Village of Butler v. Brandon J. Hernandez, 2023AP1707, 6/19/24, District II (one-judge appeal; ineligible for publication); case activity
Hernandez challenges the circuit court’s finding that he improperly refused to submit to a OWI blood draw, arguing that he consented. The court of appeals rejects his argument, concluding that the circuit court’s finding was not clearly erroneous.
An officer observed pulled Hernandez over after observing his vehicle driving under the speed limit in the middle of two lanes with the flashers on. The officer smelled the odor of intoxicants and noticed Hernandez’s slurred speech. After Hernandez admitted to drinking and failed field sobriety tests, the officer arrested him. In response to the officer reading him the “Informing the Accused” Form, Hernandez asked questions and “struggled with deciding how to ultimately respond[.]” (Op., ¶3). The officer read the form again, and Hernandez asked if he could delay in order to talk to a lawyer. When further pressed for a yes or no answer, Hernandez finally responded: “I guess, yes.” The officer told Hernandez that “guessing” was not an answer, and Hernandez “waffled again and continued to ask questions.” (Op., ¶3). The officer told Hernandez he was interpreting his actions as a refusal. Hernandez then repeated “I said yes” once the officer was filling out the refusal paperwork.
The standard of review is deferential:
The issue in this case is whether the circuit court correctly determined that Hernandez refused to consent to an evidentiary test. Whether Hernandez consented presents “a question of historical fact.” See State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d 430. Appellate courts “uphold a finding of consent in fact if it is not contrary to the great weight and clear preponderance of the evidence.” Id.; see also State v. Brar, 2017 WI 73, ¶13, 376 Wis. 2d 685, 898 N.W.2d 499 (“‘We will uphold a circuit court’s finding of historic fact unless it is clearly erroneous.’” (citation omitted)). In determining whether “consent was given in fact,” a court looks first to an accused’s “words, gestures, or conduct; and, second, [to] whether the consent given was voluntary.” Artic, 327 Wis. 2d 392, ¶30.
(Op., ¶7).
On appeal, Hernandez argues both that he consented through Wisconsin’s Implied Consent Law, Wis. Stat. § 343.305(2), and that he verbally consented. The court of appeals rejects both arguments for essentially the same reason—the circuit court found that Hernandez revoked his consent, and that finding was not clearly erroneous.
The court of appeals reasons, even in implied consent cases, it is necessary to “consider the totality of the circumstances” in determining whether “an individual’s previously-given consent continues to be voluntary[.]” See Brar, 376 Wis. 2d 685, ¶¶20-21, 25. (Op., ¶12). Implied consent is only the starting point, as the officer must read the Form, and the driver must either “reaffirm the previously given consent or revoke that consent by refusing[.]” (Op., ¶15).
Hernandez did not promptly take the test or refuse. His “yes” was equivocal and he repeatedly expressed confusion, struggling to make a decision. The court of appeals therefore concludes that it is clear Hernandez did not want to submit to the blood test and sufficiently communicated that to the officer. (Op., ¶16). In addition, confusion is not a defense in a refusal case. See County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by Washburn County v. Smith, 2008 WI 23, ¶56, 308 Wis. 2d 65, 746 N.W.2d 243. (Op., ¶17). Thus, the court of appeals holds that under the totality of the circumstances, it was reasonable for the circuit court to conclude that Hernandez refused to submit to an evidentiary test.
