State v. Randall

Decision Date02 July 2019
Docket NumberNo. 2017AP1518-CR,2017AP1518-CR
Citation930 N.W.2d 223,387 Wis.2d 744,2019 WI 80
Parties STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Jessica M. RANDALL, Defendant-Respondent.
CourtWisconsin Supreme Court

For the plaintiff-appellant-petitioner, there were briefs filed by Michael C. Sanders, assistant attorney general, with Brad D. Schimel, former attorney general, on the initial brief and Joshua L. Kaul, attorney general, on the reply brief. There was an oral argument by Michael C. Sanders.

For the defendant-respondent, there was a brief filed by Adam M. Welch and Tracey Wood & Associates, Madison. There was an oral argument by Adam M. Welch.


¶1 A police officer arrested Jessica M. Randall for operating a motor vehicle while under the influence of an intoxicant. Ms. Randall gave the officer permission to take a sample of her blood for the purpose of determining its alcohol concentration. But before the Wisconsin State Laboratory of Hygiene could test it, she sent a letter revoking the consent she had previously given. The letter also demanded the immediate return or destruction of her blood sample. This, she says, made the subsequent test of her blood sample a violation of her constitutional right to be free of unreasonable searches and seizures. We do not agree, and so we reverse the decision of the court of appeals.1


¶2 After arresting Ms. Randall for operating a motor vehicle while under the influence of an intoxicant, the police read her a document entitled "Informing the Accused" (the "Form").2 The Form, in pertinent part, asks: "Will you submit to an evidentiary chemical test of your blood?" Ms. Randall consented, and the officer marked the Form accordingly. An hour later, a medical professional withdrew a sample of her blood.

¶3 Two days later (and before her blood sample was tested), Ms. Randall (through her counsel) sent a letter to the Wisconsin State Laboratory of Hygiene (the "Laboratory") "revok[ing] any previous consent that she may have provided to the collection and analysis of her blood, assert[ing] her right to privacy in her blood, and demand[ing] that no analysis be run without a specific authorization ...." The letter further said Ms. Randall "does not consent to any person or entity retaining possession of her blood sample, and therefore demands that it be returned to her or destroyed immediately."

¶4 The Laboratory responded to Ms. Randall's letter with one of its own, in which it advised that it required authorization from the entity submitting the specimen (i.e., the Fitchburg Police Department) to release the requested sample. It did not, however, address the issue of consent. The Laboratory then proceeded to test the specimen, which revealed a blood-alcohol level of 0.210 grams of ethanol per 100 milliliters of her blood. It was unlawful for Ms. Randall to operate a motor vehicle with a blood-alcohol level of 0.08 or more.

¶5 The Dane County District Attorney's Office charged Ms. Randall with operating a motor vehicle while intoxicated (in violation of Wis. Stat § 346.63(1)(a) (2017-18)),3 and operating a motor vehicle with a prohibited alcohol concentration (in violation of § 346.63(1)(b) ), both as a third offense. Ms. Randall filed two motions to suppress the results of the blood test. In one, she argued that the consent she gave before the blood draw was not free, intelligent, unequivocal, and specific. The circuit court ruled against her, and she did not pursue that issue in the court of appeals or here. In the other motion, she argued that the blood test comprised an unlawful search under the Fourth Amendment because she had revoked her consent before the Laboratory conducted the test. The circuit court agreed, concluding that Ms. Randall's revocation of consent left the State with no constitutionally sufficient basis for discovering the amount of alcohol in her blood sample. The State appealed the circuit court's decision granting the motion to suppress.

¶6 Based on the rationale of State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, and State v. Wantland, 2014 WI 58, 355 Wis. 2d 135, 848 N.W.2d 810, the court of appeals affirmed, reasoning that the Laboratory unconstitutionally tested Ms. Randall's blood. State v. Randall, No. 2017AP1518-CR, ¶13, unpublished slip op. (Wis. Ct. App. June 14, 2018). We granted the State's petition for review, and now reverse the decision of the court of appeals and remand this cause to the circuit court for further proceedings consistent with this opinion.


¶7 Review of an order granting a motion to suppress evidence presents a question of constitutional fact. State v. Delap, 2018 WI 64, ¶26, 382 Wis. 2d 92, 913 N.W.2d 175 (quoting State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 ). In considering such questions, we uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Iverson, 2015 WI 101, ¶18, 365 Wis. 2d 302, 871 N.W.2d 661 (quoting Robinson, 327 Wis. 2d 302, ¶22, 786 N.W.2d 463 ). But we apply the relevant constitutional principles to those facts de novo. State v. Hogan, 2015 WI 76, ¶32, 364 Wis. 2d 167, 868 N.W.2d 124 (citing State v. Martwick, 2000 WI 5, ¶18, 231 Wis. 2d 801, 604 N.W.2d 552 ).


¶8 Ms. Randall asks us to declare that, when a suspect consents to a blood test for the purpose of determining the amount of alcohol it contains, she may prevent the State from obtaining that information by withdrawing her consent subsequent to the blood draw but before the laboratory conducts the test. The facts of the case, so far as they are relevant to this issue, are uncontested. Therefore, our analysis focuses on how the Fourth Amendment of the United States Constitution, and Article 1, § 11 of the Wisconsin Constitution, apply to them.

¶9 We begin where one must always begin in assessing constitutional claims—with the text of the documents. The Fourth Amendment guarantees the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Wisconsin Constitution uses almost identical language:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Wis. Const. art. 1, § 11. Because of the near equivalence of the language, we generally understand Article 1, § 11 of the Wisconsin Constitution to provide the same constitutional protections as the Fourth Amendment of the United States Constitution.

State v. Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598 ; see also State v. Dearborn, 2010 WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. Consequently, when we refer to the Fourth Amendment's requirements, we should be understood as referring to the requirements of Art. 1, § 11 of the Wisconsin Constitution as well.

¶10 The Fourth Amendment's reference point with respect to searches and seizures is reasonableness. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ("[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness[.] "). The general rule is that searches and seizures conducted without a warrant are not reasonable. Riley v. California, 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ("In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement."). One of the exceptions to the warrant rule is that an individual's consent to the search satisfies the constitutional "reasonableness" requirement. "It is well established that a search is reasonable when the subject consents ...." Birchfield v. North Dakota, ––– U.S. ––––, 136 S. Ct. 2160, 2185, 195 L.Ed.2d 560 (2016) ; Thompson v. State, 83 Wis. 2d 134, 139, 265 N.W.2d 467 (1978) ("Some of the exceptions [to the constitutional warrant requirement] are consent to search ...."); Wantland, 355 Wis. 2d 135, ¶20, 848 N.W.2d 810 (" ‘[A] search conducted pursuant to a valid consent is constitutionally permissible.’ ") (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ). If a search is premised on an individual's consent, it must cease immediately upon revocation of that consent. "One who consents to a search ‘may of course delimit as [she] chooses the scope of the search to which [she] consents.’ " State v. Matejka, 2001 WI 5, ¶37, 241 Wis. 2d 52, 621 N.W.2d 891 (quoting Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ).

¶11 The court of appeals and the parties each offer us a different paradigm within which to consider the application of these principles to the Laboratory's test of Ms. Randall's blood sample. For her part, Ms. Randall says her encounter with the police resulted in not one, but two discrete searches. The first occurred when a medical technician drew a sample of her blood. The second occurred when the Laboratory tested the sample to determine its alcohol concentration. She argues that both searches must respect the constitutional mandate that she be free of unreasonable searches and seizures. Ms. Randall acknowledges that her consent (as documented on the Form) made the blood draw unobjectionable. But she maintains that her withdrawal of consent made the second search—the Laboratory's analysis of her blood sample—unconstitutional.

¶12 The State's paradigm allows for only one search. It says the search started and ended with the medical technician's...

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