State v. Justin Dennis Krizan, 2022AP1341-CR, 3/4/25, District III (1-judge decision, ineligible for publication), case activity
Applying its recent holding in State v. Gore, 2025 WI App 11, ___ Wis. 2d ___, ___ N.W.3d ___ (see our post on Gore here), the COA concludes that Krizan’s consent to a blood draw was voluntary because he was not misinformed about the consequences of refusing to consent.
A St. Croix County sheriff’s deputy was dispatched to a two-vehicle head-on collision on a two-lane highway. When he arrived at the scene, the deputy observed Krizan “halfway seated or laying inside” his vehicle complaining of shortness of breath, an inability to hear, and “bleeding from multiple areas of his body, including his head.” Henriksen “detected a strong odor of intoxicant” coming from Krizan and later found an open can. Krizan was subsequently transported by helicopter to a hospital in Minnesota, and therefore was not arrested at the scene. (¶¶2-3).
The first deputy, Henriksen, told another deputy, VanSomeren, that there was probable cause to arrest Krizan for OWI and asked him to obtain a blood sample at the hospital. VanSomeren spoke to Krizan, informed him that he “had been placed under arrest for an OWI,” read him the Informing the Accused form, and requested that Krizan consent to providing a blood sample. VanSomeren “made sure” that Krizan was aware that he was being charged with OWI, but wasn’t sure if he actually arrested Krizan. Krizan consented to the blood draw and was later charged with OWI and PAC, both as a 2nd offense. (¶¶4-5).
After a suppression hearing and briefing, the circuit court found that Krizan had not been arrested at the time of his consent. However, the court concluded that the deputy requested a sample pursuant to Wis. Stat. § 343.305(3)(ar)1., that Krizan’s consent was voluntary because there was no evidence that he relied on the inaccurate statement (VanSomeren telling him he was under arrest at the hospital), and that his injury did not invalidate his consent. (¶¶6-8). In response to Krizan’s pro se motion for reconsideration, the court concluded that State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, did not apply.
On appeal, Krizan argues that VanSomeren provided false information when reading the Informing the Accused form and that this false information rendered his consent to the blood draw involuntary. Specifically, that VanSomeren mistakenly informed him that his license would be revoked if he refused to provide a blood sample. COA summarizes Blackman, in which our supreme court ruled that the language in the Informing the Accused form contained a misrepresentation of the implied consent law:
Specifically, the form stated that “if a driver refuses to take any test under § 343.305(3)(ar)2., the driver’s ‘operating privilege will be revoked’ and the driver ‘will be subject to other penalties,’” whereas the statute stated only that “if a driver refuses to take any test under § 343.305(3)(ar)2., the driver may be arrested.” Blackman, 377 Wis. 2d 339, ¶38. . . .
[However,] a driver who is not suspected of a drunk-driving offense could refuse to submit to a blood test under WIS. STAT. § 343.305(3)(ar)2., could request a refusal hearing under § 343.305(9)(a)5.a., would prevail at the refusal hearing and not have his or her operating privilege revoked.
(¶15).
COA instead applies its recent holding in Gore, which was “materially distinguishable from Blackman.” There, the COA concluded that “Blackman is limited to situations in which an officer read a driver the Informing the Accused form under WIS. STAT. § 343.305(4) but did not suspect the driver of being under the influence of alcohol.” COA therefore again concludes that where an officer had probable cause to believe that the defendant operated his or her vehicle under the influence of alcohol and requests a blood sample under a subsection of § 343.305 other than (4), consent is voluntary.
Here, VanSomeren asked Krizan to submit to a blood draw under § 343.305(3)(ar)1., which provides, in pertinent part:
If a person is the operator of a vehicle that is involved in an accident that causes substantial bodily harm, as defined in 939.22(38), to any person, and a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the law enforcement officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2)…. If a person refuses to take a test under this subdivision, he or she may be arrested under par. (a).
COA distinguishes Blackman on the basis that § 343.305(3)(ar)1. “does apply to a drunk-driving offense, as it requires law enforcement to detect the presence of alcohol.” (¶21). It also concludes, citing § 343.305(10) and Gore, 2025 WI App 11, ¶29, that unlike in Blackman, Krizan would have had his driving privileges revoked if he refused to submit to a blood test, and holds that his consent was therefore not rendered invalid.
