State v. Navdeep S. Brar

2017 WI 73

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1261-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Navdeep S. Brar,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 564, 884 N.W.2d 535
(2016 – Unpublished)

OPINION FILED: July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2017

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

JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs (opinion filed).
KELLY, J. concurs, joined Part I by R.G.
BRADLEY, J. (opinion filed).
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY
J. (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood &
Associates, Madison, and an oral argument by Sarah M. Schmeiser.

For the plaintiff-respondent, there was a brief by David H.
Perlman, assistant attorney general, and Brad D. Schimel,
attorney general, and an oral argument by David H. Perlman.
 2017 WI 73
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1261-CR
(L.C. No. 2014CT776)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. JUL 6, 2017
Diane M. Fremgen
Navdeep S. Brar, Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an

unpublished decision of the court of appeals1 affirming the

conviction of Navdeep Brar (Brar) for operating while
intoxicated, third offense in violation of Wis. Stat.

§ 346.63(1)(a) (2014-15)2 and an order of the circuit court

denying Brar's motion to suppress the results of a blood test.3
1
State v. Brar, No. 2015AP1261-CR, unpublished slip op.
(Wis. Ct. App. July 7, 2016).
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
The Honorable John W. Markson of Dane County presided.
 No. 2015AP1261-CR

¶2 Brar moved to suppress the results of a blood test on

the grounds that it was an unconstitutional search.

Specifically, he argued that he did not consent to having his

blood drawn, and therefore, the officer was required to obtain a

warrant. The circuit court denied Brar's motion and found that

Brar had consented. On appeal, Brar argues that, even if he had

consented, his consent was not given voluntarily.

¶3 We conclude that the circuit court's finding that Brar

consented to the blood draw was not clearly erroneous.

Additionally, we conclude that Brar's consent was voluntary.

Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶4 A City of Middleton police officer stopped Brar for

driving over the speed limit. During the stop, the officer

conducted field sobriety tests, which Brar failed. Brar then

submitted to a preliminary breath test and blew a .19. As a

result, Brar was arrested.4

¶5 After arresting Brar, the officer transported him to
the police department, where the officer read Brar the

"informing the accused form." While being read the form, Brar

repeatedly interrupted the officer with questions or comments

related to the form. As part of "informing the accused"

process, the officer asked Brar to submit to a chemical

evidentiary test. The precise words Brar said in response are

4
Brar does not contest the validity of the initial stop or
his subsequent arrest.

2
 No. 2015AP1261-CR

disputed. However, the officer thought Brar provided an

affirmative response, and therefore believed that Brar agreed to

submit to a blood draw.

¶6 After agreeing to submit to an evidentiary test, Brar

asked several questions. One of these questions was what kind

of test would be conducted, and the officer responded he would

conduct a blood draw. Brar then asked the officer if he needed

a warrant to conduct a blood draw. In response to this

question, the officer shook his head as if to respond no,

indicating that he did not need a warrant.

¶7 Brar was taken to a hospital where his blood was

drawn. The test results showed that Brar's blood alcohol

content was .186, well above the legal limit to operate a

vehicle. Brar was charged with operating while intoxicated,

third offense in violation of Wis. Stat. § 346.63(1)(a) and

operating a motor vehicle with a prohibited alcohol

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

¶8 Brar moved to suppress the results of the blood test.
The circuit court held a hearing to determine whether Brar had

consented to the blood draw.

¶9 At the hearing, the officer testified that Brar

responded "of course" in response to the question "Will you

submit to an evidentiary chemical test of your blood?"

According to the officer, Brar then gave "a statement similar to

he didn't want to have his license revocated." As a result, the

officer believed that Brar had consented to the blood draw.

3
 No. 2015AP1261-CR

Moreover, the officer testified that Brar did not resist or

hesitate to give blood once he was transported to the hospital.

¶10 The circuit court found that Brar had consented to a

blood draw. The circuit court relied on the testimony of the

officer, which the court found credible. And, the circuit court

stated that nothing in the audiovisual recording was

inconsistent with the officer's testimony; specifically, that

the circuit court heard Brar say "of course," which corroborated

the officer's testimony. For these reasons, the circuit court

denied Brar's motion to suppress.5 After the circuit court

denied the motion, Brar entered a no contest plea to operating

while intoxicated, third offense in violation of Wis. Stat.

§ 346.63(1)(a).

¶11 The court of appeals affirmed the circuit court's

denial of Brar's motion to suppress. First, the court

determined that the circuit court's finding that Brar consented

to have his blood drawn was not clearly erroneous. Next, the

court concluded that Brar's consent was voluntary. The court
reasoned that the officer was correct in shaking his head no to

indicate he did not need a warrant because Brar had already

consented.

5
Brar moved for reconsideration of the circuit court's
denial of his motion to suppress after having the audiovisual
recording of his interaction with the officer transcribed. Brar
noted that the individual who transcribed the recording did not
hear Brar say the words "of course." The circuit court
concluded that Brar did not meet the criteria for a motion for
reconsideration, and therefore denied the motion.

4
 No. 2015AP1261-CR

¶12 This court granted Brar's petition for review, and we

affirm the court of appeals.

II. DISCUSSION

A. Standard of Review

¶13 "Whether a defendant has consented to a search is

initially a question of historic fact." State v. Johnson, 2007

WI 32, ¶56, 299 Wis. 2d 675, 729 N.W.2d 182 (Roggensack, J.,

dissenting) (citation omitted). "We will uphold a circuit

court's finding of historic fact unless it is clearly

erroneous." Id. (citing State v. Sykes, 2005 WI 48, ¶12, 279

Wis. 2d 742, 695 N.W.2d 277). Next, we "independently apply the

constitutional principles to the facts as found to determine

whether the standard of voluntariness has been met." State v.

Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998).

¶14 In the present case, we apply this two-step test to

determine if Brar voluntarily consented to a blood draw.

B. Fourth Amendment, General Principles

¶15 "The Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin

Constitution protect '[[t]he right of the people to be secure in

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

searches and seizures.'"6 State v. Tullberg, 2014 WI 134, ¶29,

359 Wis. 2d 421, 857 N.W.2d 120 (quoting State v. Robinson, 2010

6
"Historically, we have interpreted Article I, Section 11
of the Wisconsin Constitution in accord with the Supreme Court's
interpretation of the Fourth Amendment." State v. Arias, 2008
WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748.

5
 No. 2015AP1261-CR

WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463). "The Fourth

Amendment does not proscribe all state-initiated searches and

seizures; it merely proscribes those which are unreasonable."

Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citing Illinois v.

Rodriguez, 497 U.S. 177 (1990)).

¶16 "A warrantless search is presumptively unreasonable."

Tullberg, 359 Wis. 2d 421, ¶30 (quoting State v. Henderson, 2001

WI 97, ¶19, 245 Wis. 2d 345, 629 N.W.2d 613). "But there are

certain 'specifically established and well-delineated'

exceptions to the Fourth Amendment's warrant requirement."7

State v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1, 646

N.W.2d 834 (citing Katz v. United States, 389 U.S. 347, 357

(1967)). "One well-established exception to the warrant

requirement of the Fourth Amendment is a search conducted

pursuant to consent." Phillips, 218 Wis. 2d at 196. And, "it

is no doubt reasonable for the police to conduct a search once

they have been permitted to do so." Jimeno, 500 U.S. at 250-51

(citing Schneckloth v. Bustamonte, 412 U.S. 281, 219 (1973).
¶17 It is well-established that consent "may be in the

form of words, gesture, or conduct." Phillips, 218 Wis. 2d 180,

¶24; see also State v. Tomlinson, 2002 WI 91, ¶37, 254

Wis. 2d 502, 648 N.W.2d 367; United States v. Hylton, 349 F.3d

781, 786 (4th Cir. 2003) ("Consent may be inferred from actions

7
"'[T]he taking of a blood sample . . . is a search' under
the Fourth Amendment." State v. Kozel, 2017 WI 3, ¶40, 373
Wis. 2d 1, 889 N.W.2d 423.

6
 No. 2015AP1261-CR

as well as words."). Through conduct, an individual may

impliedly consent to be searched. United States v. Lakoskey,

462 F.3d 965, 973 (8th Cir. 2006), as amended on reh'g (Oct. 31,

2006) ("Voluntary consent may be. . . implied."); United States

v. Wilson, 914 F. Supp. 2d 550, 558 (S.D.N.Y. 2012) ("Consent

may be granted either explicitly or implicitly." (citation

omitted)); see also Morgan v. United States, 323 F.3d 776, 781

(9th Cir. 2003) (reasoning, "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"); State v.

Hanson, 34 P.3d 1, 5 (Haw. 2001), as amended (Nov. 7, 2001)

("[E]ven in the absence of an express indication, implied

consent to an airport security search may be imputed from posted

notices.").

¶18 Consistent with these principles, "consent to a search

need not be express but may be fairly inferred from context."

Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016).

Therefore, "a search may be lawful even if the person giving
consent does not recite the talismanic phrase: 'You have my

permission to search.'" United States v. Buettner-Janusch, 646

F.2d 759, 764 (2d Cir. 1981).

¶19 Prior cases from the court of appeals could be read as

casting doubt on the maxim that a person may consent through

conduct or by implication. For example, the court of appeals in

Padley reasoned that consent that arises under Wisconsin's

implied consent law is different from consent that is sufficient
in and of itself under the Fourth Amendment. State v. Padley,
7
 No. 2015AP1261-CR

2014 WI App 65, ¶25, 354 Wis. 2d 545, 849 N.W.2d 867.

Specifically, the court reasoned that "actual consent to a blood

draw is not 'implied consent,' but rather a possible result of

requiring the driver to choose whether to consent under the

implied consent law." Id. This reasoning implies a distinction

between implied consent and consent that is sufficient under the

Fourth Amendment. Such a distinction is incorrect as a matter

of law.8

¶20 Stated more fully, and contrary to the court of

appeals' reasoning in Padley, consent can manifest itself in a

number of ways, including through conduct. Cf. Florida v.

Jardines, 133 S. Ct. 1409, 1415-16 (2013); Marshall v. Barlow's,

Inc., 436 U.S. 307, 313 (1978). The use of the word "implied"

in the idiom "implied consent" is merely descriptive of the way

in which an individual gives consent. It is no less sufficient

consent than consent given by other means.

¶21 An individual's consent given by virtue of driving on

Wisconsin's roads, often referred to as implied consent, is one
incarnation of consent by conduct. Wis. Stat. § 343.305(2) (An

8
Of course, other constitutional rights may involve
different considerations. For example, the United States
Supreme Court reasoned: "There is a vast difference between
those rights that protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment. Nothing, either in the
purposes behind requiring a 'knowing' and 'intelligent' waiver
of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the
constitutional guarantee against unreasonable searches and
seizures." Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973).

8
 No. 2015AP1261-CR

individual who "drives or 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."). "By reason of the implied consent law, a

driver . . . consents to submit to the prescribed chemical

tests."9 State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828

(1980); see also State v. Reitter, 227 Wis. 2d 213, 225, 595

N.W.2d 646 (1999) ("The implied consent law provides that

Wisconsin drivers are deemed to have given implied consent to

chemical testing as a condition of receiving the operating

privilege."). And, as a plurality of the Supreme Court

explained in Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013),

"all 50 States have adopted implied consent laws that require

motorists, as a condition of operating a motor vehicle within

the State, to consent to BAC testing if they are arrested or

otherwise detained on suspicion of a drunk-driving offense."

The "consent" to which this court in Neitzel and the Supreme

9
Our previous cases discussing implied consent clearly
establish that an individual has already consented at the time
an officer reads a driver the Informing the Accused form. See,
e.g., State v. Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828
(1980) ("The entire tenor of the implied consent law
is . . . that consent has already been given and cannot be
withdrawn without the imposition of the legislatively imposed
sanction of mandatory suspension."). "The specific objective of
Wis. Stat. § 343.305(4) within the implied consent statutory
scheme is to 'advise the accused about the nature of the
driver's implied consent.'" State v. Piddington, 2001 WI 24,
¶17, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting State v. Reitter,
227 Wis. 2d 213, 225, 595 N.W.2d 646 (1999)).

9
 No. 2015AP1261-CR

Court in McNeely refer is consent sufficient under the Fourth

Amendment——not some amorphous, lesser form of consent. See,

e.g., People v. Hyde, 393 P.3d 962, 968 (Colo. 2017) ("Hyde's

statutory consent also satisfied the consent exception to the

Fourth Amendment warrant requirement. This conclusion flows

from recent Supreme Court precedent.").

¶22 Furthermore, the Supreme Court's assertion that an

individual's consent to a search under the Fourth Amendment "may

be fairly inferred from context" was given with specific

reference to an implied consent law. Birchfield, 136 S. Ct. at

2185 (reasoning, "consent to a search need not be express but

may be fairly inferred from context. . . . 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."). Of course,

the "context" to which the Supreme Court was referring was an

individual driving on the roads of a state that had enacted an

implied consent law.
¶23 Therefore, lest there be any doubt, consent by conduct

or implication is constitutionally sufficient consent under the

Fourth Amendment.10 We reject the notion that implied consent is

a lesser form of consent. Implied consent is not a second-tier

form of consent; it is well-established that consent under the

10
We do not address if there always must be an opportunity
to withdraw consent before a blood draw is undertaken such as is
currently provided in Wis. Stat. § 343.305(3).

10
 No. 2015AP1261-CR

Fourth Amendment can be implied through an individual's

conduct.11

¶24 When we are asked to affirm a finding that consent was

given, whether express or implied, we also must determine

whether the consent was voluntary. See generally United States

v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976) ("Once the

existence of a consent by conduct is determined, its

voluntariness must be examined."). Only voluntarily given

consent will pass constitutional muster. Schneckloth, 412 U.S.

at 222. "Consent is not voluntary if the state proves 'no more

than acquiescence to a claim of lawful authority,'" State v.

Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430 (quoting

Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)), or if

the consent was the product of duress or coercion by law

enforcement. Schneckloth, 412 U.S. at 227.

¶25 There is no single fact, the absence or presence of

which, determines whether consent was voluntarily given. Id. at

226. Rather, in order to determine whether consent was
voluntarily given, the totality of the circumstances of each

individual case must be examined. Id. at 233. In examining the

totality of the circumstances, "we look at the circumstances

11
In the present case, Brar was conscious when he was read
the Informing the Accused form. And, under Wisconsin's implied
consent law, conscious drivers are statutorily given an
opportunity to withdraw consent. However, individuals that
choose to withdraw their consent are subject to penalties for
withdrawing consent. Wis. Stat. § 343.305(9) & (10).

11
 No. 2015AP1261-CR

surrounding the consent and the characteristics of the

defendant."12 Artic, 327 Wis. 2d 392, ¶33 (citing Phillips, 218

Wis. 2d at 197-98). Even in implied consent cases, we consider

the totality of the circumstances at the time of the blood draw

to determine if an individual's previously-given consent

continues to be voluntary at that time.

¶26 The State has the burden of proving that the consent

was freely and voluntarily given. Schneckloth, 412 U.S. at 222.

However, the State need not demonstrate that consent was given

knowingly or intelligently. See id. at 241 ("Nothing, either in

the purposes behind requiring a 'knowing' and 'intelligent'

waiver of trial rights, or in the practical application of such

a requirement suggests that it ought to be extended to the

constitutional guarantee against unreasonable searches and

12
As we explained in State v. Artic, 2010 WI 83, 327
Wis. 2d 392, 786 N.W.2d 430, we consider numerous factors to
determine whether an individual voluntarily consented:

(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
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.

Id., ¶33.

12
 No. 2015AP1261-CR

seizures."); see also id. at 235 ("Our cases do not reflect an

uncritical demand for a knowing and intelligent waiver in every

situation where a person has failed to invoke a constitutional

protection.").

¶27 Contrary to Supreme Court precedent, decisions from

the court of appeals have required the State to prove consent

was given knowingly and intelligently. See, e.g., Padley, 354

Wis. 2d 545, ¶64 (reasoning there must be "clear and positive

evidence the search was the result of a free, intelligent,

unequivocal and specific consent" (internal quotations

omitted)); State v. Giebel, 2006 WI App 239, ¶12, 297 Wis. 2d

446, 724 N.W.2d 402; see also Neitzel, 95 Wis. 2d at 201. The

Supreme Court in Schneckloth rejected precisely this

requirement. As we interpret our constitution consistent with

the Fourth Amendment, we withdraw any language from these cases

that requires that consent to a search be given knowingly or

intelligently.

C. Application to Brar
¶28 In the present case, we must determine whether Brar

consented, and if he did, whether his consent was voluntary.

¶29 First, Brar consented under Wisconsin's implied

consent law. He availed himself of the roads of Wisconsin, and

as a result, he consented through his conduct to a blood draw.

Wisconsin Stat. § 343.305(2) (an individual who "drives or

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."). Any analysis of a
13
 No. 2015AP1261-CR

driver's consent under Wisconsin's implied consent law must

begin with this presumption.

¶30 Aside from Brar's consent under the implied consent

law, the circuit court found that Brar consented by his

responses to the officer's questions.13 The circuit court

discussed an audiovisual recording of the officer's interaction

with Brar as well as the officer's testimony. The evidence

supports the circuit court's finding, and we conclude it was not

clearly erroneous.

¶31 The officer testified that Brar responded "of course"

in response to the question "Will you submit to an evidentiary

chemical test of your blood?" According to the officer, Brar

then gave "a statement similar to he didn’t want to have his

license revocated." As a result, the officer believed Brar

affirmatively agreed to the blood draw.

¶32 The circuit court found the officer's "testimony to be

credible, that Mr. Brar said, when asked more than once, the

officer said I need to know, I need you to answer yes or no,
will you submit to the test? Mr. Brar said, of course, he would

submit. And the officer said that Mr. Brar said, because he

didn't want to have his license revoked, or words to that

effect." A circuit court's finding of fact that is based on the

credibility of a witness is a persuasive factor in assessing

whether the finding is clearly erroneous. See Wis. Stat.

13
The circuit court stated: "I do find as a matter of fact
that Mr. Brar did give consent."

14
 No. 2015AP1261-CR

§ 805.17(2) ("Findings of fact shall not be set aside unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of the

witnesses."). And, we have no reason to question the veracity

of the officer's testimony in the present case.

¶33 Moreover, the circuit court found, and we agree, that

the audiovisual recording of the interaction corroborates the

testimony of the officer. Nothing in the recording rebuts the

officer's testimony as to Brar's statements. Indeed, the

officer's testimony that Brar said "of course" and then

something to the effect of "I do not want my license revoked" is

supported by the recording.

¶34 Accordingly, Brar first consented through his conduct;

specifically, he consented by driving on the roads of Wisconsin.

The circuit court found he later re-affirmed his consent when he

was given the statutory opportunity to withdraw consent at the

officer's reading of the Informing the Accused form to him.

Based on the officer's testimony as corroborated by the
recording of the officer's interaction with Brar, the circuit

court's finding that Brar consented was not clearly erroneous.

¶35 Having concluded that Brar consented, we must

determine whether his consent was voluntary. We conclude that

Brar voluntarily, albeit impliedly, consented when he chose to

drive on Wisconsin roads. And, his subsequent statement to the

officer, re-affirming his previously-given consent was likewise

voluntary. Brar does not argue otherwise; in essence, he

15
 No. 2015AP1261-CR

contends that the voluntariness of his consent dissipated

sometime after he had already consented.

¶36 After consenting to the blood draw, Brar asked the

officer if he needed to obtain a warrant to draw his blood. The

officer shook his head no in response. However, the officer's

response did not vitiate the voluntariness of Brar's consent.

¶37 After all, the officer did not need a warrant because

Brar already had consented. And, the officer was not obligated

to explain further than he did; for example, an individual need

not be informed of the opportunity to withdraw consent under

Wis. Stat. § 343.305(3) in order for consent to be voluntary.

See Schneckloth, 412 U.S. at 229 (reasoning, that requiring the

State to "affirmatively prove that the subject of the search

knew that he had a right to refuse consent, would, in practice,

create serious doubt whether consent searches could continue to

be conducted"). Even if the import of Brar's question was

unclear to the officer, "an officer need not clarify whether an

ambiguous statement is meant to withdraw otherwise valid consent
to search." See State v. Wantland, 2014 WI 58, ¶47, 355 Wis. 2d

135, 848 N.W.2d 810. Accordingly, the officer accurately

responded to Brar's question and had no obligation to supply

Brar with further information.

¶38 However, even if the officer's response to Brar's

questions were unclear, it was insufficient to vitiate Brar's

previously-given and subsequently re-affirmed voluntary consent.

The voluntariness of consent is examined under the totality of
the circumstances. And, the context in which Brar asked whether
16
 No. 2015AP1261-CR

the officer needed a warrant suggests that Brar voluntarily

consented despite the arguably unclear nature of the officer's

response. Brar's question about a warrant was not an isolated

question; Brar asked the officer numerous questions throughout

the encounter, many of which pertained to aspects of the

Informing the Accused form. He also repeatedly lamented his

guilt. In the context of his interaction with the officer,

Brar's one question about the necessity of a warrant was

insufficient to render his consent involuntary.

¶39 Moreover, Brar was informed of his opportunity to

withdraw consent to a blood draw when the officer read him the

Informing the Accused form. The officer asked him to provide a

yes or no answer to the question of whether he would consent to

a chemical evidentiary test. Earlier, the officer had explained

the consequences of refusing a blood draw to Brar. As a result,

Brar knew that he had the option of refusing a blood draw, yet

he did not refuse. See United States v. Mendenhall, 446 U.S.

544, 559 (1980) (reasoning, "[because] the officers themselves
informed the respondent that she was free to withhold her

consent substantially lessened the probability that their

conduct could reasonably have appeared to her to be coercive").

And, at no point did Brar as much as suggest an unwillingness to

have his blood drawn.

¶40 Finally, Brar did not merely acquiesce to being

searched. The cases in which courts have concluded consent was

involuntary based on an individual's "mere acquiescence" are of
no relevance to this case. "[A]cquiescence causes Fourth
17
 No. 2015AP1261-CR

Amendment problems when the acquiescence is made to claimed

lawful authority to search, when no such lawful authority

exists." Johnson, 299 Wis. 2d 675, ¶69 (Roggensack, J.,

dissenting) (citing Bumper, 391 U.S. at 548-49). Brar asked the

officer a straightforward question: whether the officer needed

a warrant to conduct a blood draw. The officer, at that point,

answered the question accurately; he did not need a warrant

because Brar had consented. In contrast to the cases in which

courts have concluded an individual merely acquiesced to a

search, the officer here did not assert that he would conduct a

blood draw with or without Brar's consent. See Bumper, 391 U.S.

at 548 ("The issue thus presented is whether a search can be

justified as lawful on the basis of consent when that 'consent'

has been given only after the official conducting the search has

asserted that he possesses a warrant.").

¶41 In sum, Brar's "will was [not] overborne" by the

officer. See Schneckloth, 412 U.S. at 226. After examining the

totality of the circumstances, we conclude that Brar voluntarily
consented to a blood draw.

III. CONCLUSION

¶42 In light of the foregoing, we conclude that the

circuit court's finding that Brar consented to the blood draw

was not clearly erroneous. Additionally, we conclude that

Brar's consent was voluntary. Accordingly, we affirm the

decision of the court of appeals.

By the Court.—The decision of the court of appeals is
affirmed.
18
 No. 2015AP1261-CR.rgb

¶43 REBECCA GRASSL BRADLEY, J. (concurring). I concur

with the court's mandate to affirm the decision of the court of

appeals, and I join Part I of Justice Daniel Kelly's

concurrence.

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 No. 2015AP1261-CR.dk

¶44 DANIEL KELLY, J. (concurring). I join the court's

mandate and the opinion to the extent it discusses Mr. Brar's

express consent to the blood test while he was present in the

police station. I cannot join any part of the court's

discussion of implied consent because it misunderstands how our

implied consent law functions, it says "consent" implied by law

is something voluntarily given when such a thing is impossible,

it introduces a destructive new doctrine that reduces

constitutional guarantees to a matter of legislative grace, and

it fails to properly distinguish between (a) express consent,

(b) consent implied by conduct, and (c) "consent" implied by

law. And all of this was entirely gratuitous——as the court's

own opinion demonstrates, implied consent need have no part in

our resolution of the case. Because this last point describes

where the court's opinion should have ended, I will begin there.

I

¶45 There was no need to march into the minefield of

"consent" implied by law.1 Mr. Brar asked us to review his
conviction for two reasons. First, he says he did not give

express consent to chemical testing of his blood. And second,

he says he only acquiesced to the blood test because Officer

Michael Wood said he did not need a warrant to obtain a blood

1
When speaking of the implied consent provided by Wis.
Stat. § 343.305(2), I will refer to "'consent' implied by law."
I do this to distinguish it from consent implied by conduct.
And I put "consent" in quotes because, as I discuss infra,
"consent" implied by law is not actually consent at all, and is
incapable of authorizing a law enforcement officer to perform a
blood test.

1
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sample. The presenting questions, therefore, called for us to

review what Mr. Brar said and——if it amounted to express

consent——determine whether his consent was voluntary. State v.

Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430 ("To

determine if the consent exception is satisfied, we review,

first, whether consent was given in fact by words, gestures, or

conduct; and, second whether the consent given was voluntary.").

¶46 We are not considering Mr. Brar's interaction with

Officer Wood in the first instance, of course. We are reviewing

the circuit court's findings of fact, which we leave undisturbed

unless they are clearly erroneous. Phelps v. Physicians Ins.

Co. of Wis., Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768

N.W.2d 615. According to the circuit court, Officer Wood asked

Mr. Brar whether he would submit to an evidentiary chemical test

of his blood. The record reflects that Mr. Brar said "of

course," and that he didn't want to lose his driving privileges.

Our review revealed nothing clearly erroneous about the circuit

court's findings, and so we accepted that Mr. Brar expressly
consented to a blood test.

¶47 We promptly, and properly, dispatched Mr. Brar's

argument that his consent was not voluntary. According to Mr.

Brar, when Officer Wood told him he did not need a warrant to

conduct the blood test, he made a misrepresentation of law

sufficient to negate the voluntariness of his consent. But

Officer Wood's statement came after Mr. Brar's consent, which

made his statement correct——he didn't need a warrant because Mr.
Brar had consented to the search. See Artic, 327 Wis. 2d 392,

2
 No. 2015AP1261-CR.dk

¶29 (One well-established exception to the warrant requirement

is a search conducted pursuant to consent.). Thus, there was no

misrepresentation to cast doubt on the voluntariness of Mr.

Brar's consent. Mr. Brar did not argue his consent was

involuntary for any other reason, so we properly concluded his

consent was constitutionally valid.

¶48 That should have been the end of our opinion.

Traditionally, when the presenting questions resolve the matter,

we declare our treatment of the case complete at that point.

See Black v. City of Milwaukee, 2016 WI 47, ¶39 n.24, 369

Wis. 2d 272, 882 N.W.2d 333, cert. denied sub nom. Milwaukee

Police Ass'n v. City of Milwaukee, 137 S. Ct. 538 (2016) ("We do

not address these issues because they are not necessary to

resolve this case"); see also State v. Cain, 2012 WI 68, ¶37

n.11, 342 Wis. 2d 1, 816 N.W.2d 177 ("[A]n appellate court

should decide cases on the narrowest possible grounds." (quoting

Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326

Wis.2d 300, 786 N.W.2d 15)); Hull v. State Farm Mut. Auto. Ins.
Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a

general rule, when our resolution of one issue disposes of a

case, we will not address additional issues."). Experience has

taught us it is usually wise to leave peripheral questions to a

future case in which they return as dispositive issues. There

are good reasons to honor that experience. The process of

reasoning from premises to conclusion imposes a rigorous

discipline on our research, deliberation, and analysis that is
absent when we opine on matters beyond those necessary to our

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judgment. The court's opinion validates the wisdom of our

tradition.

II

¶49 Not only did we boldly march into the "implied

consent" minefield, we did it blindfolded. Our implied consent

statute, Wis. Stat. § 343.305 (2013-14),2 is not a model of

clarity. That should have driven us to a searching, wide-eyed

perusal of the statute's language to help us through this

fraught territory. Instead, with the benefit of just three

cursory sentences addressing the statute's terms, we announced

that it provides a real-life, constitutionally-sufficient,

consent to a blood test: "Brar consented under Wisconsin's

implied consent law. He availed himself of the roads of

Wisconsin, and as a result, he consented through his conduct to

a blood draw." Majority op., ¶29. That, however, is not what

the statute does.

¶50 The question the court answered, but did not analyze,

is whether "implied consent" actually authorizes a law
enforcement officer to obtain a sample of a driver's blood. To

discover whether it does, we must consider three of the

statute's functional components. The first addresses itself to

its eponymous subject——"consent" implied by law (I will call

this the "Implied Consent Component"). Wis. Stat. § 343.305(2).

The second component governs a law enforcement officer's request

for a blood test (the "Test Authorization Component"). Wis.

2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

4
 No. 2015AP1261-CR.dk

Stat. § 343.305(3)-(4).3 The third covers the consequences for

refusing an officer's request for a test (the "Penalty

Component"). Wis. Stat. § 343.305(9)-(10). With but one

exception that is not relevant here, there is no operational

connection between the Implied Consent Component and the Test

Authorization Component.4

¶51 By its own terms, the Implied Consent Component

isolates itself from the authorization the State must obtain to

collect a sample of the driver's blood. In relevant part, it

says this:

Implied Consent. Any person who . . . drives or
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 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.
Wis. Stat. § 343.305(2) (emphases added). This provision

creates the "implied consent," but it simultaneously forecasts

its operational independence from the Test Authorization

3
The statute also provides for tests of a driver's breath
or urine. But because a blood test is at issue in this case, I
will refer only to that type of test.
4
There is a connection between the Implied Consent
Component and Test Authorization Component when the driver is
unconscious. Wis. Stat. § 343.304(3)(b). That exception
presents issues distinct from those presented by conscious
drivers. Because Mr. Brar was conscious, I do not address the
exception here.

5
 No. 2015AP1261-CR.dk

Component: Operating a motor vehicle gives rise to "deemed"

consent, but the actual blood test must be requested by the law

enforcement officer.5

¶52 What the Implied Consent Component forecasts, the Test

Authorization Component makes explicit——the officer must ask the

driver for permission to conduct a blood test: "Upon arrest of

a person for [operating while intoxicated] . . . 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)." Wis. Stat. § 343.305(3)(a)

(emphasis added). When an officer asks a driver for permission

to conduct a test, he must recite a very specific warning. The

provision introducing the warning echoes the fact that he is

asking permission——not telling: "At the time that a chemical

test specimen is requested under sub. (3) (a), (am), or (ar),

the law enforcement officer shall read the following to the

person from whom the test specimen is requested . . . ." Wis.

Stat. § 343.305(4) (emphases added). The statutorily-mandated
warning confirms the officer is asking permission, and the

driver may say "no" to the officer's request:

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

5
This subsection also provides for a "required" test when the operator is unconscious.
But that is part of the exception I mentioned above. See supra n.4.

6
 No. 2015AP1261-CR.dk

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.
Wis. Stat. § 343.305(4) (emphases added).

¶53 I'm not going to pretend the meaning of "request" is

an open question. We are all fluent English-speakers here, and

we know it means what it so obviously does——it is a question, a

seeking of an answer. And when the request is for a blood

sample, we know the officer is asking permission to take it. I

suppose someone might say the statute's repeated admonition that

the officer must seek permission to take a sample is a tip of

the hat to good manners. I trust the government's agents make

every effort to be polite in their interactions with Wisconsin's
residents, so this would be a frivolous mandate to write into a

statute. Absent any textual hints that the repeated "request"
7
 No. 2015AP1261-CR.dk

requirement is more about etiquette than a mandate to ask

permission, we shouldn't read it that way. See State ex rel.

Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110 ([S]tatutory interpretation 'begins

with the language of the statute. If the meaning of the statute

is plain, we ordinarily stop the inquiry.'" (quoting Seider v.

O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659)).

¶54 So what does that mean for "implied consent"? It is

axiomatic that if one must ask for something, then one doesn't

yet have it. If the statute's "implied consent" really is equal

to a driver's voluntarily and freely given consent (as the court

claims), then all of this "request" business is so much

doubletalk. If the court is right, then there is no need to ask

because the law says we may act as though the driver already

said "yes." So Wis. Stat. § 343.305(3)(a) would read: "Upon

arrest of a person for [operating while intoxicated] . . . a law

enforcement officer may request tell the person to provide one

or more samples of his or her breath, blood or urine for the
purpose specified under sub. (2)." And § 343.305(4) would have

to read: "At the time that a driver is told to provide a

chemical test specimen is requested under sub. (3) (a), (am), or

(ar), the law enforcement officer shall read the following to

the person told to provide a from whom the test specimen is

requested . . . ." The warning required by § 343.305(4) would

need to be similarly amended to remove the "request" language,

as well as the confirmation that the subject can tell the
officer "no." But the officer does have to ask permission, and

8
 No. 2015AP1261-CR.dk

the driver may indeed refuse his request. And that means

"implied consent" and the consent actually necessary to obtain

the blood sample are quite obviously not the same thing, and do

not serve the same function.

¶55 "Implied consent" does, however, have a purpose. And

that purpose is to juke the Fourth Amendment. We know that

taking a blood sample in the absence of a warrant or exigent

circumstances is an unconstitutional search. Birchfield v.

North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173 (2016) ("The

Amendment thus prohibits "unreasonable searches," and our cases

establish that the taking of a blood sample or the

administration of a breath test is a search."). So, contrary to

what our opinion says today, the legislature cannot simply

authorize police officers to take blood samples without asking

permission.6 Thus, "implied consent" cannot be the same thing as

consent given pursuant to a police officer's request. And

indeed it is not.

¶56 "Implied consent" has an entirely different function.
It is part of a mechanism designed to obtain indirectly what it

6
Birchfield arose in the context of an implied consent
statute (actually, several implied consent statutes, inasmuch as
this opinion addressed defendants from multiple states). See
Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173
(2016). So if the legislatively-provided consent was sufficient
to authorize a blood test, the Court would not have spent any
time determining whether such tests are appropriate under the
"search incident to arrest" exception to the Fourth Amendment.
It would have simply noted the existence of an implied consent
statute and called it a day. But it didn't, so apparently the
United States Supreme Court is not willing to trim the Fourth
Amendment's protections as aggressively as we are.

9
 No. 2015AP1261-CR.dk

cannot (and does not) create directly——consent to a blood test.

The Implied Consent Component works in tandem with the Penalty

Component to cajole drivers into giving the real consent

required by the Test Authorization Component. The Penalty

Component punishes a driver by revoking his operating privileges

if he refuses an officer's request for a blood sample. Wis.

Stat. § 343.305(9)-(10). But that smacks of punishing someone

for the exercise of his constitutional right to be free of

unreasonable searches, upon which we generally frown. Harman v.

Forssenius, 380 U.S. 528, 540 (1965) ("It has long been

established that a State may not impose a penalty upon those who

exercise a right guaranteed by the Constitution.").

¶57 It is this consideration that, finally, explains why

the Implied Consent Component exists and where it slips into

place. The idea appears to be that if the driver's Fourth

Amendment rights have been legislatively waived, there can be no

punishment consequent upon the exercise of a constitutional

right because it has already been relinquished, courtesy of Wis.
Stat. § 343.305(2). Thus, when a driver refuses to provide a

blood sample, he is not being punished for exercising a

constitutional right, but for refusing a statutorily-authorized

request for needed evidence. This Rube Goldberg-like

convolution may or may not be sufficient to make it past the

Fourth Amendment, but the purpose of my concurrence is not to

analyze this contraption's fidelity to the Constitution. My

purpose here is only to describe how the statute functions, and

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explain why "implied consent" has nothing to do with the consent

necessary to obtain a blood sample.

¶58 In sum, the court's opinion misstates how Wis. Stat.

§ 343.305 operates. "Implied consent" does not authorize an

officer to take a blood sample. It only provides (questionable)

cover for punishing a driver who refuses to authorize a blood

test. To actually perform the test, the officer has to ask the

driver's permission. And if the driver says "no," the "implied

consent" provision does not step in to countermand his answer.

So the court erred by imputing to this statutorily-deemed

"consent" the power to authorize a blood test. It then built on

that error by claiming this non-operational "consent" is

constitutionally valid because it is given freely and

voluntarily.

III

¶59 It is a metaphysical impossibility for a driver to

freely and voluntarily give "consent" implied by law. This is

necessarily so because "consent" implied by law isn't given by
the driver. If it is given by anyone, it is given by the

legislature through the legal fiction of "deeming": "Any person

who . . . drives or operates a motor vehicle upon the public

highways of this state . . . is deemed to have given

consent . . . ." Wis. Stat. § 343.305(2). One only "deems"

when the thing deemed did not really happen, but you intend to

act as though it did. So it makes no sense to ask if the driver

freely and voluntarily gave something he manifestly did not give
in the first place.

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 No. 2015AP1261-CR.dk

¶60 And yet, the court asks anyway: "When we are asked to

affirm a finding that consent was given, whether express or

implied, we also must determine whether the consent was

voluntary." Majority op., ¶24 (emphasis added). It is true

that a person's consent to a search is constitutionally valid

only if he gives it freely and voluntarily.7 However, even as

the court asserts that express consent and "consent" implied by

law are constitutionally fungible, its analysis proves its

thesis is indefensible. A brief exploration of how we assay the

voluntariness of a person's consent illustrates the

meaninglessness of this standard in the context of "consent"

implied by law.

¶61 We analyze a wealth of factors in determining whether

an expression of consent meets the voluntariness standard.

Majority op., ¶¶24-26. We ask, for example, whether the police

used deception, or trickery, or misrepresentations to produce

the consent. Artic, 327 Wis. 2d 392, ¶33. We explore whether

the authorities threatened the defendant. Id. Or intimidated
him. Id. Or used food or sleep as leverage to prize out his

consent. Id. We ask whether the officer and the circumstances

were "congenial, non-threatening, and cooperative." Id. We

want to know how the defendant responded to the search request.

Id. We factor into our analysis the person's age. Id. And

intelligence. Id. And education. Id. And his physical and

7
See State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786
N.W.2d 430 ("The State bears the burden of proving that consent
was given freely and voluntarily.").

12
 No. 2015AP1261-CR.dk

emotional condition. Id. And whether he had prior experience

with law enforcement. Id. And whether the police told him he

need not consent. Id. This is, in full, an exhaustive inquiry

into virtually every conceivable circumstance that could

possibly have some bearing on whether the defendant's consent

was the product of the State's influence, as opposed to the

defendant's own will.

¶62 And still we are not done. A defendant may have said

"yes," and he may have actually submitted to the search, but we

still worry that his words and his conduct might not really

reflect a free and voluntary expression of his will. So we say

that just because a person acquiesces to a search doesn't mean

that he was really consenting. "Consent is not voluntary if the

state proves 'no more than acquiescence to a claim of lawful

authority.'" Id., ¶32 (quoting Bumper v. North Carolina, 391

U.S. 543, 548-49 (1968)).

¶63 Now we are almost done determining whether a person's

express consent is enough to waive his Fourth Amendment rights.
To ward against inadvertent waivers, we burden the State with

the obligation to prove the consent was voluntarily and freely

given. Id. All told, then, we test the sufficiency of express

consent with a searching inquiry into everything that could have

made the consent anything less than a product of the driver's

uninhibited will, we disregard a person's actual submission to

the search if it was nothing more than acquiescence to a claim

of lawful authority, and we make it the State's responsibility
to prove the driver gave his consent freely and voluntarily. So

13
 No. 2015AP1261-CR.dk

much for express consent; now it's time to look at the factors

we use to determine whether an instance of "consent" implied by

law meets this standard.

¶64 For "consent" implied by law, we ask whether the

driver drove his car.

¶65 And that's it. If the court is right about "consent"

implied by law, then we have no interest in what the driver

said, thought, experienced, felt, or saw. Nor do we need

consider whether the driver acquiesced to a police officer's

claim of lawful authority. We aren't interested in any personal

detail about the driver, such as his age, intelligence,

circumstances, or emotional state. The only thing we want to

know is whether he was in the driver's seat. And that's exactly

what the court said: "We conclude that Brar voluntarily, albeit

impliedly, consented when he chose to drive on Wisconsin roads."

¶66 That single sentence comprises the entirety of the

court's voluntariness analysis as it relates to "consent"

implied by law. In truth, that's about as much as it could
possibly have said because we really aren't interested in the

driver at all when it comes to this type of consent. The driver

is irrelevant to the question because he isn't the one who

provided the consent——it was the legislature. If the driver

drove, the consent inquiry ends before it begins because the

legislature provided it 48 years ago when it adopted Wis. Stat.

§ 343.305. There is a vast chasm separating express consent

from "consent" implied by law, as this brief diversion into the
voluntariness standard illustrates. In reality, they have

14
 No. 2015AP1261-CR.dk

literally nothing in common. Which is understandable because,

as discussed above, they perform entirely different functions.

IV

¶67 The most likely reason the court fell into error is

that it tangled up the concepts of express consent (that is,

spoken or written consent), consent implied by conduct, and

"consent" implied by law. If we could untie this knot and

consider the nature and function of each concept independently

of the others, I believe the errors would correct themselves.

¶68 The first step to untying a knot is carefully

observing how it came to be. I begin, therefore, by identifying

each time the court confounded the different types of consent.

The knot began with the threads of express consent and "consent"

implied by law, which the court started weaving together in its

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

849 N.W.2d 867. See Majority op., ¶¶19-20. Rejecting the court

of appeals' proper attempt to keep the threads separate, the

court twisted them together into one: "This reasoning implies a
distinction between implied consent and consent that is

sufficient under the Fourth Amendment. Such a distinction is

incorrect as a matter of law." Majority op., ¶19 ("Statement

1"). Still responding to Padley, the court then introduced the

thread of consent implied by conduct into the growing knot:

"Stated more fully, and contrary to the court of appeals'

reasoning in Padley, consent can manifest itself in a number of

ways, including through conduct." Majority op., ¶20 ("Statement
2"). Express consent, of course, is something personal to the

15
 No. 2015AP1261-CR.dk

driver (as opposed to something "deemed" by the legislature), so

the court's next step was to infuse the personal "granting"

element of express consent into each of the other threads: "The

use of the word 'implied' in the idiom 'implied consent' is

merely descriptive of the way in which an individual gives

consent. It is no less sufficient consent than consent given by

other means." Id. ("Statement 3"). It then subsumed "consent"

implied by law into consent implied by conduct by making the

former just a particular manifestation of the latter: "An

individual's consent given by virtue of driving on Wisconsin's

roads, often referred to as implied consent, is one incarnation

of consent by conduct." Id., ¶21 ("Statement 4"). Finally, it

pointed to the knot and declared it was all one, and the one was

sufficient to waive Fourth Amendment protections:

Therefore, lest there be any doubt, consent by conduct
or implication is constitutionally sufficient consent
under the Fourth Amendment. We reject the notion that
implied consent is a lesser form of consent. Implied
consent is not a second-tier form of consent; it is
well-established that consent under the Fourth
Amendment can be implied through an individual's
conduct.
Id., ¶23 ("Statement 5"). But it is not all one.

¶69 The second step to the untying project is

disentangling express consent from "consent" implied by law. I

have already done most of the foundational work (supra), and it

appears this is the loosest strand in the weave. I will pull

first on Statement 3: "The use of the word 'implied' in the

idiom 'implied consent' is merely descriptive of the way in
which an individual gives consent. It is no less sufficient

16
 No. 2015AP1261-CR.dk

consent than consent given by other means." The premise of this

statement is that, whether we are considering express consent or

"consent" implied by law, it is the driver giving consent.

That, however, is not true——between the two, only the first

comes from the driver. Which is why we pay such fastidious

attention to him and the circumstances of his interaction with

the police officer when we assay the voluntariness of his

consent. But with "consent" implied by law, we give scant

thought to the driver (as the court itself demonstrated) because

he isn't the one who gives the consent; it is the legislature.

So it is categorically untrue that "the word 'implied' in the

idiom 'implied consent' is merely descriptive of the way in

which an individual gives consent." The word "implied" is

important because it tells us it is the legislature, not the

individual, who is giving consent.

¶70 With that correction, express consent is almost free

from the court's knot. It is held there only by the court's

rebuke in Statement 1: Padley's "reasoning implies a
distinction between implied consent and consent that is

sufficient under the Fourth Amendment. Such a distinction is

incorrect as a matter of law." The implied consent statute

actually makes Padley's distinction explicit. As described

above, the Implied Consent Component will never result in

authorization to perform a blood test on a conscious individual

because there is no operational connection between it and the

Test Authorization Component. A police officer must ask a
driver's permission to conduct a blood test; the statute's

17
 No. 2015AP1261-CR.dk

"implied consent" cannot supply that authorization, nor was it

designed to do so. Thus, the court's statement that the

"distinction is incorrect as a matter of law" is itself

incorrect as a matter of law. And with that, express consent is

free of the knot.

¶71 The third step in untying the knot is separating

consent implied by conduct from "consent" implied by law. The

court's discussion bounced between the two as if they were the

same thing. They are not. Consent implied by conduct is a

recognition of how people interact with each other in real life.

Sometimes an action, or a gesture, or a circumstance, is

sufficiently expressive of a person's will that we can derive

from that conduct definite and certain information. And when

that information conveys consent to a search, we accept it for

its intended meaning, so long as it meets the voluntariness

standard. These principles are apparent from the very cases the

court cited while muddling the two concepts. I will address

enough of them to demonstrate there is a real and critical
difference between the concepts.

¶72 The court referred to State v. Tomlinson, in which we

considered whether officers had received consent to enter a

person's home. 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367.

Two police officers approached the back door and knocked. A

teenage girl answered, and the police informed her they were

searching for the defendant and requested permission to enter.

She then "turned to enter the house upon the officer's request
to enter." Id., ¶37. We noted that the defendant "was present

18
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and apparently said nothing when this occurred." Id. We

concluded that this conduct "could reasonably have been

interpreted as an invitation to follow her inside." Id. That

is, we carefully examined the conduct of the girl and the

defendant to deduce what information it was conveying to the

officers standing at the door. Because the conduct sufficiently

conveyed a message of consent to the officers' entry, we gave it

that effect and confirmed the search's constitutionality.

¶73 The court also cited United States v. Lakoskey, 462

F.3d 965 (8th Cir. 2006), as amended on reh'g (Oct. 31, 2006),

which provides a counterfactual illustration of consent implied

by conduct. There, a postal inspector was suspicious of a

package, and so delivered it personally to the addressee. Id.

at 968. The inspector met Mr. Lakoskey just outside the front

door, and handed him the package. Id. When the inspector asked

to see what was in the package, Mr. Lakoskey refused and walked

inside the house. Id. After repeated requests, Mr. Lakoskey

finally said he would open the package, but then turned so the
inspector could not see it. Id. at 969. At that point, the

inspector entered the house, Mr. Lakoskey opened the envelope,

and incriminating evidence was disclosed. Id. The question

before the court was whether Mr. Lakoskey's actions could

reasonably convey the message "you may enter my home" to the

inspector. The district court said yes. Id. at 971. The Eight

Circuit disagreed. While recognizing that consent to a search

can be implied from conduct, the court observed that "there is
no indication in the record that he [Thomas Lakoskey] invited

19
 No. 2015AP1261-CR.dk

[Inspector] Hirose's entry, came outside to tell Hirose to

follow him, left his door open, or motioned for Hirose to come

in, implying that Hirose should follow him." Id. at 974. So

the court concluded that "the finding of the district court that

Thomas [Lakoskey]'s actions constituted implied consent for

Hirose to enter his home was clearly erroneous." Id.

¶74 The court also relied on Morgan v. United States, 323

F.3d 776, 778 (9th Cir. 2003), which held that "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." The Morgan court relied heavily on a Fourth Circuit

case, which described how a person's conduct in such

circumstances can convey the message "I consent to being

searched":

[T]he validity of [the defendant's] search [did not]
turn on whether he gave his express consent to search
as a condition of entering the base. Consent is
implied by the totality of all the circumstances. The
barbed-wire fence, the security guards at the gate,
the sign warning of the possibility of search, and a
civilian's common-sense awareness of the nature of a
military base—all these circumstances combine to
puncture any reasonable expectations of privacy for a
civilian who enters a closed military base.
Id., 781-82. (quoting United States v. Jenkins, 986 F.2d 76, 79

(4th Cir. 1993)).

¶75 Handing over one's luggage to be put through an x-ray

scanner at an airport is also conduct conveying consent to a

search, according to State v. Hanson, 34 P.3d 1, 5 (Haw. 2001),

as amended (Nov. 7, 2001) ("Plainly, the surrender of one's
effects at airport security checkpoints is to allow inspection

20
 No. 2015AP1261-CR.dk

of such effects for contents that may pose a danger to those on

the aircraft."). And when an officer asks to search a bedroom,

the meaning of the defendant's resulting conduct cannot be

mistaken when he "opened the door to and walked into his

bedroom, retrieved a small baggie of marijuana, handed the

baggie to the agents, and pointed out a number of drug

paraphernalia items." State v. Phillips, 218 Wis. 2d 180, 197,

577 N.W.2d 794 (1998). We concluded the obvious: "The

defendant's conduct provides a sufficient basis on which to find

that the defendant consented to the search of his bedroom." Id.

The court relied on both of these cases, too, and yet still did

not perceive the difference between consent implied by conduct

and "consent" implied by law.

¶76 There is a commonality to each of these cases, and

indeed to all cases that find consent in a person's conduct:

the information-conveying dynamic inherent to a game of

Charades. When a defendant is supposed to have manifested his

consent to a search by his conduct, we carefully watch as the
State recreates the interaction between the officer and

defendant. If the defendant's conduct in response to the

request conveys the message "I agree to be searched," we give it

that effect. There is no "deeming" involved. Just as in a game

of Charades, we are trying to understand the actual, real-life

information the person is conveying through his conduct at that

moment.

¶77 And that unties the rest of the court's knot. In
Statement 4 the court said "consent" implied by law is just a

21
 No. 2015AP1261-CR.dk

type of consent implied by conduct: "An individual's consent

given by virtue of driving on Wisconsin's roads, often referred

to as implied consent, is one incarnation of consent by

conduct." If that is true, then there should be enough

information bundled up in the act of "driving on Wisconsin's

roads" for us to deduce an expression of the driver's will from

that conduct.

¶78 Except there is not. There are a million things we

might imagine driving a car might mean, very few that we can

discern with any certainty, and none that say anything about

consent to a search. We might conclude from observing a driver

on the interstate that he is traveling from point A to point B.

But even that simple inference is entirely speculative. Maybe

he's out for a Sunday drive and he's travelling from Point A

back to Point A. If he's traveling quickly we might infer he is

in a hurry to get to his destination. But then again, maybe he

just likes to drive fast. One could multiply examples without

end, but in the end it would just emphasize what we already
know. And that is that there are only two things we can

confidently say that driving a car on Wisconsin's roads means:

The driver is driving his car, and he is in Wisconsin. In a

thousand attempts in a thousand games of Charades, no contestant

will ever guess that driving a car in Wisconsin means "I consent

to a blood test." It does no good to say the driver expresses

such consent because the statute says he does. If one must

resort to the statute books to discover the meaning of the
driver's conduct, then the conduct has utterly failed to convey

22
 No. 2015AP1261-CR.dk

that meaning. Which is not at all surprising because the

statute does not purport to describe the meaning of driving on

Wisconsin's roads, only its consequences.

¶79 Thus, neither the driver's conduct nor the statute can

make driving in Wisconsin mean "I consent to a blood test." And

that necessarily means that "consent" implied by law is not "one

incarnation of consent by conduct." It then follows that

Statement 2——in which the court said consent can be derived from

conduct——is true as a standalone description of the law, but

irrelevant because this is not a "consent implied by conduct"

case. Most of Statement 5 is true but irrelevant for the same

reason——to the extent it says consent implied by conduct can be

constitutionally sufficient, it is saying something inapplicable

to this case.

¶80 Untying the knot isolates the court's error. In

Statement 5, the court said "lest there be any doubt, consent

by . . . implication is constitutionally sufficient consent

under the Fourth Amendment." But without any support from the
text of the statute, or the "consent by conduct" or "express

consent" lines of cases, the statement is just ipse dixit. It

is so because we say it is. And that contributes to an even

more significant problem.

V

¶81 When the court says "consent" implied by law is just

as constitutionally effective as express consent, it is saying

something terribly chilling. It is saying the legislature may
decide when the people of Wisconsin must surrender their

23
 No. 2015AP1261-CR.dk

constitutional rights. The court recognized that conducting a

blood test constitutes a search within the meaning of the Fourth

Amendment. It also recognized that such searches require a

warrant or a legitimate exception to the Fourth Amendment. And

it further recognized that the exceptions usually will not

apply.8 The court dispensed with all of this, and announced that

blood tests are always available when there is probable cause to

believe someone was driving in Wisconsin while intoxicated. The

scythe sharp enough to cut through all of these limitations

turned out to be really quite simple, but no less surprising for

that. The legislature simply had to declare that the people of

Wisconsin had agreed to it.

¶82 If this is right, the Birchfield and McNeely9 courts

should probably feel a little sheepish for all the attention

they paid to the constitutional niceties. Especially the

Birchfield court, which lauded implied consent laws, but somehow

missed our insight that they dispense with both the warrant

requirement and the need to consider the known exceptions to the
Fourth Amendment. "Consent" implied by law, our court says

today, is no "second-tier form of consent." It is

"constitutionally sufficient consent under the Fourth

Amendment." The legislature need only say the people of

8
I am quite sure the court recognizes the limitations. It
cited both McNeely and Birchfield, which together place
substantial restrictions on when an officer may conduct a blood
test without a warrant or consent.
9
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013).

24
 No. 2015AP1261-CR.dk

Wisconsin waive their Fourth Amendment rights by driving, and

immediately it is so.

¶83 A constitutional doctrine of this magnitude deserves

considerably more attention than today's opinion gives it. One

aspect of a more rigorous consideration would include developing

and describing some limiting principles. Today the court says

the legislature properly suspended Wisconsinites' Fourth

Amendment rights when they go for a drive. What of their Sixth

Amendment rights? Perhaps the legislature might decide it would

be easier to get convictions if they also suspend the right to

the effective assistance of counsel. According to our opinion

today, the legislature could simply declare that driving in

Wisconsin waives that right, too. Or the right not to

incriminate oneself. Or the right to a jury. What principle,

exactly, would prevent any of this?

¶84 Nor is there anything about this new doctrine that

necessarily limits it to the context of obtaining blood tests

from intoxicated drivers. There are certain parts of the State
that experience a disproportionate amount of crime. Perhaps the

legislature might decide police need greater access to homes and

other buildings in such areas. It could, according to our

opinion today, adopt an "implied consent" statute in which

recording a property deed comprises consent to a search of one's

property when the police have probable cause to believe the

owner has been involved in a crime. It takes very little

imagination to see how this new doctrine could eat its way
through all of our constitutional rights.

25
 No. 2015AP1261-CR.dk

¶85 I understand the importance of pursuing intoxicated

drivers. But we are deforming our Constitution. By conferring

on the legislature the authority to create consent where none

exists, we are reducing constitutional rights to matters of

legislative grace. For all of these reasons, I join the court's

mandate, but only so much of the opinion as discusses express

consent.

¶86 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins part I of this concurrence.

26
 No. 2015AP1261-CR.ssa

¶87 SHIRLEY S. ABRAHAMSON, J. (dissenting).1 The legal

principle underlying this drunk-driving case is that a blood

draw is a search under the Fourth Amendment.2
1
The first opinion, authored by Chief Justice Patience D.
Roggensack, is a lead opinion. The opinion is referred to as a
lead opinion because it states the mandate agreed to by the
majority of the justices but represents the reasoning of less
than a majority of the participating justices.

Only Justice Annette K. Ziegler and Justice Michael J.
Gableman join the lead opinion.

Writing in concurrence, Justice Rebecca G. Bradley concurs
with the mandate and joins Part I of Justice Daniel Kelly's
concurrence. Justice Daniel Kelly joins the "court's mandate
and the opinion to the extent it discusses Mr. Brar's express
consent to the blood test while he was present in the police
station," but does not "join any part of the court's discussion
of implied consent . . . ." Justice Kelly's opinion, ¶1.

Thus five justices agree with the mandate set forth in the
lead opinion; the mandate is that the decision of the court of
appeals is affirmed.

Disagreeing with the mandate and the reasoning of the lead
opinion, I write in dissent, joined by Justice Ann Walsh
Bradley.

As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We have said
'that a lead opinion is one that states (and agrees with) the
mandate of a majority of the justices, but represents the
reasoning of less than a majority of the participating
justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props., LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874
N.W.2d 533)).
2
Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016);
Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616–17 (1989);
Schmerber v. California, 384 U.S. 757, 767–68 (1966).

1
 No. 2015AP1261-CR.ssa

¶88 The lead opinion presents two questions of law that

this court decides independently of the circuit court and court

of appeals but benefiting from the analyses of those courts.

¶89 First, does a driver's "implied consent" under the

Wisconsin Implied Consent Law constitute, by itself, voluntary

and free consent to a warrantless blood draw for purposes of the

Fourth Amendment? See Wis. Stat. § 343.305 (2015-16)

(attached).3

¶90 Second, is the circuit court's finding of consent in

fact supported by the record, and, if so, has the State met its

burden of proving by clear and convincing evidence that the

defendant, Navdeep S. Brar, voluntarily and freely consented to

the warrantless blood draw?

¶91 I conclude that the lead opinion errs in deciding both

issues.

¶92 In responding to the first question, which it need not

address, the lead opinion proffers a muddled interpretation of

the Implied Consent Law that violates the federal and state
constitutional protections against unreasonable searches. The

State asserts that the Fourth Amendment is irrelevant to a blood

draw undertaken to determine whether the driver is intoxicated.

¶93 The lead opinion and the State engage in an unsound

analysis of the text of the Wisconsin Implied Consent Law and

relevant case law, including State v. Padley, 2014 WI App 65,

3
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated. The 2015-16
version of § 343.305 is the same as the 2013-14 version.

2
 No. 2015AP1261-CR.ssa

354 Wis. 2d 545, 849 N.W.2d 867, Missouri v. McNeely, 133 S. Ct.

1552 (2013), and Birchfield v. North Dakota, 136 S. Ct. 2160

(2016).

¶94 In contrast to the lead opinion's and the State's

positions, I conclude that neither a driver's obtaining a

Wisconsin operators license nor a driver's operating a motor

vehicle in Wisconsin is a manifestation of actual consent to a

later search of the driver's person by a blood draw. In order

for a law enforcement officer to draw blood from a driver

without a warrant, a valid exception to the Fourth Amendment

must apply at the time of the blood draw, such as the driver's

free and voluntary consent or the existence of exigent

circumstances. My position is consistent with recent decisions

3
 No. 2015AP1261-CR.ssa

of other state courts involving implied consent laws and

conscious drivers.4

¶95 The instant case and the Wisconsin Implied Consent Law

should be compared with a very recent (April 2017) Colorado

case, People v. Hyde, 393 P.3d 962 (Colo. 2017). Hyde holds

4
See, e.g., State v. Butler, 302 P.3d 609, 613 (Ariz. 2013)
(holding that "independent of" the implied consent law, "the
Fourth Amendment requires an arrestee's consent to be voluntary
to justify a warrantless blood draw."); People v. Mason, 214
Cal. Rptr. 3d 685, 702 (Cal. Super. Ct. 2016) ("To recap, we
have concluded that advance 'deemed' consent under the implied
consent law cannot be considered actual Fourth Amendment
consent."); Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015)
("Here, the trial court erred when it concluded that
'Defendant's statutory implied consent exempted the blood draw
from the warrant requirement . . . .'"); Williams v. State, 771
S.E.2d 373, 377 (Ga. 2015) (collecting cases) ("cases seem to
indicate . . . that mere compliance with statutory implied
consent requirements does not, per se, equate to actual, and
therefore voluntary, consent on the part of the suspect so as to
be an exception to the constitutional mandate of a warrant");
State v. Halseth, 339 P.3d 368, 371 (Idaho 2014) ("[W]e hold
that an implied consent statute . . . does not justify a
warrantless blood draw from a driver who refuses to
consent . . . or objects to the blood draw . . . . Consent to a
search must be voluntary."); State v. Wulff, 337 P.3d 575, 581
(Idaho 2014) (same); Byars v. State, 336 P.3d 939, 946 (Nev.
2014) ("The implied consent provision . . . does not allow a
driver to withdraw consent, thus a driver's so-called consent
cannot be considered voluntary. Accordingly, we conclude that
[the implied consent provision] is unconstitutional."); State v.
Fierro, 853 N.W.2d 235, 243 (S.D. 2014) (ruling that a Fourth
Amendment totality of the circumstances analysis must be
performed to determine whether consent to a blood draw taken
pursuant to state implied consent law was voluntary); Aviles v.
State, 443 S.W.3d 291, 294 (Tex. Ct. App. 2014) (holding that
implied consent and blood draw statutes are not permissible
exceptions to the warrant requirement and stating that to hold
otherwise "flies in the face of McNeely's repeated mandate that
courts must consider the totality of the circumstances of each
case").

4
 No. 2015AP1261-CR.ssa

that the driver's "statutory consent [under the Colorado

statute] satisfied the consent exception to the Fourth Amendment

warrant requirement." Hyde, 393 ¶.3d at 968.

¶96 Hyde is based on facts very different from the facts

in the instant case. The Colorado Expressed Consent Statute

governing Hyde is very different from the Wisconsin Implied

Consent Law with regard to the facts of the Hyde case.

¶97 The different fact is that the driver in Hyde was

unconscious when the blood was drawn.

¶98 The difference between the Colorado and Wisconsin laws

is that with regard to an unconscious driver, the Colorado law

provides: "An unconscious driver, on the other hand, 'shall be

tested to determine the alcohol or drug content of the person's

blood.' [Colo. Rev. Stat.] § 42-4-1301.1(8) [2016]. In other

words, under the Expressed Consent Statute, the police need not

wait until a drunk-driving suspect returns to consciousness, in

order to afford that suspect an opportunity to refuse."5

¶99 In contrast, under Wisconsin's Implied Consent Law,
unconscious drivers are "presumed not to have withdrawn

consent," but Wisconsin law enforcement officers are not

directed to conduct a blood draw on an unconscious driver. The

5
People v. Hyde, 393 P.3d 962, 966 (Colo. 2017).

With regard to a conscious driver the Colorado Expressed
Consent Statute is, according to the Colorado Supreme Court,
similar in language and effect to implied consent laws in other
states with regard to conscious drivers, even though the statute
is phrased in terms of expressed consent. Hyde, 393 P.3d at 966
n.1.

5
 No. 2015AP1261-CR.ssa

Wisconsin Implied Consent Law (in contrast with the Colorado

law) states that a blood draw "may be administered to the

[unconscious] person." See Wis. Stat. § 343.305(3)(b) ("[a]

person who is unconscious or otherwise not capable of

withdrawing consent is presumed not to have withdrawn

consent . . . ."). Compare State v. Howes, 2017 WI 18, 373

Wis. 2d 468, 893 N.W.2d 812 (lead opinion) (upholding a

warrantless blood draw of an unconscious driver based on exigent

circumstances rather than the Implied Consent Law).

¶100 In addition to these factual and statutory

differences, Hyde is unavailing because Hyde's reasoning relies

on unpersuasive readings of Missouri v. McNeely, 133 S. Ct. 1552

(2013), and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

¶101 Indeed, Hyde has already been rejected by one state

supreme court. In North Carolina v. Romano, No. 199PA16, 2017

WL 2492782 (N.C. June 9, 2017), the North Carolina Supreme Court

was faced with the question whether drawing blood from an

unconscious driver on the basis of only the implied consent law,
without a warrant or exigent circumstances, and violated the

Fourth Amendment.

¶102 The Romano court analyzed Hyde, McNeely and

Birchfield. It disagreed with the Hyde court. It declared the

blood draw unconstitutional: "Treating [the unconscious driver

provision of the implied consent law] as an irrevocable rule of

implied consent does not comport with the consent exception to

the warrant requirement because such treatment does not require
an analysis of the voluntariness of consent based on the

6
 No. 2015AP1261-CR.ssa

totality of the circumstances."6 The Romano court interprets

McNeely and Birchfield substantially the same as I do and as do

other state courts.

¶103 In responding to the second question, I conclude the

lead opinion again errs. The circuit court's finding of consent

in fact is not supported by the record, and even if it is, the

State has failed to meet its burden of proving by clear and

convincing evidence that the defendant voluntarily and freely

consented to the warrantless blood draw in the instant case.

¶104 Because the lead opinion errs as a matter of law and

whittles away constitutional protections for the defendant and

all of us, I dissent.

I

¶105 The lead opinion interprets the Wisconsin Implied

Consent Law to mean that driving in Wisconsin amounts to

voluntary and free consent to a blood draw. According to the

lead opinion, the statutory "implied consent" given previously

equates to actual consent at the time of the blood draw. In the
lead opinion's view, the Implied Consent Law, standing alone,

provides "consent sufficient under the Fourth Amendment——not

some amorphous, lesser form of consent." Lead op., ¶21.

6
North Carolina v. Romano, No. 199PA16, 2017 WL 2492782, at
*8 (N.C. June 9, 2017).

The Romano court cites cases from two other states agreeing
with its conclusion that the statutory implied consent does not
satisfy the consent exception to the Fourth Amendment with
regard to an unconscious driver. See State v. Havatone, 389
P.3d 1251, 1253, 1255 (Ariz. 2017); Bailey v. State, 790
S.E.2d 98, 103 & n.42 (Ga. App. 2016).

7
 No. 2015AP1261-CR.ssa

¶106 The lead opinion concludes: "Brar consented [to the

blood draw] under Wisconsin's implied consent law. He availed

himself of the roads of Wisconsin, and as a result, he consented

through his conduct to a blood draw." Lead op., ¶29.

¶107 The lead opinion recognizes, however, that conscious

drivers are statutorily given an opportunity to withdraw

consent, lead op., ¶23 n.11, but does not address whether an

opportunity to withdraw consent must always be given before a

blood draw is taken. Lead op., ¶23 n.10.7 Oddly, and

inconsistently with the rest of its analysis, the lead opinion

also recognizes that "[e]ven in implied consent cases, we

consider the totality of the circumstances at the time of the

blood draw to determine if an individual's previously-given

consent continues to be voluntary at that time." Lead op., ¶25

(emphasis added).

¶108 The State takes a position similar to the lead

opinion's. The State asserts that the Fourth Amendment is

7
The law is clear, in my opinion, that inherent in the
requirement of voluntary consent is the right of a person to
withdraw consent. See, e.g., United States v. Dyer, 784
F.2d 812, 816 (7th Cir. 1986) ("a person may limit or withdraw
his [or her] consent to a search, and the police must honor such
limitations."); Burton v. United States, 657 A.2d 741, 746 (D.C.
1994) (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) and
Dyer to conclude: "We think these authorities compel the
conclusion that when the basis for a warrantless search is
consent, consent may be withdrawn any time prior to completion
of the search, and we so hold."); 4 Wayne R. LaFave et al.,
Search & Seizure: A Treatise on the Fourth Amendment § 8.1(c)
at 58 (5th ed. 2012) ("consent usually may be withdrawn or
limited at any time prior to the completion of the search")
(footnotes omitted).

8
 No. 2015AP1261-CR.ssa

irrelevant to a blood test requested under the Implied Consent

Law. The State argues that when a driver is stopped and is read

the Informing the Accused Form, which the legislature requires a

law enforcement officer to read verbatim to a driver, the State

is not soliciting Fourth Amendment consent to a blood draw.8 The

State's position is that the question at the Form stage is not

whether the driver consents to the test, "but rather whether the

subject will submit to the test he previously agreed to take, or

recant his consent and face the adverse consequences of a

refusal."9

¶109 According to the State, when a driver is stopped and a

law enforcement officer employs the Implied Consent Law to take

a warrantless blood draw, the Fourth Amendment is not involved:

This is not Fourth Amendment consent terrain; it is
the statutory world of implied consent, a world the
subject has entered though his own behavior. The
injection of Fourth Amendment consent principles into
the Form phase of the implied consent statute
contradicts Wisconsin and U.S. Supreme Court cases
dealing with the law and would severely undermine the
statute's critical role in combating the national
problem of drunken driving.10

8
The State notes that, under its interpretation of the
Implied Consent Law, whether consent to the blood draw is deemed
to occur when a driver applies for an operating license or when
a driver operates a vehicle is not material. In either case,
says the State, the driver has given consent to the blood draw
under the Implied Consent Law before the driver is pulled over
on suspicion of drunk driving.
9
Brief of Plaintiff-Respondent (State) at 7.
10
Brief of Plaintiff-Respondent (State) at 8-9.

9
 No. 2015AP1261-CR.ssa

¶110 The State contends that Fourth Amendment

constitutional rights come into play at the Informing the

Accused stage only after the driver refuses to allow a blood

draw and the State seeks a warrant for the blood draw or asserts

that a Fourth Amendment exception applies, such as exigent

circumstances.

¶111 I disagree with the interpretations of the Informed

Consent Law proffered by the lead opinion and the State.

¶112 The lead opinion's and the State's interpretation of

the Implied Consent law contravenes the text of the Law. By its

plain terms, the Law does not treat the driver as having

actually consented to a blood draw. By its plain terms, the Law

does not empower law enforcement officers to draw a blood sample

when the vehicle is stopped. Rather, the Law directs a law

enforcement officer to inform the driver that a request is being

made for a test, that the driver may refuse to take the test,

and that the driver will face civil legal consequences upon

refusal to take the test.
¶113 The text of the Informing the Accused Form, which the

Law requires to be read to the driver verbatim, advises the

driver that he or she may refuse to give a blood sample but that

a refusal has consequences, including revocation of operating

privileges and use of evidence of the refusal against the driver

in court. Wis. Stat. § 343.305(4). If the Implied Consent Law

furnishes actual consent to a blood draw, why would the

legislature require officers to inform drivers when they are

10
 No. 2015AP1261-CR.ssa

stopped that the officer is requesting a test and that the

driver may refuse the requested test?

¶114 I conclude that in the context of the Wisconsin

Implied Consent Law, the conduct that equates to consent valid

under the United States and Wisconsin constitutions is the

driver's agreeing to submit to the test after being read the

Informing the Accused Form. Were it otherwise, there would be

no need to read the Form or request a test.

¶115 I conclude that the court of appeals interpreted the

Implied Consent Law correctly in State v. Padley, 2014 WI App

65, 354 Wis. 2d 545, 849 N.W.2d 867: The "implied consent"

given by drivers on Wisconsin highways pursuant to the Implied

Consent Law does not equate to "actual consent" under the Fourth

Amendment. Padley, 354 Wis. 2d 545, ¶¶38-39.

¶116 The Padley court concluded that a driver's actual

consent occurs after the driver has heard the Informing the

Accused Form, weighed his or her options (including the refusal

penalties), and decided whether to give or decline actual
consent. Padley, 354 Wis. 2d 545, ¶39. The Implied Consent Law

gives a driver a choice whether to give or decline to give

actual consent when confronted with a request by a law

enforcement officer for a blood draw:

[T]he implied consent law is explicitly designed to
allow the driver, and not the police officer, to make
the choice as to whether the driver will give or
decline to give actual consent to a blood draw when
put to the choice between consent or automatic
sanctions. Framed in the terms of "implied consent, "
choosing the "yes" option affirms the driver's implied
consent and constitutes actual consent for the blood
draw. Choosing the "no" option acts to withdraw the
11
 No. 2015AP1261-CR.ssa

driver's implied consent and establishes that the
driver does not give actual consent. Withdrawing
consent by choosing the "no" option is an unlawful
action, in that it is penalized by "refusal violation"
sanctions, even though it is a choice the driver can
make.
Padley, 354 Wis. 2d 545, ¶39.

¶117 Both the lead opinion and the State suggest that

Padley is incorrect as a matter of law, but neither advocates

expressly overruling the case.11 Padley is binding precedent.

Wis. Stat. § 752.41. The lead opinion should abide by Padley,

overturn it, or distinguish it. Instead, the lead opinion

11
The defendant asserts that the State has forfeited the
issues whether the Fourth Amendment applies to the "Form" stage
of implied consent cases and whether Padley was wrongly decided.
The defendant argues that at no point in this litigation did the
State assert this position until its brief in this court. See
Reply Brief of Defendant-Appellant-Petitioner at 4; Wis. Stat.
§ (Rule) 809.62; State v. Denny, 2017 WI 17, ¶117, 373
Wis. 2d 390, 891 N.W.2d 144 (Abrahamson, J., dissenting);
Michael Heffernan, Appellate Practice and Procedure in Wisconsin
§ 23.8 (7th ed. 2016) ("Failure to raise an issue in the
petition for review is deemed a waiver of any claim that the
supreme court should consider the issue.").

In the court of appeals, the State took the position that
Padley was correctly decided by relying on it. See Plaintiff-
Respondent's (State of Wisconsin) Court of Appeals Brief at 3
("'Consent' is not to be confused with Wisconsin's 'implied
consent' statute, a law which gives law enforcement the
authority to require drivers to choose between consenting to a
blood draw or refusing and facing penalties enacted by the
legislature.") (citing Padley, 354 Wis. 2d 545, ¶¶27, 33).

In this court, the State asserts that Padley's view of the
Implied Consent Law is not correct and that when the Implied
Consent Law is in play, it "is not Fourth Amendment consent
terrain; it is the statutory world of implied consent, a world
the subject has entered through his own behavior." Brief of
Plaintiff-Respondent (State of Wisconsin) at 8.

12
 No. 2015AP1261-CR.ssa

swipes at Padley with clawless paws, unnecessarily leaving

Padley and the Implied Consent Law in a state of uncertainty.

¶118 In addition to not adhering to the text of the

Wisconsin Implied Consent Law or Padley, the lead opinion does

not, in my opinion, pay acute attention to the United States

Supreme Court's recent drunk-driving cases.12

12
The lead opinion's reliance on pre-McNeely and pre-
Birchfield Wisconsin drunk-driving cases (such as State v.
Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980), and State v.
Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528), is
dubious for several reasons.

Recent United States Supreme Court cases significantly
changed the constitutional landscape of drunk-driving. See
State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d 421, 857
N.W.2d 120, cert. denied, 135 S. Ct. 2327 (2015) (McNeely
"changed the landscape of warrantless blood draws in
Wisconsin . . . .").

The statutes at issue in those cases are not the same as
the statute involved in this instant case, and the lead opinion
fails to explain why these cases should control its analysis.

The language from these cases upon which the lead opinion
relies is taken out of context.

The issue addressed in Neitzel was whether the accused had
a right to confer with counsel before deciding to take or refuse
to take a chemical test for intoxication. The court held that
Neitzel did not have the right to confer with counsel. The
issue in the case did not involve implied consent as such.

(continued)
13
 No. 2015AP1261-CR.ssa

¶119 The United States Supreme Court has not questioned the

constitutionality of implied consent laws imposing civil

consequences. Indeed it has confirmed their constitutionality.13

The United States Supreme Court has not, however, directly

decided that the consent exception to the Fourth Amendment is

satisfied solely by implied consent under a state implied

consent law. The Court also has not explicitly decided that

state implied consent laws do not provide actual consent

satisfying the Fourth Amendment. In my opinion, this latter

proposition is implicit in the Court's recent drunk-driving

cases. As Professor LaFave has observed: "Consent in any

meaningful sense cannot be said to exist merely because a person

In Piddington, the issue was whether the accused, who was
profoundly deaf since birth, fully understood the information he
was given orally by the law enforcement officer pursuant to the
Implied Consent Law. The circuit court ruled that the State had
not met its burden to show that the accused understood the
information he was given. The supreme court ruled that whether
the accused actually comprehended the warnings is not a required
part of the inquiry. According to the supreme court, the test
is whether the law enforcement officer's attempts to communicate
with the accused were reasonable under all of the circumstances.
The court did not address whether the accused voluntarily and
freely consented to a blood draw.
13
See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013)
("States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.");
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) ("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 . . . and nothing we say here should be read to cast
doubt on them.").

14
 No. 2015AP1261-CR.ssa

(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."14

¶120 In Missouri v. McNeely, 133 S. Ct. 1552 (2013) and

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

did not expressly address the issue of implied consent stemming

from implied consent laws. But the Court's reasoning derived

from Schmerber v. California, 377 U.S. 757 (1966), is directly

applicable to the issue of consent.

¶121 In McNeely, 133 S. Ct. at 1566, the driver refused to

consent to a blood draw. The Court recognized that valid Fourth

Amendment consent had to be obtained before blood was validly

drawn under the Fourth Amendment, unless an exception other than

consent was in play.

¶122 The McNeely court (in a plurality opinion) explained:

"Whether a warrantless blood test of a drunk-driving suspect is

reasonable must be determined case by case based on the totality

of the circumstances." McNeely, 133 S. Ct. at 1563.15 This
emphasis on totality of circumstances suggests a broader reading

of McNeely than limiting McNeely to exigent circumstances.

14
4 Wayne R. LaFave et al., Search & Seizure: A Treatise
on the Fourth Amendment, § 8.2(l) at 164-65 (5th ed. 2012).
15
The Supreme Court of Georgia has explained: "To hold
that the legislature could nonetheless pass laws stating that a
person 'impliedly' consents to searches under certain
circumstances where a search would otherwise be unlawful would
be to condone an unconstitutional bypassing of the Fourth
Amendment." Cooper v. State, 587 S.E.2d 605, 612 (Ga. 2003)
(quoting Hannoy v. State, 789 N.E.2d 977, 987 (Ind. App. 2003)).

15
 No. 2015AP1261-CR.ssa

¶123 Shortly after the McNeely decision, the United States

Supreme Court vacated a Texas judgment upholding a forced blood

draw based solely on consent derived from the Texas implied

consent statute and remanded the matter to the state court for

further consideration in light of McNeely. Aviles v. Texas, 134

S. Ct. 902, 902 (2014), vacating 385 S.W.3d 110 (Tex. Ct. App.

2012). Aviles suggests that McNeely should be read broadly to

apply to all warrantless blood draws and that the Texas implied

consent statute was not a per se exception to the Fourth

Amendment justifying warrantless blood draws. The Texas court

so interpreted the United States Supreme Court decision on

remand.16

¶124 Birchfield echoes McNeely and Aviles. The Birchfield

Court noted that "[o]ur 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." Birchfield, 136 S. Ct. at 2185. The Court

characterized implied consent laws as laws "to induce motorists
to submit to BAC testing." 136 S. Ct. at 2180. The Birchfield

Court explained that implied consent laws "provide[] that

cooperation with BAC testing [is] a condition of the privilege

of driving on state roads and that the privilege [will] be

16
Aviles v. State, 443 S.W.3d 291, 294 (Tex. Ct. App. 2014)
(holding that implied consent and blood draw statutes are not
permissible exceptions to the warrant requirement and stating
that to hold otherwise "flies in the face of McNeely's repeated
mandate that courts must consider the totality of the
circumstances of each case").

16
 No. 2015AP1261-CR.ssa

rescinded if a suspected drunk driver refuse[s] to honor that

condition." Birchfield, 136 S. Ct. at 2169.

¶125 One of the petitioners in Birchfield, Michael Beylund,

complied with a law enforcement officer's demand for a blood

sample under North Dakota's implied consent law, which imposed

criminal penalties on a driver for refusal to submit to a blood

test.17 Birchfield, 136 S. Ct. at 2172. Although Beylund

submitted to the blood draw, the Birchfield court did not rely

on "implied consent" derived from the implied consent law or

acquiescence to uphold the constitutionality of the blood draw.

Rather, the Court remanded the case to the North Dakota state

court to determine whether Beylund's submission to the blood

draw under the totality of the circumstances was voluntary

consent to the search under the Fourth Amendment when he was

erroneously told that the law required his submission to the

blood draw and that the State could compel a blood test.

Birchfield, 136 S. Ct. at 2186.

¶126 Considering the text of the Wisconsin Implied Consent
Law, Padley, the United States Supreme Court language in McNeely

and Birchfield, the remand of Aviles, and the required totality

of circumstances analysis to determine voluntary consent (which

I discuss further below), I conclude that neither a Wisconsin

17
The Birchfield Court noted that "[t]here must be some
limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public
roads," and "conclude[d] that motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a
criminal offense." Birchfield, 136 S. Ct. at 2185-86.

17
 No. 2015AP1261-CR.ssa

driver's license nor the operation of a motor vehicle in

Wisconsin is a manifestation of actual consent to a later search

of the driver's person by means of a blood draw. To draw blood

without a warrant or an exception to the Fourth Amendment, the

driver's valid consent under the Fourth Amendment must be

obtained at the time of the blood draw.

II

¶127 Whether the defendant consented in fact to the blood

draw and whether the consent was voluntarily and freely given

under the Fourth Amendment and the Wisconsin constitution are

questions of law that this court decides independently.

¶128 I disagree with the lead opinion's analyses and

conclusions of law.

¶129 Consent in fact is a question of historical fact.

This court will uphold a circuit court's finding of fact "if it

is not contrary to the great weight and clear preponderance of

the evidence." State v. Artic, 2010 WI 83, ¶30, 327

Wis. 2d 392, 786 N.W.2d 430.18 This court, however,
independently applies constitutional principles to these facts.19

18
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. First, we
review the circuit court's findings of historical fact under a
deferential standard, upholding them unless they are clearly
erroneous. Second, we independently apply constitutional
principles to those facts.") (internal citations omitted).
19
State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733
N.W.2d 634 (citing State v. Martwick, 2000 WI 5, ¶16, 231
Wis. 2d 801, 604 N.W.2d 552).

18
 No. 2015AP1261-CR.ssa

¶130 In the instant case, the record includes an

audiovisual recording of the exchange during which the

defendant's alleged consent took place. Just as when a case and

its factual issues are contained solely in written, documentary

evidence, I can independently analyze the audiovisual evidence

and need not give special deference to the circuit court's

findings regarding factual issues, such as consent in fact.20

20
In such circumstances, the trial court's factual findings
do not carry the same weight because the "trial court's
customary opportunity to evaluate the demeanor and thus the
credibility of the witnesses . . . plays only a restricted role
. . . . " Pullman-Standard v. Swint, 456 U.S. 273, 301-02
(1982) (Marshall, J., dissenting) (quoting United States v. Gen.
Motors Corp., 384 U.S. 127, 141 (1966) and citing Jennings v.
Gen. Med. Corp., 604 F.2d 1300, 1305 (10th Cir. 1979)); Hague v.
Liberty Mut. Ins. Co., 571 F.2d 262, 264 (5th Cir. 1978)
("Because the case was submitted to the district court in the
form of documents and transcripts, [the] burden of showing that
the district court's findings of fact were 'clearly erroneous'
is somewhat lessened.").

(continued)
19
 No. 2015AP1261-CR.ssa

¶131 The audiovisual recording undermines the circuit

court's finding of consent in fact and the lead opinion's

discussion. The defendant did utter the words "of course," but

they are associated with his comment that "I don't want my

license to be taken. This is a complicated question."

¶132 Although the lead opinion finds that "[n]othing in the

recording rebuts the officer's testimony as to Brar's

statements," lead op., ¶33, the audiovisual recording does

conflict with the officer's testimony describing the "of course"

comment. The lead opinion's affirmation of consent in fact

based on the recording is rebutted by the audiovisual recording.

The recording does not support the finding that the defendant

consented in fact.

Accord Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶27,
241 Wis. 2d 804, 623 N.W.2d 751 ("This court and the circuit
court are equally able to read the written record."); State ex
rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977)
(same); Vogt, Inc. v. Int'l Bhd. of Teamsters, 270 Wis. 315, 71
N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74
N.W.2d 749 (1956) ("[The reason for the clearly erroneous
standard is that the] appellate court must give weight to the
findings of a trial court made in a contested matter upon oral
testimony where the trial judge is in a position to pass on the
credibility of the witnesses and the weight to be given to their
testimony. He has full opportunity to observe the demeanor of
the witnesses and judge their veracity——the appellate court does
not. The reason for the rule disappears, however, when the
appeal is presented upon no more than pleadings and affidavits,
as is the case here."); Cohn v. Town of Randall, 2001 WI App
176, ¶7, 247 Wis. 2d 118, 633 N.W.2d 674 ("We are in just as
good a position as the trial court to make factual inferences
based on documentary evidence and we need not defer to the trial
court's findings."); Racine Educ. Ass'n v. Bd. of Educ., 145
Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988) (same); Pfeifer
v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571 n.1, 360
N.W.2d 65 (Ct. App. 1984) (same).

20
 No. 2015AP1261-CR.ssa

¶133 Rather, the audiovisual recording suggests, in my

opinion, that the defendant was "stalling" to avoid taking the

test. The law enforcement officer should have treated the

defendant's conduct as a refusal to allow the blood test.21

¶134 In sum, based upon the audiovisual recording, I

conclude that the defendant did not consent in fact to the blood

draw.

¶135 Even if the defendant consented in fact, the question

becomes whether the consent was freely and voluntarily given,

that is, whether the consent was constitutionally valid.

¶136 The lead opinion delves into what constitutes

voluntary consent, attempting to redefine the Fourth Amendment

consent standard. The lead opinion withdraws "any

language . . . [in the cases] that requires that consent to a

search be given knowingly and intelligently." Lead op., ¶27.

Thus, the lead opinion overrules a number of unnamed cases,

including Gautreaux v. State, 52 Wis. 2d 489, 492, 190

N.W.2d 542 (1971), a longstanding precedent.
¶137 More than forty years ago in Gautreaux, the Wisconsin

Supreme Court stated the following regarding a defendant's

consent to a constitutionally protected search: "[T]he state

21
See State v. Rydeski, 214 Wis. 2d 101, 107, 571
N.W.2d 417 (Ct. App. 1997) (driver's conduct in insisting on
using the restroom after agreeing to take the test in order to
stall qualified as a "refusal"); Village of Elkhart Lake v.
Borzyskowski, 123 Wis. 2d 185, 191, 366 N.W.2d 506 (Ct. App.
1985) (driver who, while not verbally refusing to take
breathalyzer test, engaged in conduct which effectively
prevented officer from obtaining accurate breath sample refused
to take the test).

21
 No. 2015AP1261-CR.ssa

has the burden of proving by clear and positive evidence the

search was the result of a free, intelligent, unequivocal and

specific consent . . . ." Gautreaux v. State, 52 Wis. 2d 489,

492, 190 N.W.2d 542 (1971) (emphasis added).22 Gautreaux has not

been overruled.

¶138 Why does the lead opinion attempt to overrule

Gautreaux now? Because, according to the lead opinion, "we

interpret our constitution consistent with the Fourth

Amendment," and the United States Supreme Court has said that

"[n]othing, either in the purposes behind requiring a 'knowing'

and 'intelligent' waiver of trial rights, or in the practical

application of such a requirement suggests that it ought to be

extended to the constitutional guarantee against unreasonable

searches and seizures." Lead op., ¶¶19 n.8, 27 (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)).

¶139 This reasoning is unsound. First, this court need not

(and does not always) interpret Article I, Section 11 of the

Wisconsin Constitution in tandem with the Fourth Amendment to
the United States Constitution. See, e.g., State v. Dubose,

2005 WI 126, ¶41, 285 Wis. 2d 143, 699 N.W.2d 582; State v.

Eason, 2001 WI 98, ¶60, 245 Wis. 2d 206, 629 N.W.2d 625.

¶140 Second, it seems to me that the substance of the

"knowing" and "intelligent" standard, even if not precisely the

same as used in the waiver of constitutional trial rights

22
Citing Holt v. State, 17 Wis. 2d 468, 117 N.W.2d 626
(1962); United States v. Callahan, 439 F.2d 852 (2d Cir. 1971);
United States v. Berkowitz, 429 F.2d 921 (1st Cir. 1970).

22
 No. 2015AP1261-CR.ssa

discussed in Schneckloth, 412 U.S. at 141,23 is implicitly

required by the totality of the circumstances test that the

United States Supreme Court and this court have adopted to

determine the voluntariness of consent under the federal and

state constitutions.

¶141 The United States Supreme Court in Schneckloth, upon

which the lead opinion relies, recognized that "knowing" and

"intelligent" play a role in determining whether valid consent

was given under the Fourth Amendment. The Schneckloth Court

stated:

The traditional definition of voluntariness we accept
today [for Fourth Amendment purposes] has always taken
into account evidence of minimal schooling, low
intelligence, and the lack of any effective warnings
to a person of his rights; and the voluntariness of
any statement taken under those conditions has been
carefully scrutinized to determine whether it was in
fact voluntarily given.
Schneckloth, 412 U.S. at 248.

¶142 The factors listed in the Wisconsin cases to be

considered in determining voluntary consent under the Fourth

Amendment and the Wisconsin Constitution are similar and also

23
In Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973),
the United States Supreme Court declared:

There is a vast difference between those rights that
protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment. Nothing,
either in the purposes of behind requiring a "knowing"
and "intelligent" waiver of trial rights, or in the
practical application of such a requirement suggests
that it ought to be extended to the constitutional
guarantee against unreasonable searches and seizures.

23
 No. 2015AP1261-CR.ssa

imply that a defendant's consent must be knowing and

intelligent. See State v. Artic, 2010 WI 83, ¶¶28-33, 327

Wis. 2d 392, 786 N.W.2d 430.

¶143 The Artic case sets forth the following non-exclusive

list of factors to be considered in the totality of the

circumstances to determine whether consent was freely and

voluntarily given:

(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
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.
State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786 N.W.2d 430

(citing State v. Phillips, 218 Wis. 2d 180, 198-203, 577

N.W.2d 794 (1998) (emphasis added).

¶144 Indeed, the statement in Padley 354 Wis. 2d 545, ¶64,
that consent requires a showing that a "search was the result of

a free, intelligent, unequivocal and specific consent without

any duress or coercion, actual or implied" seems to be a

24
 No. 2015AP1261-CR.ssa

shorthand form for the factors that this court has set forth in

Artic.24

¶145 With regard to the defendant's consent in the instant

case, it was obtained by the officer's giving the defendant

misinformation, namely that the officer did not need a warrant

to draw blood.25 Advising the defendant, through words or

conduct, that a warrant was not required for a blood draw was

either an express or implied "unlawful assertion of police

authority" to take a blood draw without a warrant.26 Moreover,

the first factor identified in Artic, "whether the police used

deception, trickery, or misrepresentation in their dialogue with

24
State v. Padley, 354 Wis. 2d 545, ¶64 (quoting State v.
Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Wis. Ct. App.
1993) (quoting Gautreaux, 52 Wis. 2d at 492)); accord State v.
Giebel, 2006 WI App 239, ¶18, 297 Wis. 2d 446, 724 N.W.2d 402
("Orderly submission to law enforcement officers who, in effect,
incorrectly represent that they have the authority to search and
seize property, is not knowing, intelligent and voluntary
consent under the Fourth Amendment.") (Emphasis added.).
25
See State v. Giebel, 2006 WI App 239, ¶18, 297
Wis. 2d 446, 724 N.W.2d 402 (citing United States v. Elliot, 210
F. Supp. 357, 360 (D. Mass. 1962) ("Orderly submission to law
enforcement officers who, in effect, incorrectly represent that
they have authority to search and seize property is not knowing,
intelligent and voluntary consent under the Fourth Amendment.").
26
State v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729
N.W.2d 182 (citing Johnson v. United States, 333 U.S. 10, 12-13
(1948); United States v. Morales, 171 F.3d 978, 982-83 (5th Cir.
1999); United States v. Pena-Saiz, 161 F.3d 1175, 1177 (8th Cir.
1998); United States v. Baro, 15 F.3d 563, 566-67 (6th Cir.
1994); State v. Wuest, 190 Wis. 251, 255, 208 N.W. 899 (1926);
State v. Johnson, 177 Wis. 2d 224, 228, 234, 501 N.W.2d 876 (Ct.
App. 1993)).

25
 No. 2015AP1261-CR.ssa

the defendant to persuade him to consent," is pertinent in the

instant case.27

¶146 I conclude that the defendant did not consent in fact

and that if he did, the consent was not the result of "an

essentially free and unconstrained choice," Schneckloth, 412

U.S. at 225, 227, but merely his acquiescence to an unlawful

assertion of police authority. The officer erroneously advised

the defendant that blood could be drawn without a warrant. See

lead op., ¶6. Accordingly, I conclude that the results of the

warrantless blood draw should be suppressed.

¶147 For the reasons set forth, I dissent.

¶148 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

27
State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786
N.W.2d 430. See also Bumper v. North Carolina, 391 U.S. 543,
548 (1968); State v. Rodgers, 119 Wis. 2d 102, 349 N.W.2d 453
(1984) ("Acquiescence to an unlawful assertion of police
authority is not equivalent to consent.").

See also Birchfield, 136 S. Ct. at 2187 (remanding
Beylund's case to the state courts to determine whether
submission to a blood draw after the arresting officer
erroneously advised the accused that he was subject to criminal
penalties if he refused to allow the blood draw).

26
 No. 2015AP1261-CR.ssa

27
 No. 2015AP1261-CR.ssa

28
 No. 2015AP1261-CR.ssa

29
 No. 2015AP1261-CR.ssa

30
 No. 2015AP1261-CR.ssa

31
 No. 2015AP1261-CR.ssa

32
 No. 2015AP1261-CR.ssa

33
 No. 2015AP1261-CR.ssa

1