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  • WisBar News
    July 28, 2017

    Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal

    Joe Forward

    Drunk driving

    July 28, 2017 – The state supreme court recently ruled (6-1) that a driver who hit a bicyclist did not give voluntary consent to a blood test because police misrepresented the consequences of refusing the test and thus obtained consent by coercion.

    The blood test results must be suppressed, the majority ruled in State v. Blackman, 2017 WI 77 (July 7, 2017). What’s interesting is that the deputy simply recited words required by state statute. The statute itself mispresents the law, the majority ruled.

    Chief Justice Patience Roggensack dissented. She said a good faith exception applied. Justice Annette Ziegler concurred, joined by Justice Michael Gableman.

    The Accident

    Adam Blackman was driving in the Town of Taycheedah when his car collided with a bicyclist, causing great bodily harm, including several fractures, a liver laceration, a lung contusion, and a subdural hemorrhaging brain bleed. A witness saw what happened.

    Blackman remained at the scene and checked on the bicyclist with the witness. A sheriff’s deputy arrived and soon suspected that Blackman had violated a state or local traffic law by failing to yield to the bicyclist. However, he did not have any reason to believe Blackman was driving under the influence of intoxicants. He showed no signs.

    The deputy explained that it was standard operating procedure for the police to obtain a blood test when drivers are involved in serious accidents. At the hospital, the deputy read the Informing the Accused Form, required by Wis. Stat. section 343.305(4), which says if a driver refuses a test, the driver’s operating privileges “will be revoked.”

    Blackman submitted a sample, revealing a blood alcohol concentration of 0.104, which is over the legal limit. At that point, Blackman was arrested and charged with operating while intoxicated (OWI), reckless driving causing great bodily harm, injury by intoxicated use of a vehicle, and injury by operation with a prohibited alcohol concentration.

    However, the circuit court granted Blackman’s motion to suppress the blood test, concluding the officer had misinformed Blackman about the consequences of taking the test, amounting to coerced consent that violated the Fourth Amendment.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Specifically, the court said the information recited from section 343.305(4) misstates the law by stating that refusing a blood test “will” lead to revocation of driving privileges, but that is not the case if police do not have probable cause to request the blood test.

    Thus, threatening a revocation to obtain consent amounts to coercion, the circuit court concluded. But a state appeals court reversed.

    Majority Reverses

    The supreme court majority said the appeals court got it wrong, and the information read to Blackman misrepresented his rights, leading to a coerced consent that was not voluntary in violation of the Fourth Amendment.

    The majority noted that the Informing the Accused Form misstates the law when a driver refuses a blood test upon request. Like the circuit court, the majority noted that revocation does not occur unless the state shows police had probable cause to believe the driver was under the influence of drugs or alcohol before requesting the test.

    In Blackman’s case, the deputy testified that Blackman showed no signs of impairment. Thus, the state could never win the probable cause argument at a refusal hearing, because that is a requirement before a license can be revoked for refusal. Thus it was inaccurate to tell him that his driving privileges “will be revoked” if he refused the test.

    The state claimed the legislature did not intend the probable cause requirement when police believed the driver violated a traffic law causing great bodily harm. The state argued, with legislative history, that the legislature made a drafting error.

    But the majority did not agree.

    “An alternative interpretation, however, which we adopt, based on the text of the statute, is that the legislature’s failure to amend Wis. Stat. § 343.305(9)(a) meant that it did not remove the OWI-related probable cause requirement from the refusal hearing,” Justice Shirley Abrahamson wrote.

    “The text of the statute clearly provides that when an officer requests a blood test pursuant to Wis. Stat. § 343.305(3)(ar)2., the State cannot prevail at the refusal hearing because probable cause is a prerequisite to revocation of an operating license.”

    Next, the majority concluded that obtaining the blood draw through this misrepresentation rendered Blackman’s consent coerced, not voluntarily or freely given as required by the Fourth Amendment when police have not obtained a warrant.

    “All things considered, Blackman’s consent to the blood draw was not voluntary and free, and was not an unconstrained choice, it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment,” Abrahamson wrote.

    No Good Faith Exception

    Finally, the majority rejected the state’s argument for a good faith exception to the exclusionary rule, asserting the deputy relied on the law in good faith when he read the Informing the Accused Form. But the majority said this exception cannot apply.

    “The good faith exception has generally been applied when a law enforcement officer has reasonably and objectively relied on settled law … that was subsequently overruled or a warrant that was subsequently invalidated,” Justice Abrahamson wrote.

    “The parties cite no case, and we have found none, applying the good faith exception to the exclusionary rule to a situation in which a law enforcement officer followed the requirements of a statute and gave an accused inaccurate information upon which the accused’s consent was based."


    Justice Ziegler concurred, joined by Justice Michael Gableman, joining the majority opinion “with a few exceptions and a few caveats.”

    Justice Ziegler noted that the deputy did not engage in the type of “misrepresentation” often associated with direct police coercion in investigations. The Informing the Consent Form contained the misrepresentation, and he simply read it verbatim.

    “The phrase ‘misrepresentation’ is used in the opinion but the use of that term should not be confused with a more typical scenario involving misrepresentations made by law enforcement,” she wrote.

    Ziegler also wrote “to clarify that the court’s opinion should not be read as inconsistent with my view of the constitutional theory behind Wisconsin’s implied consent law.”

    She also said it was improper to discuss any inferences that Blackman may have drawn from the deputy’s statements, and clarified her stance on the good faith exception.


    Chief Justice Roggensack dissented, concluding Blackman’s consent was not obtained by coercion, the majority misinterpreted statutes, and the good faith exception applied because the deputy acted with good faith that he was doing what the statutes required.

    “Wisconsin’s legislature repeatedly has enacted laws to lessen the carnage that drunk drivers inflict on those who use Wisconsin’s roads,” the chief justice wrote.

    “Today, the majority opinion overturns legislation that holds those who drive with a prohibited alcohol concentration responsible for the injuries they cause by violating a traffic law when their intoxication is not readily apparent."

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