914 N.W.2d 151 (Wis. 2018), 2015AP304-CR, State v. Mitchell

Docket Nº:2015AP304-CR
Citation:914 N.W.2d 151, 2018 WI 84
Opinion Judge:PATIENCE DRAKE ROGGENSACK, C.J.
Party Name:STATE of Wisconsin, Plaintiff-Respondent, v. Gerald P. MITCHELL, Defendant-Appellant.
Attorney:For the defendant-appellant, there were briefs filed by Linda J. Schaefer and Schaefer Law Firm, S.C., Sturgeon Bay. There was an oral argument by Linda J. Schaefer. For the plaintiff-respondent, there was a brief filed by Ryan J. Walsh, chief deputy solicitor general, with whom on the brief were...
Judge Panel:DANIEL KELLY, J. (concurring). Justice REBECCA GRASSL BRADLEY joins this concurrence. ANN WALSH BRADLEY, J. (dissenting). Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Case Date:July 03, 2018
Court:Supreme Court of Wisconsin
 
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Page 151

914 N.W.2d 151 (Wis. 2018)

2018 WI 84

STATE of Wisconsin, Plaintiff-Respondent,

v.

Gerald P. MITCHELL, Defendant-Appellant.

No. 2015AP304-CR

Supreme Court of Wisconsin

July 3, 2018

Oral Argument: April 11, 2018

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[Copyrighted Material Omitted]

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Appeal from Circuit Court, Sheboygan County, Terence T. Bourke, Judge (L.C. No. 2013CF365)

For the defendant-appellant, there were briefs filed by Linda J. Schaefer and Schaefer Law Firm, S.C., Sturgeon Bay. There was an oral argument by Linda J. Schaefer.

For the plaintiff-respondent, there was a brief filed by Ryan J. Walsh, chief deputy solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and David H. Perlman, assistant attorney general. There was an oral argument by Ryan J. Walsh, chief deputy solicitor general.

An amicus curiae brief was filed on behalf of Mothers Against Drunk Driving by Kevin M. St. John and Bell Giftos St. John, LLC, Madison, with whom on the brief was Theane D. Evangelis, Lauren M. Blas, and Gibson, Dunn & Crutcher, LLP, Los Angeles, California. There was an oral argument by Lauren M. Blas.

OPINION

PATIENCE DRAKE ROGGENSACK, C.J.

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[¶ 1] This appeal is before us on certification from the court of appeals.

[¶ 2] Gerald Mitchell was convicted of operating while intoxicated and with a prohibited alcohol concentration, based on the test of blood drawn without a warrant while he was unconscious, pursuant to Wis. Stat. § 343.305(3)(b) (2013-14).1 Mitchell contends that the blood draw was a search conducted in violation of his Fourth Amendment rights.

[¶ 3] We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin’s roads and drinking to a point evidencing probable cause of intoxication. Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under Wis. Stat. § 343.305(4), to withdraw his consent previously given; and therefore, § 343.305(3)(b) applied, which under the totality of circumstances herein presented reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.

I. BACKGROUND

[¶ 4] On the afternoon of May 30, 2013, officers from the City of Sheboygan Police Department were dispatched in response to a report that the caller had seen Mitchell, who appeared intoxicated, get into a gray van and drive away. Between 30 and 45 minutes later, Officer Alex Jaeger made contact with Mitchell. He found Mitchell walking near a beach. Mitchell was wet, shirtless and covered in sand. Mitchell’s speech was slurred and he had difficulty maintaining his balance.

[¶ 5] Mitchell admitted to Jaeger that he had been drinking prior to driving and that he continued drinking at the beach. He also stated that he had parked his vehicle "because he felt he was too drunk to drive." Nearby, officers found the gray van Mitchell was reported to have been driving.

[¶ 6] After observing Mitchell’s physical condition, Jaeger believed that it would not be safe to conduct standard field sobriety tests. Instead, he administered a preliminary breath test, which indicated a blood alcohol concentration (BAC) of 0.24.2 Jaeger then arrested Mitchell for operating while intoxicated.

[¶ 7] Following his arrest, and during the drive to the police station, Mitchell’s physical condition deteriorated and his demeanor became more "lethargic." Upon arrival

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at the police station, it became apparent that an evidentiary breath test would not be feasible. Instead, Jaeger opted to transport Mitchell to a nearby hospital for a blood draw.

[¶ 8] During the approximately eight-minute drive to the hospital, Mitchell "appeared to be completely incapacitated, [and] would not wake up with any type of stimulation." Upon arriving at the hospital, Mitchell needed to be transported in a wheelchair where he sat "slumped over" and unable to maintain an upright seating position.

[¶ 9] After Mitchell entered the hospital emergency room, Jaeger read Mitchell the Informing the Accused form, thereby reading Mitchell the statutory opportunity to withdraw his consent to a blood draw. However, Mitchell was "so incapacitated [that] he could not answer." Jaeger directed hospital staff to draw a sample of Mitchell’s blood.3 They did so. Mitchell did not awaken during the procedure.

[¶ 10] The blood draw occurred approximately one hour following Mitchell’s arrest. The analysis of his blood sample showed a BAC of 0.222.

[¶ 11] Mitchell was subsequently charged with driving with a prohibited alcohol concentration (PAC), as well as operating a motor vehicle while intoxicated (OWI), as a 7th offense. Prior to trial, Mitchell moved to suppress the results of the blood test. He alleged that the warrantless blood draw violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.

[¶ 12] In response to Mitchell’s motion, the State contended that he had consented to the blood draw when he drove his van on Wisconsin highways according to a subsection of Wisconsin’s implied-consent law, Wis. Stat. § 343.305(2). The State also contended that as an unconscious person, he is presumed not to have withdrawn his consent, pursuant to § 343.305(3)(b). The State expressly stated that it was not relying on exigent circumstances to justify the blood draw.

[¶ 13] The circuit court4 denied Mitchell’s suppression motion in reliance on Wis. Stat. § 343.305(3)(b). The circuit court concluded that the officer had probable cause to believe that Mitchell was driving while intoxicated, and therefore, the blood draw was lawful. A jury convicted Mitchell of the OWI and PAC charges.

[¶ 14] Mitchell appealed his conviction based on the sole contention that the warrantless blood draw violated his Fourth Amendment right to be free from "unreasonable searches and seizures."

[¶ 15] The court of appeals, noting the opportunity to clarify the law in light of our recent decision in State v. Howes, 2017 WI 18, 373 Wis.2d 468, 893 N.W.2d 812,5 certified the following questions: (1) whether "implied-consent," the potential for which is described in Wis. Stat. § § 343.305(2) & (3)(a), which arises

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through a driver’s voluntary conduct in operating a vehicle on Wisconsin roadways after drinking to intoxication, is constitutionally sufficient consent, and (2) whether a warrantless blood draw from an unconscious person pursuant to Wis. Stat. § 343.305(3)(b) violates the Fourth Amendment.

II. DISCUSSION

A. Standard of Review

[¶ 16] Whether a suppression motion was properly denied presents a question of constitutional fact. Howes, 373 Wis.2d 468, ¶ 17, 893 N.W.2d 812 (citing State v. Tullberg, 2014 WI 134, ¶ 27, 359 Wis.2d 421, 857 N.W.2d 120). We will not set aside a circuit court’s findings of historical fact unless they are clearly erroneous. State v. Brereton, 2013 WI 17, ¶ 17, 345 Wis.2d 563, 826 N.W.2d 369. However, the application of those facts to Fourth Amendment principles presents a question of law that we review independently. Id.

B. Fourth Amendment General Principles

[¶ 17] The Fourth Amendment to the United States Constitution, and its Wisconsin counterpart, Article I, Section 11 of the Wisconsin Constitution,6 protect persons’ rights to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV; Wis. Const. art. I, § 11. "As the text makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California, 573 U.S. __, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). As a result, the Fourth Amendment does not prohibit all searches undertaken by government actors, but "merely proscribes those which are unreasonable." Howes, 373 Wis.2d 468, ¶ 21, 893 N.W.2d 812 (quoting Tullberg, 359 Wis.2d 421, ¶ 29, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ) ).

[¶ 18] Drawing blood is a search of the person. Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160, 2173, 195 L.Ed.2d 560 (2016) (stating that "our cases establish that the taking of a blood sample or the administration of a breath test is a search"); Howes, 373 Wis.2d 468, ¶ 20, 893 N.W.2d 812 (concluding that a blood draw is a search). Furthermore, a warrantless search is "presumptively unreasonable." State v. Brar, 2017 WI 73, ¶ 16, 376 Wis.2d 685, 898 N.W.2d 499 (quoting Tullberg, 359 Wis.2d 421, ¶ 30, 857 N.W.2d 120).

[¶ 19] However, "there are certain ‘specifically established and well-delineated’ exceptions to the Fourth Amendment’s warrant requirement." Brar, 376 Wis.2d 685, ¶ 16, 898 N.W.2d 499 (quoting State v. Williams, 2002 WI 94, ¶ 18, 255 Wis.2d 1, 646 N.W.2d 834). One such exception is a search conducted pursuant to consent. Brar, 376 Wis.2d 685, ¶ 16, 898 N.W.2d 499. Warrantless consent searches are reasonable; and therefore, they are consistent with the Fourth Amendment. Fernandez v. California, 571 U.S. 292, 134 S.Ct. 1126, 1137, 188 L.Ed.2d 25 (2014); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

C. Consent

[¶ 20] In determining whether consent was given, we employ a two-step process.

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First, we examine whether relevant words, gestures or conduct supports a finding of consent. State v. Artic, 2010 WI 83, ¶ 30, 327 Wis.2d 392, 786 N.W.2d 430. Second, we examine whether the consent was voluntarily given. Id.

1. Implied Consent

[¶ 21] As we have explained, consent to search need not be given verbally. State v. Phillips, 218 Wis.2d...

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