State v. Dalton, No. 2016AP2483-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: ANN WALSH BRADLEY, J.
• Citation: 914 N.W.2d 120,2018 WI 85,383 Wis.2d 147
• Docket Number: No. 2016AP2483-CR
• Decision Date: 03 July 2018
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Patrick H. DALTON, Defendant-Appellant-Petitioner.

383 Wis.2d 147
914 N.W.2d 120
2018 WI 85

STATE of Wisconsin, Plaintiff-Respondent,
v.
Patrick H. DALTON, Defendant-Appellant-Petitioner.

No. 2016AP2483-CR

Supreme Court of Wisconsin.

Oral Argument: March 12, 2018
Opinion Filed: July 3, 2018

For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Hannah Schieber Jurss, assistant state public defender.

For the plaintiff-respondent, there was a brief filed and an oral argument by David H. Perlman, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

ANN WALSH BRADLEY, J.

¶1 The petitioner, Patrick Dalton, seeks review of an unpublished court of appeals decision affirming his judgment of conviction and sentence and upholding the circuit court's order denying his postconviction motion.¹ Dalton asserts that he is entitled to withdraw his no contest pleas because his trial counsel was ineffective for failing to move to suppress blood evidence collected without a warrant. In the alternative, he argues that he is entitled to resentencing because the circuit court relied on an improper sentencing factor.

¶2 Specifically, Dalton contends first that because police lacked the exigent circumstances necessary to draw his blood without a warrant, his counsel was ineffective for failing to move to suppress the evidence. He asserts next that the circuit

914 N.W.2d 124

court impermissibly lengthened his sentence for exercising his constitutional right to refuse a warrantless blood draw.

¶3 We conclude that exigent circumstances existed, permitting police to draw Dalton's blood absent a warrant. Accordingly, his counsel was not ineffective for failing to file a meritless motion to suppress.

¶4 We further conclude that the circuit court violated Birchfield v. North Dakota, 579 U.S. ––––, 136 S.Ct. 2160, 2185-86, 195 L.Ed.2d 560 (2016),² by explicitly subjecting Dalton to a more severe criminal penalty because he refused to provide a blood sample absent a warrant. Consequently, Dalton is entitled to resentencing.

¶5 Accordingly, although we agree with the court of appeals that Dalton's counsel was not ineffective, we nevertheless reverse and remand to the circuit court for resentencing.

I

¶6 This case arises from a single car crash in the Village of Richfield in which Patrick Dalton (Dalton) was the driver. After driving erratically and at speeds reaching approximately one hundred miles per hour, Dalton crashed his car into a ditch. Both Dalton and his passenger were injured.

¶7 Washington County sheriff's deputies responded to the scene of the crash at 10:07 p.m. on December 12, 2013. Upon arrival, the passenger in the car informed deputies that Dalton had been drinking and that Dalton was the driver of the car. When law enforcement arrived, Dalton was lying on the roof of the car, unconscious, and smelled of alcohol. Dalton was taken about a mile from the crash scene by ambulance, where he awaited the arrival of a Flight for Life helicopter.

¶8 After Dalton was driven away from the scene, Washington County Deputy Dirk Stolz remained and took the lead in investigating the scene. Deputy Stolz was accompanied by Deputies Charles Vanderheiden, Chad Polinske, and Michael Anderson. They were later joined by Lieutenant Robert Martin. Ten to 15 members of the Richfield Fire Department were also present, working to keep the area safe and blocking traffic to ensure officer safety.

¶9 While Deputy Polinske interviewed witnesses, Deputy Vanderheiden left the crash scene to await the helicopter with Dalton, who remained in the ambulance and unconscious. Deputy Vanderheiden arrived at the landing zone at 10:37 p.m. and testified that it took about 45 minutes from the time he got there for the helicopter to arrive. Upon its arrival, Flight for Life airlifted Dalton from the landing zone to Froedtert Hospital in Milwaukee.

¶10 Subsequent to Dalton being airlifted from the scene, Deputy Vanderheiden traveled to Community Memorial Hospital in Menomonee Falls to speak with the passenger. Leaving the crash scene at 11:14 p.m., Deputy Stolz drove to Froedtert Hospital in Milwaukee to reconnect with Dalton.

¶11 When Deputy Stolz arrived at Froedtert Hospital at 11:54 p.m., Dalton was receiving emergency treatment. After the treatment was complete, Deputy Stolz was able to speak to Dalton, who had regained consciousness.

¶12 Upon interacting with Dalton, Deputy Stolz observed that Dalton had glassy bloodshot eyes and the strong odor of alcohol

914 N.W.2d 125

emanating from his mouth. Dalton also appeared lethargic.

¶13 At approximately 12:05 a.m., nearly two hours after being dispatched to the crash scene, Deputy Stolz informed Dalton that he was under arrest and read Dalton the "Informing the Accused" form.³ Dalton refused a blood draw.

¶14 Believing that there were exigent circumstances that would obviate the need to obtain a warrant, Deputy Stolz then instructed a nurse to draw Dalton's blood, which was accomplished at 12:14 a.m. A subsequent blood test indicated that Dalton's blood alcohol content was 0.238 grams per 100 milliliters, nearly three times the legal limit of 0.08.

¶15 At the time Deputy Stolz read Dalton the Informing the Accused form, there were nine deputy sheriffs on duty in Washington County, along with one supervisor. Several of those who were present at the crash scene left and proceeded directly to other incidents that had taken place in the county that night requiring immediate attention.

¶16 Deputy Polinske, who had initially responded to the crash scene, ended his work day at 11:00 p.m. Deputy Anderson arrived on the scene at 10:15 p.m. and was cleared to leave at 11:42 p.m. He and one other deputy were subsequently dispatched to an auto theft call in the Village of Richfield.

¶17 Lieutenant Martin arrived at the scene at 11:01 p.m. and was cleared to leave at 11:46 p.m. After leaving the crash site he proceeded immediately to another auto accident that involved personal injury in which the driver had fled the scene, the vehicle was in the middle of the road, and power poles were downed. Three additional deputies accompanied Lieutenant Martin to this scene.

¶18 With Deputy Stolz in Milwaukee attending to Dalton and Deputy Vanderheiden in Menomonee Falls with the passenger, only two deputies were left to cover all of Washington County. One of these deputies was assigned to the northern half of the 432 square mile county, while the other was assigned to the southern half.

914 N.W.2d 126

¶19 Dalton was ultimately charged with three offenses: operating while intoxicated (OWI) as a second offense, operating with a prohibited alcohol concentration (PAC) as a second offense, and operating after revocation (OAR). Dalton entered no contest pleas to the OWI and OAR charges, and the PAC charge was dismissed and read in.⁴ The case proceeded directly to sentencing.

¶20 At sentencing, the circuit court heard argument from the State and Dalton's counsel, as well as a brief statement from Dalton himself. In pronouncing its sentence, the circuit court observed the nature of the offense, addressing Dalton:

You certainly were driving like a maniac this night, and you were extremely uncooperative with the officers. You could have killed your friend, you could have killed yourself, or you could have killed someone completely innocent, and you acted in total disregard of those risks, endangering anyone else who was on the road at the time.

¶21 The circuit then proceeded to address Dalton's refusal to submit to a blood test:

The other thing you did is anybody who drives a motor vehicle in Wisconsin impliedly consents to a blood or breath draw after they're arrested. And you were arrested, and you disregarded that, and you will be punished for that today. You don't have the right not to consent. And that's going to result in a higher sentence for you.

Dalton was sentenced to 180 days in jail on the OWI count and 90 days on the OAR count, to be served consecutively.

¶22 Dalton filed a postconviction motion seeking to withdraw his no contest pleas. He asserted that his counsel was ineffective for failing to file a motion to suppress the evidence resulting from the warrantless blood draw. In the event his ineffective assistance of counsel claim proved unsuccessful, he alternatively sought resentencing. He contended that the circuit court erroneously exercised its discretion by explicitly punishing him for exercising his constitutional right to refuse a warrantless blood draw.

¶23 The circuit court denied Dalton's motion for plea withdrawal without holding an evidentiary hearing. It concluded "that exigent circumstances justified the warrantless blood draw in this case" and that therefore "trial counsel is not ineffective for failing to file a meritless motion[.]"

¶24 Dalton's motion for resentencing was also denied. In denying the motion, the circuit court stated, "everybody knows a court may not punish a person for exercise of the constitutional right, a right to trial, right to remain silent, but there is no right to refuse, so the [c]ourt has discretion and I think [has] the responsibility to consider a refusal...