ineffective for failing to
1
State v. Dalton, No. 2016AP2483-CR, unpublished slip op.
(Wis. Ct. App. July 19, 2017) (affirming the judgment and order
of the circuit court for Washington County, Todd K. Martens,
Judge).
No. 2016AP2483-CR
move to suppress blood evidence collected without a warrant. In
the alternative, he argues that he is entitled to resentencing
because the circuit court relied on an improper sentencing
factor.
¶2 Specifically, Dalton contends first that because
police lacked the exigent circumstances necessary to draw his
blood without a warrant, his counsel was ineffective for failing
to move to suppress the evidence. He asserts next that the
circuit court impermissibly lengthened his sentence for
exercising his constitutional right to refuse a warrantless
blood draw.
¶3 We conclude that exigent circumstances existed,
permitting police to draw Dalton's blood absent a warrant.
Accordingly, his counsel was not ineffective for failing to file
a meritless motion to suppress.
¶4 We further conclude that the circuit court violated
Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-
86 (2016),2 by explicitly subjecting Dalton to a more severe
criminal penalty because he refused to provide a blood sample
absent a warrant. Consequently, Dalton is entitled to
resentencing.
¶5 Accordingly, although we agree with the court of
appeals that Dalton's counsel was not ineffective, we
2
As relevant here, the Supreme Court in Birchfield
determined that it is impermissible to impose criminal penalties
for refusing to submit to a warrantless blood draw. Birchfield
v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-86 (2016).
2
No. 2016AP2483-CR
nevertheless reverse and remand to the circuit court for
resentencing.
I
¶6 This case arises from a single car crash in the
Village of Richfield in which Patrick Dalton (Dalton) was the
driver. After driving erratically and at speeds reaching
approximately one hundred miles per hour, Dalton crashed his car
into a ditch. Both Dalton and his passenger were injured.
¶7 Washington County sheriff's deputies responded to the
scene of the crash at 10:07 p.m. on December 12, 2013. Upon
arrival, the passenger in the car informed deputies that Dalton
had been drinking and that Dalton was the driver of the car.
When law enforcement arrived, Dalton was lying on the roof of
the car, unconscious, and smelled of alcohol. Dalton was taken
about a mile from the crash scene by ambulance, where he awaited
the arrival of a Flight for Life helicopter.
¶8 After Dalton was driven away from the scene,
Washington County Deputy Dirk Stolz remained and took the lead
in investigating the scene. Deputy Stolz was accompanied by
Deputies Charles Vanderheiden, Chad Polinske, and Michael
Anderson. They were later joined by Lieutenant Robert Martin.
Ten to 15 members of the Richfield Fire Department were also
present, working to keep the area safe and blocking traffic to
ensure officer safety.
¶9 While Deputy Polinske interviewed witnesses, Deputy
Vanderheiden left the crash scene to await the helicopter with
Dalton, who remained in the ambulance and unconscious. Deputy
3
No. 2016AP2483-CR
Venderheiden arrived at the landing zone at 10:37 p.m. and
testified that it took about 45 minutes from the time he got
there for the helicopter to arrive. Upon its arrival, Flight
for Life airlifted Dalton from the landing zone to Froedtert
Hospital in Milwaukee.
¶10 Subsequent to Dalton being airlifted from the scene,
Deputy Vanderheiden traveled to Community Memorial Hospital in
Menomonee Falls to speak with the passenger. Leaving the crash
scene at 11:14 p.m., Deputy Stolz drove to Froedtert Hospital in
Milwaukee to reconnect with Dalton.
¶11 When Deputy Stolz arrived at Froedtert Hospital at
11:54 p.m., Dalton was receiving emergency treatment. After the
treatment was complete, Deputy Stolz was able to speak to
Dalton, who had regained consciousness.
¶12 Upon interacting with Dalton, Deputy Stolz observed
that Dalton had glassy bloodshot eyes and the strong odor of
alcohol emanating from his mouth. Dalton also appeared
lethargic.
¶13 At approximately 12:05 a.m., nearly two hours after
being dispatched to the crash scene, Deputy Stolz informed
Dalton that he was under arrest and read Dalton the "Informing
the Accused" form.3 Dalton refused a blood draw.
3
The Informing the Accused form in the record indicates
that Deputy Stolz read to Dalton the following:
Under Wisconsin's Implied Consent Law, I am required
to read this notice to you:
(continued)
4
No. 2016AP2483-CR
¶14 Believing that there were exigent circumstances that
would obviate the need to obtain a warrant, Deputy Stolz then
instructed a nurse to draw Dalton's blood, which was
You have either been arrested for an offense that
involves driving or operating a motor vehicle while
under the influence of alcohol or drugs, or both, or
you are the operator of a vehicle that was involved in
an accident that caused the death of, great bodily
harm to, or substantial bodily harm to a person, or
you are suspected of driving or being on duty time
with respect to a commercial motor vehicle after
consuming an intoxicating beverage.
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 than 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.
If you take all the requested tests, you may choose to
take further tests. You may take the alternative test
that this law enforcement agency provides free of
charge. You also may have a test conducted by a
qualified person of your choice at your expense. You,
however, will have to make your own arrangements for
that test.
If you have a commercial driver license or were
operating a commercial motor vehicle, other
consequences may result from positive test results or
from refusing testing, such as being placed out of
service or disqualified.
In addition, your operating privileges will also be
suspended if a detectable amount of a restricted
controlled substance is in your blood.
5
No. 2016AP2483-CR
accomplished at 12:14 a.m. A subsequent blood test indicated
that Dalton's blood alcohol content was 0.238 grams per 100
milliliters, nearly three times the legal limit of 0.08.
¶15 At the time Deputy Stolz read Dalton the Informing the
Accused form, there were nine deputy sheriffs on duty in
Washington County, along with one supervisor. Several of those
who were present at the crash scene left and proceeded directly
to other incidents that had taken place in the county that night
requiring immediate attention.
¶16 Deputy Polinske, who had initially responded to the
crash scene, ended his work day at 11:00 p.m. Deputy Anderson
arrived on the scene at 10:15 p.m. and was cleared to leave at
11:42 p.m. He and one other deputy were subsequently dispatched
to an auto theft call in the Village of Richfield.
¶17 Lieutenant Martin arrived at the scene at 11:01 p.m.
and was cleared to leave at 11:46 p.m. After leaving the crash
site he proceeded immediately to another auto accident that
involved personal injury in which the driver had fled the scene,
the vehicle was in the middle of the road, and power poles were
downed. Three additional deputies accompanied Lieutenant Martin
to this scene.
¶18 With Deputy Stolz in Milwaukee attending to Dalton and
Deputy Vanderheiden in Menomonee Falls with the passenger, only
two deputies were left to cover all of Washington County. One
of these deputies was assigned to the northern half of the 432
square mile county, while the other was assigned to the southern
half.
6
No. 2016AP2483-CR
¶19 Dalton was ultimately charged with three offenses:
operating while intoxicated (OWI) as a second offense, operating
with a prohibited alcohol concentration (PAC) as a second
offense, and operating after revocation (OAR). Dalton entered
no contest pleas to the OWI and OAR charges, and the PAC charge
was dismissed and read in.4 The case proceeded directly to
sentencing.
¶20 At sentencing, the circuit court heard argument from
the State and Dalton's counsel, as well as a brief statement
from Dalton himself. In pronouncing its sentence, the circuit
court observed the nature of the offense, addressing Dalton:
You certainly were driving like a maniac this night,
and you were extremely uncooperative with the
officers. You could have killed your friend, you
could have killed yourself, or you could have killed
someone completely innocent, and you acted in total
disregard of those risks, endangering anyone else who
was on the road at the time.
¶21 The circuit then proceeded to address Dalton's refusal
to submit to a blood test:
The other thing you did is anybody who drives a motor
vehicle in Wisconsin impliedly consents to a blood or
breath draw after they're arrested. And you were
arrested, and you disregarded that, and you will be
punished for that today. You don't have the right not
4
When the State and a defendant agree that charges will be
read in, those charges are expected to be considered at
sentencing. State v. Frey, 2012 WI 99, ¶68, 343 Wis. 2d 358,
817 N.W.2d 436. The defendant understands that the read-in
charges could increase the sentence up to the maximum that the
defendant could receive for the conviction in exchange for the
promise not to prosecute those additional offenses. Id.
7
No. 2016AP2483-CR
to consent. And that's going to result in a higher
sentence for you.
Dalton was sentenced to 180 days in jail on the OWI count and 90
days on the OAR count, to be served consecutively.
¶22 Dalton filed a postconviction motion seeking to
withdraw his no contest pleas. He asserted that his counsel was
ineffective for failing to file a motion to suppress the
evidence resulting from the warrantless blood draw. In the
event his ineffective assistance of counsel claim proved
unsuccessful, he alternatively sought resentencing. He
contended that the circuit court erroneously exercised its
discretion by explicitly punishing him for exercising his
constitutional right to refuse a warrantless blood draw.
¶23 The circuit court denied Dalton's motion for plea
withdrawal without holding an evidentiary hearing. It concluded
"that exigent circumstances justified the warrantless blood draw
in this case" and that therefore "trial counsel is not
ineffective for failing to file a meritless motion[.]"
¶24 Dalton's motion for resentencing was also denied. In
denying the motion, the circuit court stated, "everybody knows a
court may not punish a person for exercise of the constitutional
right, a right to trial, right to remain silent, but there is no
right to refuse, so the [c]ourt has discretion and I think [has]
the responsibility to consider a refusal an aggravating factor
in sentencing an offender accordingly."
¶25 Dalton appealed both the denial of his plea withdrawal
motion and his motion for resentencing. During the pendency of
8
No. 2016AP2483-CR
the appeal, the United States Supreme Court decided Birchfield,
136 S. Ct. 2160.
¶26 The court of appeals reversed the circuit court. See
State v. Dalton, No. 2016AP6-CR, unpublished slip op. (Wis. Ct.
App. July 20, 2016) (Dalton I). It remanded the case to the
circuit court for a Machner5 hearing and directed the circuit
court to address Dalton's claim for resentencing in light of
Birchfield.
¶27 On remand, the circuit court held a Machner hearing,
where Dalton's trial counsel testified. Counsel stated that
prior to entering his pleas, Dalton had raised concerns about
the fact that the police had taken his blood without a warrant.
Counsel researched the issue and wrote a memo for her file. In
discussing with Dalton whether to file a motion to suppress,
counsel informed him that she "did not believe there was a basis
for it, and based on reviewing the discovery in conjunction with
the case law, and the facts surrounding the case, we talked
about it and determined there was not a basis for suppressing
the blood."
¶28 Following the Machner hearing, the circuit court again
denied Dalton's motion to withdraw his pleas, concluding that
exigent circumstances were present. In making this decision, it
observed:
5
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905
(Ct. App. 1979).
9
No. 2016AP2483-CR
This was a complicated and fluid situation. There's
potentially life-threatening injuries to the
Defendant, injuries to another individual. Sounds
like a chaotic night in Washington County in terms of
the need for law enforcement work in a variety of
contexts and relatively serious incidents. In
addition to the responsibilities the deputy had here
for the traffic stop, he had to secure the accident,
examine the scene, talk to witnesses, help get the
Defendant out of the vehicle, get him into an
ambulance, arrange for transport by helicopter, and
then follow him down there promptly, and had to wait
for him to get [] medical clearance before he could
have contact with him. And this happened outside of
Washington County. These are highly unusual factors.
These are the kind of factors that are appropriate to
consider on a case-by-case basis in making a
determination about whether exigent circumstances
exist.
¶29 With regard to counsel's decision not to file a motion
to suppress, the circuit court stated: "[counsel] considered the
propriety of a motion to suppress here. She decided not to file
one, because she didn't think it had legal merit. She talked to
the Defendant about it before deciding." The circuit court
viewed counsel's decision as "the result of an exercise of
reasonable professional judgment" and determined that her
assistance was "not ineffective for failing to file a meritless
motion."
¶30 Further, the circuit court determined that Birchfield
had no effect on its earlier sentencing decision. It found
Birchfield distinguishable from this case because "Wisconsin
doesn't criminalize a refusal." In the circuit court's view,
"[i]ncreasing a punishment of a defendant because of his refusal
is not the same as making that refusal a crime . . . ."
10
No. 2016AP2483-CR
Accordingly, the circuit court denied the motion for
resentencing.
¶31 Dalton again appealed, renewing his arguments that he
is entitled to withdraw his plea due to ineffective assistance
of counsel and that he is entitled to resentencing pursuant to
Birchfield. The court of appeals affirmed the circuit court,
concluding that "exigent circumstances existed that justified
the warrantless draw of [Dalton's] blood, and the circuit court
did not err in considering Dalton's refusal to the blood draw as
an aggravating factor in sentencing." State v. Dalton, No.
2016AP2483-CR, unpublished slip op., ¶1 (Wis. Ct. App. July 19,
2017) (Dalton II).
II
¶32 This case presents Dalton's claim of ineffective
assistance of counsel. For a claim of ineffective assistance of
counsel to be successful, a defendant must demonstrate both that
(1) counsel's representation was deficient; and (2) the
deficiency was prejudicial. State v. Maloney, 2005 WI 74, ¶14,
281 Wis. 2d 595, 698 N.W.2d 583 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). We need not address both
components of the inquiry if the defendant makes an insufficient
showing on one. Id.
¶33 Appellate review of an ineffective assistance of
counsel claim is a mixed question of law and fact. State v.
Erickson, 227 Wis. 2d 758, ¶21, 596 N.W.2d 749 (1999). The
circuit court's findings of fact will not be disturbed unless
they are clearly erroneous. Id. However, the ultimate
11
No. 2016AP2483-CR
determination of whether the attorney's performance falls below
the constitutional minimum is a question of law we review
independently of the determinations rendered by the circuit
court and court of appeals. Id.
¶34 To demonstrate deficient performance, a defendant must
show that counsel's representation fell below an objective
standard of reasonableness considering all the circumstances.
State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 640, 782
N.W.2d 695 (citing Strickland, 466 U.S. at 688). Counsel has a
duty to reasonably investigate or to make a reasonable decision
that renders particular investigations unnecessary. Carter, 324
Wis. 2d 640, ¶23.
¶35 In evaluating counsel's performance, this court is
highly deferential to counsel's strategic decisions. State v.
Balliette, 2011 WI 79, ¶26, 336 Wis. 2d 358, 805 N.W.2d 334.
Counsel's performance need not be perfect, or even very good, to
be constitutionally adequate. State v. Thiel, 2003 WI 111, ¶19,
264 Wis. 2d 571, 665 N.W.2d 305.
¶36 We are also asked to determine whether the circuit
court erroneously exercised its discretion at sentencing. A
circuit court's sentence is a discretionary decision. McCleary
v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971). On
appeal, review is limited to determining if discretion was
erroneously exercised. State v. Gallion, 2004 WI 42, ¶17, 270
Wis. 2d 535, 678 N.W.2d 197. An exercise of discretion is
erroneous if it is based on an error of fact or law. Zarder v.
Humama Ins. Co., 2010 WI 35, ¶21, 324 Wis. 2d 325, 782
12
No. 2016AP2483-CR
N.W.2d 682. Additionally, a circuit court erroneously exercises
its sentencing discretion when it "actually relies on clearly
irrelevant or improper factors." State v. Alexander, 2015 WI 6,
¶17, 360 Wis. 2d 292, 858 N.W.2d 662 (quoting State v. Harris,
2010 WI 79, ¶66, 326 Wis. 2d 685, 786 N.W.2d 409).
III
¶37 We begin by setting forth the principles of Fourth
Amendment law that govern blood draws in OWI cases. Next we
apply those principles to the facts of this case, examining
Dalton's contention that his counsel was ineffective for failing
to file a motion to suppress the results of the warrantless
blood draw. We then turn to Dalton's request for resentencing
due to the circuit court's alleged violation of Birchfield.
A
¶38 The Fourth Amendment to the United States Constitution
and Article I, Section 11 of the Wisconsin Constitution protect
against unreasonable searches and seizures.6 State v. Eason,
6
The Fourth Amendment to the United States Constitution
sets forth:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath of affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const., Amend. IV. Article I, Section 11 of the Wisconsin
Constitution contains substantially the same language. See
State v. Scull, 2015 WI 22, ¶18 n.3, 361 Wis. 2d 288, 862
N.W.2d 562.
13
No. 2016AP2483-CR
2001 WI 98, ¶16, 245 Wis. 2d 206, 629 N.W.2d 625. Warrantless
searches are presumptively unreasonable unless an exception to
the warrant requirement applies. State v. Tullberg, 2014 WI
134, ¶30, 359 Wis. 2d 421, 857 N.W.2d 120 (citations omitted).
¶39 An exception to the warrant requirement applies when
there are exigent circumstances, i.e. if the need for a search
is urgent and there is insufficient time to obtain a warrant.
Id. There are four circumstances which, when measured against
the time needed to obtain a warrant, constitute the exigent
circumstances required for a warrantless search: (1) an arrest
made in "hot pursuit," (2) a threat to safety of a suspect or
others, (3) a risk that evidence will be destroyed, and (4) a
likelihood that the suspect will flee. State v. Hughes, 2000 WI
24, ¶25, 233 Wis. 2d 280, 607 N.W.2d 621.
¶40 In an OWI case, the natural dissipation of alcohol in
the bloodstream may present a risk that evidence will be
destroyed and may therefore support a finding of exigency in a
specific case. Missouri v. McNeely, 569 U.S. 141, 156 (2013).
"While experts can work backwards from the BAC at the time the
sample was taken to determine the BAC at the time of the alleged
offense, longer intervals may raise questions about the accuracy
of the calculation." Id. For this reason, exigent
circumstances to justify a warrantless blood draw "may arise in
the regular course of law enforcement due to delays from the
warrant application process." Id.
¶41 Evidentiary rules reflect the fact that blood tests
decrease in accuracy as more time passes. Results of a blood
14
No. 2016AP2483-CR
test are automatically admissible to prove intoxication or
demonstrate a prohibited alcohol concentration "if the sample
was taken within 3 hours after the event to be proved." Wis.
Stat. § 885.235(1g) (2013-14).7 After this three-hour window,
the evidence "is admissible only if expert testimony establishes
its probative value and may be given prima facie effect only if
the effect is established by expert testimony." § 885.235(3).
¶42 Yet the dissipation of alcohol in the blood does not
create an exigency per se. McNeely, 569 U.S. at 144. Rather,
"[w]hether a warrantless blood test of a drunk-driving suspect
is reasonable must be determined case by case based on the
totality of the circumstances." Id. at 156.
¶43 The test for determining the existence of exigent
circumstances is objective. Tullberg, 359 Wis. 2d 421, ¶41.
Courts must determine whether the police officers under the
circumstances known to them at the time reasonably believed that
a delay in procuring a warrant would risk the destruction of
evidence. Id. (quoting State v. Robinson, 2010 WI 80, ¶30, 327
Wis. 2d 302, 786 N.W.2d 463).
B
¶44 Here the totality of the circumstances amounted to, in
the words of the circuit court, a "complicated and fluid
situation" and a "chaotic night in Washington County." Although
McNeely establishes that exigent circumstances "may arise in the
7
All subsequent references to the Wisconsin statutes are to
the 2013-14 version unless otherwise indicated.
15
No. 2016AP2483-CR
regular course of law enforcement due to delays from the warrant
application process[,]" 569 U.S. at 156, the circumstances with
which law enforcement officers were presented in this case went
well beyond the "regular course of law enforcement."
¶45 Events on the evening in question presented the
officers with many moving parts that inform our analysis.
First, there were two injured people who needed urgent medical
attention. A law enforcement officer "who is confronted with an
accident scene[] should first attend to the emergency
circumstances at hand." Tullberg, 359 Wis. 2d 421, ¶49. The
officers' decision to tend to Dalton and his passenger's medical
needs at the expense of requesting a warrant was certainly
reasonable.
¶46 Second, there was a need to examine and secure the
scene. An officer's responsibilities at an accident scene
include securing evidence and ensuring the safety of those
traveling on the road near and through the scene. State v.
Howes, 2017 WI 18, ¶46, 373 Wis. 2d 468, 893 N.W.2d 812. That
the safety of passersby would take precedence over applying for
a warrant is, again, reasonable.
¶47 Third, it was imperative that law enforcement speak
with Dalton's passenger while events were fresh in his mind.
Just as alcohol dissipates in the blood, the memories of
witnesses fade. Interviewing witnesses can give officers
necessary information to determine whether they have probable
cause for a warrant and therefore may be a necessary
prerequisite to a warrant application. Accordingly, it was
16
No. 2016AP2483-CR
reasonable for Deputy Vanderheiden to drive to the hospital in
Menomonee Falls to speak with the passenger before applying for
a warrant for Dalton's blood.
¶48 Finally, the crash at issue here was not the only
incident requiring law enforcement attention that evening. Four
officers were needed to respond to an accident involving
personal injury, a fleeing driver, a vehicle in the middle of
the road, and downed power poles. Two others were dispatched to
an auto theft. This left two deputies to patrol the entirety of
Washington County, one assigned to the northern half and one to
the southern half of the 432 square mile county. Given these
other incidents, law enforcement's actions were certainly
reasonable under the circumstances.
¶49 This court is not in the business of second-guessing
law enforcement's reasonable allocation of resources in a
complex and evolving situation. See U.S. v. Sokolow, 490 U.S.
1, 11 (1989) (explaining that courts do not "indulge in
unrealistic second-guessing" of police's "swift, on-the-spot
decisions.") When presented with multifaceted and chaotic
circumstances like those presented here, law enforcement needs
flexibility to determine its priorities.
¶50 Dalton essentially contends that officers should have
prioritized arresting him over his medical needs and the safety
of the scene, not to mention the additional happenings in the
county. His assertion is unpersuasive. Police serve a dual
purpose at an accident scene. They are present to investigate
the cause of the accident and gather evidence of wrongdoing, but
17
No. 2016AP2483-CR
they are also there as first responders to injuries. See 3
Wayne R. LaFave, Search & Seizure § 6.6 (5th ed. 2012) ("The
police have complex and multiple tasks to perform in addition to
identifying and apprehending persons committing serious criminal
offenses[,]" including "aid[ing] individuals who are in danger
of physical harm" and "provid[ing] other services on an
emergency basis.").
¶51 The touchstone of the Fourth Amendment is
reasonableness. Ohio v. Robinette, 519 U.S. 33, 39 (1996).
Officers' prioritizing safety and medical needs over a warrant
application when presented with these circumstances was
reasonable.
¶52 Given the surrounding circumstances, the dissipation
of alcohol in Dalton's blood and the rapidly closing three-hour
window to accomplish a presumptively admissible and accurate
blood draw, Deputy Stolz was presented with an exigent
circumstance. Wis. Stat. § 885.235(1g). Such events gave rise
to a reasonable belief that a delay in procuring a warrant would
risk the destruction of evidence.8 See Tullberg, 359
Wis. 2d 421, ¶41.
8
We observe also that the record reflects that at the time
of these events, Washington County did not have a procedure in
place for warrants to be fully completed by email or phone.
Deputy Vanderheiden testified that Washington County's then-
existing protocol did not include emailing a search warrant to a
judge, conducting a telephonic search warrant, or faxing a
warrant application. Rather, the protocol required an in-person
meeting with the judge that, according to Deputy Vanderheiden's
testimony, would take about ten minutes.
(continued)
18
No. 2016AP2483-CR
¶53 Consequently, a motion to suppress the blood evidence
would have been meritless, and the failure to file it does not
constitute deficient performance.9 State v. Cummings, 199
Wis. 2d 721, 747 n.10, 546 N.W.2d 406. Because we determine
that Dalton's counsel was not deficient, we need not address the
prejudice prong of the analysis. State v. Breitzman, 2017 WI
100, ¶81, 378 Wis. 2d 431, 904 N.W.2d 93.
¶54 We therefore conclude that exigent circumstances
existed, permitting police to draw Dalton's blood absent a
warrant. Accordingly, his counsel was not ineffective for
failing to file a meritless motion to suppress.
IV
¶55 Having determined that Dalton's counsel was not
ineffective, we turn next to Dalton's contention that the
circuit court erroneously exercised its discretion at
sentencing. Specifically, Dalton argues that the circuit court
impermissibly lengthened his sentence because he refused a
Accordingly, Deputy Stolz testified that in order to obtain
a warrant, he would have needed to fill out a form and contact
the judge by phone. The judge would then direct him to an in-
person meeting place. Thus, we consider Washington County's
protocol at the time of this incident as part of the totality of
the circumstances.
9
Further, Dalton's trial counsel diligently researched the
legal issue presented. The record reflects that Dalton's trial
counsel wrote a memo for her file on the issue of suppressing
the blood draw evidence. She concluded that there was no basis
for such a motion, and after discussing the issue with Dalton,
did not proceed with filing one.
19
No. 2016AP2483-CR
warrantless blood draw, thereby violating Birchfield, 136 S. Ct.
2160.
¶56 A circuit court must set forth the reasons for its
sentence on the record. Wis. Stat. § 973.017(10m); Gallion, 270
Wis. 2d 535, ¶4. In crafting a sentence, circuit courts are to
consider the protection of the public, the gravity of the
offense, and the rehabilitative needs of the defendant.
Gallion, 270 Wis. 2d 535, ¶44. A circuit court erroneously
exercises its discretion when it bases its decision on an error
of law or fact. Zarder, 324 Wis. 2d 325, ¶21.
¶57 In Birchfield, the United States Supreme Court
considered whether a law making "it a crime for a motorist to
refuse to be tested after being lawfully arrested for driving
while impaired" violates the Fourth Amendment's proscription
against unreasonable searches and seizures. 136 S. Ct. at 2166-
67. The Court concluded "that motorists cannot be deemed to
have consented to submit to a blood test on pain of committing a
criminal offense." Id. at 2186.
¶58 Moving to the final issue in its analysis, the
Birchfield court acknowledged that "prior opinions have referred
approvingly to the general concept of implied-consent laws that
impose civil penalties and evidentiary consequences on motorists
who refuse to comply." Id. at 2185. Yet, the court emphasized
that criminal penalties may not be imposed for a refusal. "It
is another matter, however, for a State not only to insist upon
an intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test." Id. "There must be a
20
No. 2016AP2483-CR
limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public
roads." Id.
¶59 In sum, Birchfield dictates that criminal penalties
may not be imposed for the refusal to submit to a blood test.
136 S. Ct. at 2185. A lengthier jail sentence is certainly a
criminal penalty. See Doering v. WEA Ins. Grp., 193
Wis. 2d 118, 141, 532 N.W.2d 432 (1995) (referring to
imprisonment as a criminal penalty); State v. Peterson, 104
Wis. 2d 616, 621, 312 N.W.2d 784 (1981) (same).
¶60 In setting forth the reasons for its sentence on the
record, the circuit court stated in relevant part:
The other thing you did is anybody who drives a motor
vehicle in Wisconsin impliedly consents to a blood or
breath draw after they're arrested. And you were
arrested, and you disregarded that, and you will be
punished for that today. You don't have the right not
to consent. And that's going to result in a higher
sentence for you.
It was thus definitive in its intent to give Dalton a longer
sentence for the sole reason that he refused to submit to a
blood test. This is a violation of Birchfield.
¶61 Pursuant to the circuit court's unequivocal sentencing
remarks, Dalton was criminally punished for exercising his
21
No. 2016AP2483-CR
constitutional right.10 Established case law indicates that this
is impermissible. Harman v. Forssenius, 380 U.S. 528, 540
(1965); Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.2d 406
(1972) (explaining that "[a] defendant cannot receive a harsher
sentence solely because he availed himself of one of his
constitutional rights."); see also Kubart v. State, 70
Wis. 2d 94, 97, 233 N.W.2d 404 (1975) ("A defendant cannot
receive a harsher sentence solely because he has availed himself
of the important constitutional right of trial by jury.").
¶62 The State attempts to avoid this conclusion by
contending that refusal to submit to a blood test is not a
stand-alone crime in Wisconsin. It also asserts that any
increase in a sentence within the statutorily prescribed range
does not morph a sentencing consideration into a criminal
penalty. We find each of these contentions unconvincing.
¶63 As to the State's first argument, the fact that
refusal is not a stand-alone crime does not alter our analysis.11
10
Chief Justice Roggensack's dissent's reliance on South
Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983), is misplaced.
Neville was decided pre-McNeely and pre-Birchfield. Both
McNeely and Birchfield have had a significant effect on drunk
driving law, and highlight the constitutional nature of a blood
draw. Both cases analyze breath and blood tests as Fourth
Amendment searches and appear to supersede the statement from
the Fifth Amendment Neville case on which Chief Justice
Roggensack's dissent relies.
11
The circuit court distinguished Birchfield on the basis
that Wisconsin does not criminalize refusal. See supra, ¶30.
For the same reasons we refute the State's argument here, we
find the circuit court's distinction inapt.
22
No. 2016AP2483-CR
This is not a distinction the Birchfield Court drew. Although
Birchfield states that "motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a
criminal offense[,]" it also addresses the wider
impermissibility of criminal penalties for refusal, not only
criminal charges. See Birchfield, 136 S. Ct. at 2185-86.
¶64 Dalton's sentencing transcript indicates that the
circuit court's comments were straightforward and unequivocal.
The circuit court plainly signaled that it was giving Dalton a
harsher penalty because of his refusal.12 The fact that Dalton
could not be charged with a separate crime does not change the
fact that he explicitly received a stiffer sentence based solely
on his refusal to submit to an evidentiary blood test.
¶65 Second, the State asserts that refusal is a legitimate
sentencing consideration because it reflects on the character of
the defendant, and it may be taken into account as long as it
does not push the punishment above the statutorily allowed
maximum for OWI. Accepting the State's argument would render
the limitations of Buckner and Kubart a nullity. Taken to its
12
The dissents disregard the circuit court's unambiguous
words, instead insisting that the circuit court considered
Dalton's refusal to submit to a blood draw as a factor
demonstrating Dalton's disregard of the law. See Chief Justice
Roggensack's dissent, ¶96; Justice Ziegler's dissent, ¶¶104-05.
The record does not bear out their assertion. The circuit court
stated, "You don't have the right not to consent. And that's
going to result in a higher sentence for you." The causal link
between the Dalton's refusal and his lengthier sentence could
not have been made more apparent.
23
No. 2016AP2483-CR
logical extreme, the State's argument would allow a circuit
court to increase a sentence because a defendant exercised the
right to a jury trial, did not consent to a search of his home,
or exercised his right to remain silent, as long as the sentence
is within the statutory range. Contrarily, our case law
indicates that a defendant may not be punished in this manner.
¶66 The Birchfield court recognized that "[t]here must be
a limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public
roads." 136 S. Ct. at 2185. The limitation it established
directs: no criminal penalties may be imposed for refusal.
Here the record demonstrates that Dalton was criminally
penalized for his refusal to submit to a blood draw. By
explicitly punishing Dalton for refusal, the circuit court
violated Birchfield. In denying Dalton's postconviction motion
after remand, it made an error of law by misapplying Birchfield.
Such error constitutes an erroneous exercise of discretion.
¶67 We therefore conclude that the circuit court violated
Birchfield by explicitly subjecting Dalton to a more severe
criminal penalty because he refused to provide a blood sample
absent a warrant. Consequently, Dalton is entitled to
resentencing.
V
¶68 In sum, we conclude that exigent circumstances
existed, permitting police to draw Dalton's blood absent a
warrant. Accordingly, his counsel was not ineffective for
failing to file a meritless motion to suppress. We further
24
No. 2016AP2483-CR
conclude that the circuit court violated Birchfield by
explicitly subjecting Dalton to a more severe criminal penalty
because he refused to provide a blood sample absent a warrant.
Consequently, Dalton is entitled to resentencing.
¶69 Accordingly, we reverse the decision of the court of
appeals, and remand to the circuit court for resentencing.
By the Court.—The decision of the court of appeals is
reversed, and the cause remanded to the circuit court.
25
No. 2016AP2483-CR.pdr
¶70 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
circuit court's sentencing of Patrick H. Dalton does not
conflict with Birchfield v. North Dakota, 579 U.S. ___, 136
S. Ct. 2160 (2016) and is well within the circuit court's
sentencing discretion. Because the majority opinion
misunderstands the directive of Birchfield and expands the
statutory opportunity to withdraw consent pursuant to Wis. Stat.
§ 343.305(4) into a constitutional right to refuse a blood draw
contrary to South Dakota v. Neville, 459 U.S. 553 (1983), I
respectfully dissent.
I. BACKGROUND
¶71 The majority opinion ably narrates the circumstances
surrounding Dalton's arrest and conviction for Operating While
Intoxicated (OWI), second offense, and Operating After
Revocation (OAR). Therefore, I shall relate only that which is
necessary to assist the reader's understanding of this dissent.
¶72 Dalton was involved in a high-speed crash in which he
and his passenger were seriously injured. They were transported
to two different hospitals. Dalton exhibited overt signs of
intoxication and Deputy Stolz arrested him for driving while
intoxicated. Deputy Stolz read Dalton the Informing the Accused
form and Dalton withdrew his consent to a blood draw.
¶73 Deputy Stolz asked a nurse to draw a blood sample and
she did so. Dalton had a blood alcohol level of 0.238. This is
nearly three times the level of 0.08 for which Dalton could have
been convicted of unlawful intoxication. Wis. Stat.
§§ 340.01(46m)(a) and 346.63(1)(b).
1
No. 2016AP2483-CR.pdr
¶74 At sentencing after Dalton's conviction for OWI, as a
second offense, and conviction for OAR, the circuit court
discussed the seriousness of the accident and how Dalton could
have killed his friend and himself. The court commented on his
level of intoxication and the foul language he used with the
arresting officer, who also had assisted in securing the med-
flight that Dalton needed. The court commented on Dalton's
withdrawal of consent to a blood draw as additional evidence of
Dalton's disregard of his obligations under the law. The
majority opinion elicits no other comment by the sentencing
court that it concludes was objectionable.
II. DISCUSSION
A. Standard of Review
¶75 We review whether Dalton's sentencing for an OWI
conviction comes within the proscriptions of Birchfield,
independent of the court of appeals and circuit court's
decisions while benefitting from their discussions. State v.
Brereton, 2013 WI 17, ¶17, 345 Wis. 2d 563, 826 N.W.2d 369. We
review a circuit court's sentencing decision under the erroneous
exercise of discretion standard. State v. Alexander, 2015 WI 6,
¶16, 360 Wis. 2d 292, 858 N.W.2d 662; State v. Gallion, 2004 WI
42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197.
B. Birchfield Principles
¶76 Birchfield is the latest United States Supreme Court
decision in the saga of implied-consent laws. The Birchfield
2
No. 2016AP2483-CR.pdr
decision is a combination of three cases, but I will focus on
Danny Birchfield's circumstances.1
¶77 Coming upon Birchfield after he drove his vehicle off
a North Dakota highway, a state trooper stopped to help.
Birchfield, 136 S. Ct. at 2170. It soon became apparent that
Birchfield was intoxicated. Id. The trooper arrested
Birchfield and informed him of his obligations under North
Dakota law to agree to a blood alcohol concentration (BAC) test
and that refusing to submit to a blood draw would subject him to
criminal penalties.2 Id. Nevertheless, Birchfield refused. Id.
He then pleaded guilty to a misdemeanor violation of the refusal
statute, while contending that the Fourth Amendment prohibited
criminalizing his refusal. Id. at 2170-71.
¶78 The Court explained that it granted certiorari in
Birchfield and the two companion cases "in order to decide
whether motorists lawfully arrested for drunk driving may be
convicted of a crime or otherwise penalized for refusing to take
a warrantless test measuring the alcohol in their bloodstream."
Id. at 2172. The Court sharply focused on the Fourth Amendment
issue. "The question, then, is whether the warrantless searches
at issue here were reasonable," id. at 2173, and "how the
1
The decision in Birchfield v. North Dakota, 579 U.S. ___,
136 S. Ct. 2160 (2016), addressed the contentions of Danny
Birchfield, William Bernard, Jr., and Steve Beylund. Although
all involved implied-consent laws, all were different. Those
circumstances relating to Danny Birchfield are most relevant to
my discussion.
2
In North Dakota, criminal penalties applied to breath,
blood and urine refusals. Id. at 2170.
3
No. 2016AP2483-CR.pdr
search-incident-to-arrest doctrine applies to breath and blood
tests incident to such arrests," id. at 2174.
¶79 Although the Court approved warrantless breath tests
for those arrested for operating a vehicle while intoxicated,
concluding they do not implicate any significant privacy
concerns, id. at 2178, the Court concluded that blood draws did
involve privacy concerns due to "significant bodily intrusions"
required for blood draws, id. However, the Court also concluded
that "requiring the police to obtain a warrant in every case
would impose a substantial burden but no commensurate benefit."
Id. at 2181-82. Although the Court concluded that "Birchfield
was threatened with an unlawful search," because his refusal
would be criminalized under North Dakota law, id. at 2186, the
Court was less than clear about whether implied consent laws
that impose civil penalties and evidentiary consequences on
motorists who refuse required a warrant for a blood draw.
¶80 The Court seemed to approve blood draws "based on the
driver's legally implied consent to submit to them." Id. at
2185. The Court confirmed its approval of "implied-consent laws
that impose civil penalties and evidentiary consequences on
motorists who refuse to comply." Id. Therefore, refusal to
comply with an implied-consent law's consent to submit to a
blood draw could be sanctioned administratively. "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).
4
No. 2016AP2483-CR.pdr
¶81 However, the Court concluded that imposing criminal
penalties for withdrawing consent to a blood draw went too far.
"It is another matter, however, for a State not only to insist
upon an intrusive blood test, but also to impose criminal
penalties on the refusal to submit to such a test." Id. The
Court then concluded that "motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a
criminal offense." Id. at 2186.
¶82 Under the circumstances Dalton presents in the case
before us, his refusal was not criminalized. Wis. Stat.
§ 343.305(4). Rather, the misdemeanor of which Dalton was
convicted was a consequence of his withdrawing consent that
resulted in a revocation under § 343.305(10), which then counted
as his second OWI conviction pursuant to Wis. Stat.
§ 346.65(2)(am)2. Wis. Stat. § 343.307(1)(f). If his refusal
were counted as his first OWI, there would have been no criminal
penalties. § 346.65(2)(am)1.
¶83 Stated otherwise, the criminal sanction was due to
Dalton's repetitive driving while intoxicated. Moving to
criminal penalties because of repetitive OWI's was noted without
objection in Birchfield. Id. at 2169 ("the State imposes
increased mandatory minimum sentences for drunk-driving
recidivists.").
¶84 The majority opinion aligns Birchfield with what it
asserts is Dalton's "more severe criminal penalty because he
refused to provide a blood sample absent a warrant."3 The
3
Majority op., ¶4.
5
No. 2016AP2483-CR.pdr
"penalty" to which the majority refers was its own evaluation of
the discretionary sentencing of the circuit court for Dalton's
second OWI and first OAR convictions. Birchfield has nothing to
do with discretionary sentencing decisions. It turns entirely
on a mandatory criminal misdemeanor charge that North Dakota
imposed for refusing to submit to a blood draw. Id. at 2170-71.
¶85 The majority opinion is expanding Birchfield into
discretionary sentencing decisions for a repetitive OWI
conviction that required a criminal penalty. See Wis. Stat.
§ 346.65(2)(am)2. Birchfield's expansion is apparent from the
majority opinion's definition of "criminal penalty": "A
lengthier jail sentence is certainly a criminal penalty."4 That
is not how "criminal penalty" was defined in Birchfield. There,
the comparison was between administrative penalties for refusal
and statutorily required criminal penalties for refusal.
Administrative penalties for withdrawing consent were
permissible and criminal penalties were not. Id. at 2186.
¶86 In the case before us, the majority opinion misleads
the reader because it does not explain that Dalton did not
receive a criminal penalty for refusing to submit to a blood
draw. Rather, he received a criminal penalty because he had
committed a second OWI. Wis. Stat. §§ 343.305(10)(b)1. and
343.307(2)(f).
¶87 The majority opinion doubles down on its erroneous
conclusion of law by asserting "Dalton was criminally punished
4
Majority op., ¶59.
6
No. 2016AP2483-CR.pdr
for exercising his constitutional right."5 First, the majority
opinion contradicts the United States Supreme Court which has
held, Dalton had no constitutional right to withdraw his consent
that he gave when he drove his vehicle on Wisconsin highways
after drinking to the point of intoxication. Neville, 459 U.S.
at 560 n.10 & 565 (explaining that "a person suspected of drunk
driving has no constitutional right to refuse to take a blood-
alcohol test" and that the person's "right to refuse the blood-
alcohol test [] is simply a matter of grace bestowed by the
South Dakota legislature."); see also Birchfield, 136 S. Ct at
2186 ("the Fourth Amendment did not require officers to obtain a
warrant prior to demanding the [breath] test, and Bernard had no
right to refuse it.").
¶88 Second, the cases cited by the majority do not provide
support for the contention that Dalton had a constitutional
right to refuse a blood test as the majority contends. To the
contrary, the cited cases have nothing to do with implied-
consent laws. Harman v. Forssenius, 380 U.S. 528 (1965)
involved restrictions on the constitutional right to vote
through the use of poll taxes. Buckner v. State, 56 Wis. 2d
539, 202 N.W.2d 406 (1972) involved an offhand court comment at
sentencing that Buckner contended invaded his right to remain
silent. Kubart v. State, 70 Wis. 2d 94, 233 N.W.2d 404 (1975)
involved twelve separate counts of burglary, only one of which
was tried to a jury. The defendant contended that the eight
5
Majority op., ¶61.
7
No. 2016AP2483-CR.pdr
year sentence was harsh and an erroneous exercise of discretion
based on his going to trial on one of the counts. Once again
the majority opinion tries to invoke Birchfield for purely
sentencing decisions. Birchfield has nothing to do with a
circuit court's sentencing discretion.
¶89 Also of concern is that the majority opinion could be
read to conclude that Birchfield prohibits the misdemeanor
penalty that Wis. Stat. § 346.65(2)(am)2. requires due to
Dalton's revocation for refusing to take a requested test
counting as a second OWI. In the future, recidivists may
withdraw consent for all tests for intoxication if their
refusals cannot lead to criminal penalties due to OWI recidivism
that would have been imposed upon proof of intoxication from
actual blood, breath or urine tests. See Wis. Stat.
§§ 343.305(10); 343.307(1)(f) and 346.65(2)(am)2-7.
¶90 The United States Supreme Court should consider
granting review herein to explain the Fourth Amendment
parameters of Birchfield when state law penalties for
withdrawing consent are civil and evidentiary and criminal
penalties occur for recidivism. In addition, because the
majority opinion chooses to disregard Neville's explicit
statements that a person's refusal to permit a blood draw after
being arrested for OWI is a matter of legislative grace not one
of constitutional right, proof possible at OWI trials may be
compromised by the exercise of this new Fourth Amendment right.
These issues need attention and can receive none further in
Wisconsin courts.
8
No. 2016AP2483-CR.pdr
C. Sentencing
¶91 Sentencing is a discretionary decision of the circuit
court. Gallion, 270 Wis. 2d 535, ¶17. A circuit court's
exercise of discretion is afforded "a strong presumption of
reasonability" because the circuit court is able to view the
demeanor of the defendant and assess competing sentencing
interests. Id., ¶18.
¶92 The focus of a sentencing court's consideration should
be the gravity of the offense, the character and rehabilitative
needs of the offender and the need for public protection. State
v. Sarabia, 118 Wis. 2d 655, 673, 348 N.W.2d 527 (1984). A
sentencing court properly exercises its discretion when it
relies on controlling law and sets out reasoning that supports
its sentencing. McCleary v. State, 49 Wis. 2d 263, 281, 182
N.W.2d 512 (1971). When a circuit court actually relies on
improper factors, it erroneously exercises its discretion.
Alexander, 360 Wis. 2d 292, ¶17.
¶93 In Dalton's sentencing, the circuit court was
concerned with Dalton's repeated lack of respect for the law.
The court noted that this was Dalton's second OWI and his BAC of
0.238 is so far above the legal limit that it evidences a
complete disregard of his obligation to refrain from consuming
significant alcohol before driving. Dalton was operating after
revocation when he incurred this second OWI offense, and he
drove recklessly, at close to 100 miles per hour, causing severe
injury to his passenger and himself.
9
No. 2016AP2483-CR.pdr
¶94 Dalton objects to the circuit court's reference to his
withdrawal of consent to submit to a blood draw as sufficient
reason to remand for resentencing. The majority opinion agrees
with Dalton.6 However, that one comment is insufficient to show
that the circuit court erroneously exercised its sentencing
discretion.
¶95 The court made a record of its concerns for Dalton's
lack of respect for the law, and failing to authorize a blood
draw was just one such incident. The court was concerned with
Dalton's level of intoxication, 0.238. Wisconsin Stat.
§ 346.65(2m)(a) guides the effect of BAC level in sentencing.
It provides:
In imposing a sentence under sub. (2) for a violation
of s. 346.63(1)(am) or (b) or (5) . . . the court
shall review the record and consider the aggravating
and mitigating factors in the matter. If the amount
of alcohol in a person's blood . . . is known, the
court shall consider that amount as a factor in
sentencing.
¶96 Dalton's BAC level supports the circuit court's
sentence as does his reckless driving and his driving after
revocation. All bear on Dalton's character and demonstrate that
it will not be easy to get him to turn his conduct around. The
majority opinion takes the circuit court's singular statement
about Dalton's refusal out of context. Read within the court's
full sentencing discussion, it was just one of many factors that
showed Dalton's complete disregard of the law, which is
indicative of his character. The circuit court did not
6
Majority op., ¶4.
10
No. 2016AP2483-CR.pdr
erroneously exercise its discretion. State v. Salas Gayton,
2016 WI 58, ¶¶3, 15, 370 Wis. 2d 264, 882 N.W.2d 459 (concluding
that the circuit court's comments on Mr. Gayton's status as an
illegal alien did not demonstrate reliance on an improper factor
at sentencing).
III. CONCLUSION
¶97 The circuit court's sentencing of Dalton does not
conflict with Birchfield and is well within the circuit court's
sentencing discretion. Because the majority opinion
misunderstands the directive of Birchfield and expands the
statutory opportunity to withdraw consent pursuant to Wis. Stat.
§ 343.305(4) into a constitutional right to refuse a blood draw,
I respectfully dissent.
¶98 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this dissent.
11
No. 2016AP2483-CR.akz
¶99 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). The
majority opinion seriously errs. Driving on a public highway is
not a constitutional right nor is it a right at all. When
someone chooses to drive in the public domain, they must comply
with state statutes commensurate with that privilege. Our
legislature requires, for example, a public highway driver to
possess a valid driver's license. See Wis. Stat. § 343.18(1).
The consequence for not having one is a civil ticket. See
§ 343.18(3). Our legislature has also determined, as many
states have, that there are consequences for a public highway
driver who drives intoxicated. One consequence of doing so is
to have impliedly consented to a blood test, provided of course
that there is sufficient evidence that they are driving
intoxicated. See Wis. Stat. § 343.305(3). They still may
refuse this implied consent, but, like driving without a
license, that refusal will result in a civil ticket. See
§ 343.305(9). It might be one thing if the consequence for
refusing that test were a criminal charge, as in Birchfield v.
North Dakota, 579 U.S. ____, 136 S. Ct. 2160 (2016), but in
Wisconsin, as in many states, the consequence under our implied
consent law is civil.
¶100 Relying on refusal to consent in determining sentence
for an OWI does not change the civil nature of the refusal
ticket. Judges can and do consider a variety of factors when
imposing sentence——including conduct that is not against the law
at all (e.g., lack of remorse)——and the obstructive and
prohibited behavior of refusal is but one proper consideration.
1
No. 2016AP2483-CR.akz
Thus, the majority errs in concluding that the circuit court
erroneously exercised its discretion when it considered Dalton's
refusal to consent to the blood draw during sentencing because
considering refusal to consent as a factor during sentencing is
not the same as criminalizing refusal. Therefore, although the
United States Supreme Court proscribed criminalizing refusal in
Birchfield, it did not proscribe, and in fact seemingly approved
of, a civil penalty for refusal. See Birchfield, 136 S. Ct. at
2185-86. I therefore disagree with the majority in our case
today for at least two reasons: first, the court interprets
Birchfield's holding too broadly; and second, its analysis
erroneously equates "sentencing factor" with a "criminal
statute." In sum, the majority opinion today rewrites
Birchfield and redrafts state statutes, and, in so doing,
unnecessarily creates significant risk to the users of our
public highways.
¶101 Accordingly, I respectfully dissent,1 and I join Chief
Justice Roggensack's call for the United States Supreme Court to
assist the state courts with respect to this issue.
1
I do not disagree with the majority's analysis in Part
III.B of the opinion, which concludes that Dalton's trial
counsel was not ineffective for failing to file a motion to
suppress the blood evidence because such a motion would have
been meritless given the exigent circumstances "[giving] rise to
a reasonable belief that a delay in procuring a warrant would
risk the destruction of evidence." Majority op., ¶52; id.,
¶¶53-54. This issue, however, is not why we took this case.
2
No. 2016AP2483-CR.akz
I. WISCONSIN CIVIL, NORTH DAKOTA CRIMINAL
¶102 In Wisconsin, refusal to consent to a blood draw
subjects a driver to civil, not criminal penalties. See Wis.
Stat. § 343.305(9). By contrast, the North Dakota statutes at
issue in Birchfield had made it a crime to refuse to consent.
See 136 S. Ct. at 2170 (citing N.D. Cent. Code Ann.
§§ 39-08-01(2), 39-20-01(3)(a)). And the United States Supreme
Court concluded that the North Dakota statutes were
unconstitutional for that specific reason. The Court concluded
that "motorists cannot be deemed to have consented to submit to
a blood test on pain of committing a criminal offense." Id. at
2186 (emphasis added). Thus, Birchfield stands only for the
narrow proposition that implied consent statutes which make it a
crime to refuse to consent are unconstitutional, and Wisconsin's
implied consent law, which does not make it a crime to refuse to
consent and imposes only civil penalties for refusal, is
therefore not unconstitutional under Birchfield. The majority
errs in conflating these distinctions.
¶103 Furthermore, the Court in Birchfield "referred
approvingly to the general concept of implied-consent laws that
impose civil penalties and evidentiary consequences on motorists
who refuse to comply," and indicated that "nothing [said] here
should be read to cast doubt on them." 136 S. Ct. at 2185.
Thus, Wisconsin's implied consent law, which imposes only civil
penalties, is not only not unconstitutional under Birchfield,
but is also seemingly approved by the Supreme Court. Today, our
majority rewrites the Supreme Court opinion to fit its analysis.
3
No. 2016AP2483-CR.akz
¶104 In sum, Birchfield narrowly holds only that state
statutes which make it a crime to refuse to consent are
unconstitutional. That is not what we have here. In Wisconsin,
it is not a crime to refuse to consent; rather, Wis. Stat.
§ 343.305(9) imposes only civil penalties (i.e., license
revocation). Thus, Birchfield does not dictate the outcome of
this case and the majority opinion today is at odds with, rather
than consistent with, the United States Supreme Court. It reads
Birchfield too broadly and then misapplies Birchfield to send
this case back for resentencing, requiring the circuit court to
ignore relevant, pertinent, and objective facts that can and
should reasonably be considered by the circuit court when
imposing sentence on an individual who had been convicted for
drunk driving.
II. SENTENCING FACTOR, NOT A CRIME
¶105 The majority erroneously equates North Dakota's
unconstitutional criminal statute with the factors a judge
sentencing a drunk driver can consider——as judges have done for
decades——namely, that the defendant refused to consent. In so
doing, the court rewrites Birchfield and redrafts state
statutes. The court here concludes:
In sum, Birchfield dictates that criminal
penalties may not be imposed for the refusal to submit
to a blood test. 136 S. Ct. at 2185. A lengthier
jail sentence is certainly a criminal penalty. See
Doering v. WEA Ins. Grp., 193 Wis. 2d 118, 141, 532
N.W.2d 432 (1995) (referring to imprisonment as a
criminal penalty); State v. Peterson, 104 Wis. 2d 616,
621, 312 N.W.2d 784 (1981) (same).
Majority op., ¶59. In so doing, the court commits error.
4
No. 2016AP2483-CR.akz
¶106 First, as noted above, see supra ¶¶102-104, Birchfield
did not broadly hold that "criminal penalties may not be imposed
for the refusal to submit to a blood test," majority op., ¶59;
rather, Birchfield held more narrowly that a state statute which
made it a crime to refuse to consent to a blood draw is
unconstitutional.
¶107 Second, even if Birchfield stood for that broad
proposition, reliance on refusal as a factor in sentencing still
does not "criminalize" refusal in Wisconsin; that is, it does
not transform Wisconsin's civil refusal statute into a crime.
Circuit courts regularly rely on the behavior of defendants when
imposing sentence (e.g., criminal and civil record, other
uncharged crimes, lack of remorse, and violating
probation/parole), and that behavior is not transformed into a
crime, nor is it considered a criminal penalty, by virtue of its
relevance to sentencing.
¶108 In sum, the majority erroneously requires circuit
courts to put blinders on, to not consider relevant, pertinent,
and objective factors related to the particular crime before the
court, and instead insists that it is error for a court to
impose sentence based upon the facts of the case before it.
III. CONCLUSION
¶109 The majority opinion seriously errs. Driving on a
public highway is not a constitutional right nor is it a right
at all. When someone chooses to drive in the public domain,
they must comply with state statutes commensurate with that
privilege. Our legislature requires, for example, a public
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No. 2016AP2483-CR.akz
highway driver to possess a valid driver's license. See Wis.
Stat. § 343.18(1). The consequence for not having one is a
civil ticket. See § 343.18(3). Our legislature has also
determined, as many states have, that there are consequences for
a public highway driver who drives intoxicated. One consequence
of doing so is to have impliedly consented to a blood test,
provided of course that there is sufficient evidence that they
are driving intoxicated. See Wis. Stat. § 343.305(3). They
still may refuse this implied consent, but, like driving without
a license, that refusal will result in a civil ticket. See
§ 343.305(9). It might be one thing if the consequence for
refusing that test were a criminal charge, as in Birchfield v.
North Dakota, 579 U.S. ____, 136 S. Ct. 2160 (2016), but in
Wisconsin, as in many states, the consequence under our implied
consent law is civil.
¶110 Relying on refusal to consent in determining sentence
for an OWI does not change the civil nature of the refusal
ticket. Judges can and do consider a variety of factors when
imposing sentence——including conduct that is not against the law
at all (e.g., lack of remorse)——and the obstructive and
prohibited behavior of refusal is but one proper consideration.
Thus, the majority errs in concluding that the circuit court
erroneously exercised its discretion when it considered Dalton's
refusal to consent to the blood draw during sentencing.
Considering refusal to consent as a factor during sentencing is
not the same as criminalizing refusal. Therefore, although the
United States Supreme Court proscribed criminalizing refusal in
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Birchfield, it did not proscribe, and in fact seemingly approved
of, a civil penalty for refusal. See Birchfield, 136 S. Ct. at
2185-86. I therefore disagree with the majority in our case
today for at least two reasons: first, the court interprets
Birchfield's holding too broadly; and second, its analysis
erroneously equates "sentencing factor" with a "criminal
statute." In sum, the majority opinion today rewrites
Birchfield and redrafts state statutes, and, in so doing,
unnecessarily creates significant risk to the users of our
public highways.
¶111 Accordingly, I respectfully dissent,2 and I join Chief
Justice Roggensack's call for the United States Supreme Court to
assist the state courts with respect to this issue.
¶112 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this dissent.
2
I do not disagree with the majority's analysis in Part
III.B of the opinion, which concludes that Dalton's trial
counsel was not ineffective for failing to file a motion to
suppress the blood evidence because such a motion would have
been meritless given the exigent circumstances "[giving] rise to
a reasonable belief that a delay in procuring a warrant would
risk the destruction of evidence." Majority op., ¶52; id.,
¶¶53-54. This issue, however, is not why we took this case.
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1
State v. Patrick H. Dalton
Court: Wisconsin Supreme Court
Date filed: 2018-07-03
Citations: 914 N.W.2d 120, 2018 WI 85, 383 Wis. 2d 147
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