State v. Padley, No. 2013AP852–CR.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: BLANCHARD
• Citation: 2014 WI App 65,849 N.W.2d 867,354 Wis.2d 545
• Docket Number: No. 2013AP852–CR.
• Decision Date: 22 May 2014
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Megan A. PADLEY, Defendant–Appellant.

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

STATE of Wisconsin, Plaintiff–Respondent,
v.
Megan A. PADLEY, Defendant–Appellant.^†

No. 2013AP852–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 15, 2013.
Opinion Filed May 22, 2014.

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On behalf of the defendant-appellant, the cause was submitted on the briefs of

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Marcus J. Berghahn and John D. Hyland of Hurley, Burish & Stanton, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BLANCHARD, P.J., LUNDSTEN and SHERMAN, JJ.

BLANCHARD, P.J.

¶ 1 Megan Padley was the driver of a vehicle involved in a fatal crash. There is no dispute that a sheriff's deputy who investigated the crash, and who subsequently directed a draw of Padley's blood, lacked probable cause to believe that Padley had alcohol or a controlled substance in her system. Nonetheless, relying on an amendment to the implied consent law effective as of 2010, Wis. Stat. § 343.305(3)(ar)2. (2011–12),¹ the deputy used an “Informing the Accused” form to require Padley to choose between consenting to a draw of her blood for purposes of a chemical test or being sanctioned with automatic penalties that include driver's license revocation. When put to that choice, Padley consented to a blood draw. A test of the resulting blood sample revealed the presence of a controlled substance, which the State relied on in this prosecution.

¶ 2 Padley moved to suppress the results of the blood test, arguing under a variety of rationales that the blood draw was an unlawful search, including that Wis. Stat. § 343.305(3)(ar)2. is unconstitutional, that her consent to the search was not voluntary, and that the deputy lacked “reason to believe” that she had committed a traffic violation, as required under § 343.305(3)(ar)2. The circuit court denied her motion to suppress. Padley now appeals that decision.

¶ 3 We conclude that Padley fails to demonstrate that Wis. Stat. § 343.305(3)(ar)2. is facially unconstitutional. We also conclude that there is no merit in her argument that her consent to the blood draw was not voluntary. Finally, we conclude that the circuit court did not err as a matter of law in determining that the deputy had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties. Accordingly, we affirm the decision of the circuit court.

BACKGROUND

¶ 4 The facts are taken from an evidentiary hearing at which a sheriff's deputy was the only witness. The deputy responded to a highway crash involving a car and a motorcycle. Padley had been the driver of the car, and two people had been riding on the motorcycle. Before the crash, the motorcycle was behind the car on the highway, traveling in the same direction.

¶ 5 When the deputy arrived at the scene, emergency medical personnel were present and the deputy learned from them that the passenger on the motorcycle had been severely injured in the crash.² Padley told the deputy that, just before the crash, she missed a turn while driving on the highway and used a driveway to attempt to execute a U-turn. When she was

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about halfway through the attempted U-turn, the motorcycle struck the driver's side of her vehicle.

¶ 6 Regarding the crash scene after the collision, the deputy first testified that he observed Padley's vehicle in the “middle” of the two-lane highway. On cross-examination, however, after being shown a photograph of the scene of the accident, the deputy testified that he was “not disputing” that Padley's vehicle was entirely in the lane of traffic into which she had made the U-turn. The deputy also testified that the motorcycle came to rest partially in each lane. The deputy observed skid marks apparently left by the motorcycle, starting in the lane in which both the motorcyclist and Padley had originally been driving and traveling into the opposite lane, into which Padley turned.

¶ 7 The deputy testified that attempting a U-turn at that location on the highway would not necessarily constitute a traffic violation, but that it would be a violation if it interfered with other traffic. The deputy concluded, while on the scene, that Padley's attempted U-turn had interfered with the progress of the motorcycle.

¶ 8 After interviewing Padley at the crash scene, the deputy asked her to perform field sobriety tests, which she did. The deputy observed no signs of impairment. The deputy then requested that Padley accompany him to the Sheriff's Department for a blood draw pursuant to Wis. Stat. § 343.305(3)(ar)2., which as referenced above became part of the implied consent law effective in 2010.

¶ 9 This statute provides that a law enforcement officer is authorized to request that a person submit to a blood draw, using an “Informing the Accused” form using language taken from Wis. Stat. § 343.305(4), when that person “is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that [the operator of the vehicle] violated any state or local traffic law.” ³Sec. 343.305(3)(ar)2.

¶ 10 Padley voluntarily accompanied the deputy to the Sheriff's Department, where the deputy read to Padley the “Informing the Accused” form. Using this form, which incorporated language from Wis. Stat. § 343.305(3)(ar)2., the deputy advised Padley in pertinent part as follows:

[Y]ou 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, ...

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

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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.

....

In addition, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood. ⁴

At no point was Padley placed under arrest.

¶ 11 There is no dispute that Padley indicated to the deputy her consent to a blood draw after the deputy read the “Informing the Accused” form to her. However, the parties stipulated in the circuit court that, had the deputy “simply asked her to consent to” a blood draw without reading the “Informing the Accused” form to her, “she would have declined such a draw.”

¶ 12 Padley filed a motion to suppress the results of the blood test on the grounds that it was the product of a search that was unreasonable under the Fourth Amendment, and a separate motion to suppress on the grounds that Wis. Stat. § 343.305(3)(ar)2. is unconstitutional. In these motions, Padley argued that the blood draw constituted an unreasonable search because it was not based on probable cause to believe that the search would produce evidence of a crime and there were no exigent circumstances. As to Padley's consent, she first argued that she “did not give consent for the blood draw,” but subsequently argued that her consent was not “informed or voluntary.” Padley also argued that the deputy “had no reasonable basis to believe that [Padley] had violated any state or local traffic law,” and, thus, the search was not justified under § 343.305(3)(ar)2.

¶ 13 The circuit court denied Padley's motions, concluding that Wis. Stat. § 343.305(3)(ar)2. is constitutional and that Padley had voluntarily consented to the search. Regarding the alleged traffic law violation, the circuit court credited the facts as the deputy had testified to them. From these facts, the circuit court concluded that the deputy had “reason to believe” that Padley had violated Wis. Stat. § 346.33(1m) by attempting a U-turn that “interfer[ed] with other traffic,” namely, the progress of the motorcycle.

¶ 14 After the circuit court denied her motions, Padley pled guilty to charges of homicide by negligent operation of a vehicle and operating with a restricted controlled substance and causing injury. She now appeals the denial of her suppression motions.

STANDARDS OF REVIEW

¶ 15 We review a motion to suppress under a two step analysis.

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State v. Robinson, 2009 WI App 97, ¶ 9, 320 Wis.2d 689, 770 N.W.2d 721. We will uphold the circuit court's findings of historical fact unless those findings are clearly erroneous, but the application of constitutional principles to the facts found presents a question of law that we review de novo. Id. Evidence that is obtained pursuant to an unlawful search will be suppressed, subject to exceptions that the State does not argue are applicable here. See State v. Dearborn, 2010 WI 84, ¶¶ 15–16, 30–49, 327 Wis.2d 252, 786 N.W.2d 97.

¶ 16 The constitutionality of a statute presents a question of law that we review de novo. State v. Cole, 2003 WI 112, ¶ 10, 264 Wis.2d 520, 665 N.W.2d 328. We start with a presumption that a challenged statute is constitutional, and a challenger must prove that it is unconstitutional beyond a reasonable doubt. Id., ¶ 11. Thus, we are to “ ‘indulge[ ] every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality.’ ” Id. (quoted source omitted). Further, a facial challenge to the constitutionality of a statute cannot prevail unless that statute cannot be enforced “ ‘under any circumstances.’ ” State v. Wood, 2010 WI 17,...