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  • WisBar News
    August 10, 2016

    OWI Law: Appeals Court Allows Blood Test Evidence under Implied Consent Amendment

    Joe Forward

    Drunk driving

    Aug. 10, 2016 – The circuit court in Fond du Lac County granted a motion to suppress blood test evidence in an operating while intoxicated (OWI) case, concluding that police coerced the driver to provide the sample. Recently, a state appeals court reversed.

    In 2013, Adam Blackman made a left-hand turn in front an oncoming bicyclist, who collided with Blackman’s car and suffered serious injuries, including a mandibular fracture, fractures to both forearms, a rib fracture, sinus fracture, and a liver laceration.

    According to the record, the police officer who arrived on scene did not suspect Blackman of driving under the influence of alcohol or drugs, but determined that Blackman failed to yield as required and requested a blood sample under Wis. Stat section 343.305(3)(ar)2.

    That statute, amended in 2009, allows officers to request blood samples if an accident results in serious bodily injury and the officer has reason to believe a driver violated a traffic law. Previously, police needed probable cause to believe a driver was impaired.

    The officer, as was statutorily required, warned Blackman that if he refused the test, his driving privileges would be revoked and other penalties could apply.

    Blackman consented to the blood test, which revealed a blood alcohol concentration of 0.10 percent, which was over the legal limit of 0.08 percent.

    He was then charged with injury by intoxicated use of a vehicle and other related charges, including OWI and driving with a prohibited blood alcohol concentration.

    Blackman moved to suppress the blood test. He said he was coerced into taking it because the officer told him his driving license would be revoked if he didn’t, even though the officer lacked probable cause to believe Blackman was impaired.

    The circuit court granted the motion. But in State v. Blackman, 2015AP450-CR (Aug. 3, 2016), a three-judge panel for the District II Court of Appeals reversed, concluding Blackman was not coerced into giving the sample. He consented by choice.

    “Blackman was never compelled to give a blood sample, rather he was given a choice: submit a sample (actual consent) or refuse to provide a sample (withdraw his consent under the implied consent law) and suffer the consequences for doing so,” wrote Judge Paul Reilly. “As the choice was Blackman’s alone, there was no coercion.”

    Legislative Oversight, but No Coercion

    The panel noted that in 2009, the legislature amended the state’s implied consent law. Police no longer needed evidence of impairment to request a blood test.

    Under the law, police can request one if the officer has evidence that a driver violated a traffic law and was involved in an accident that caused death or great bodily harm.

    But, as the panel also noted, the legislature failed to amend the state’s refusal hearing statute, Wis. Stat. section 343.305(9)(a)5.a, when it amended the implied consent law.

    The issue at a refusal hearing, which a person may request within 10 days and determines whether a license should be revoked for refusing a blood, breath, or urine test, is limited to whether a police officer had probable cause to believe a person was driving under the influence before requesting a breath, blood, or urine sample.

    The court will also review whether the driver was lawfully placed under arrest for an OWI-related violation when the driver refused a blood, breath, or urine test.

    But, as the panel explained, the refusal hearing statute does not contemplate situations in which police do not have probable cause to believe a driver is impaired but believes the driver has committed a traffic violation and caused great bodily harm.

    Apparently, the legislature did not think to amend the refusal hearing statute to harmonize the statute with the amended implied consent statute.

    The circuit court, in granting Blackman’s motion to suppress, had noted that Blackman would have won a refusal hearing if he refused the test – because police did not have probable cause to believe he was impaired – and stating that his license would be revoked amounted to coercion. But the appeals court did not agree with that result.

    “We disagree with Blackman’s premise that his consent was coerced on the grounds that he would have won at a refusal hearing,” Judge Reilly wrote. “The fundamental fact is that under the implied consent law, Blackman, by driving on the highway, impliedly consented to submitting a sample of his blood under the facts presented.”

    The panel noted that a driver is not “compelled” to take a breath, blood, or urine test under the implied consent law. A driver can “withdraw” implied consent. Blackman, the panel noted, had the choice to refuse. But he may have faced license revocation.

    “The fact that Blackman could have prevailed at a refusal hearing due to the legislature’s failure to amend the refusal hearing statute does not transform Blackman’s freely given actual consent under Wisconsin’s implied consent law into a coerced submittal,” wrote Judge Reilly, concluding his actual consent was not coerced.


    Judge Brian Hagedorn agreed with the result but wrote separately to note that consent need only be voluntary and not based on the driver’s full understanding of rights.

    “Blackman raises a legitimate gripe about the State threatening a revocation that it would have difficulty defending if challenged,” Judge Hagedorn wrote. “Even so, Blackman agreed to provide a blood sample. He is not entitled under the law to a broad understanding of all of his rights before giving consent under the Fourth Amendment.”

    Hagedorn noted that deceitful warnings or threats could be coercive, but it was not coercion for the officer to inform Blackman that his license would be revoked if he refused testing, even though he may have had a basis to challenge the revocation.

    “And the fact that he likely would have been successful in such a challenge does not, in my view, amount to the kind of trickery or deceit or improper police conduct necessary to transform his voluntary consent into coerced consent,” Judge Hagedorn wrote.

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