State v. Christopher A. Gore, 2023AP169-CR, 1/7/25, District III (recommended for publication), case activity
The Court of Appeals held, in a decision recommended for publication, that Christopher Gore’s consent to a blood draw was voluntary because he was not misinformed about the consequences of refusing to consent, and the officer’s statement that he would seek to obtain a warrant if Gore did not consent did not invalidate his consent.
Minocqua police were dispatched to a one-car rollover crash at 9 p.m. in July 2020. When Officer Gaszak arrived at the scene, he observed a vehicle upside down in a supper club parking lot and EMTs extracting a person later identified as Christopher Gore from the vehicle. Another person riding with Gore was ejected from the vehicle and declared dead at the scene. The EMTs told the officer that Gore admitted to drinking alcohol and they thought Gore drove the vehicle because his feet were tangled in the steering wheel. The officer spoke to Gore, who said he was golfing and meeting a friend at the restaurant where the crash occurred. The officer testified that he smelled alcohol on Gore. Regarding the road conditions, the officer said the weather was clear, the roads were dry, and it was still light out. Gore was transported to a hospital. (¶¶ 6-7).
Officer Gaszak described the incident to Lieutenant Benbenek, including that Gore admitted to consuming alcohol, had not eaten that day, and smelled of alcohol. The lieutenant went to the hospital to obtain a blood sample from Gore and learned from an EMT that he believed Gore drove the vehicle. Lieutenant Benbenek read to Gore from a standard Informing the Accused form, including that: “If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties.” (¶ 11). Gore initially consented to a blood draw, but then asked the lieutenant what would happen if he refused. The lieutenant told him that he “would contact a judge and look to get a warrant.” (¶ 12). Gore consented and the blood draw showed Gore’s blood alcohol content was .239. Lieutenant Benbenek testified that Gore was not under arrest when he read the Informing the Accused form to him, but he believed there was probable cause that Gore was operating while intoxicated and caused the death of another person. (¶ 13).
Gore filed a motion to suppress the blood draw results, arguing that his consent was involuntary because he was not under arrest when he was read the Informing the Accused form and therefore it was uncertain whether his operating privilege would be revoked if he refused to consent. Gore also argued his consent was not voluntary because the officer threatened to seek a warrant if he did not consent. The circuit court assumed without deciding that Gore’s consent was not voluntary, but concluded the evidence should not be suppressed under the inevitable discovery doctrine. (¶ 14). Gore pled no contest to one count of homicide by use of a vehicle with a prohibited alcohol concentration.
Gore raised the same issues on appeal that he raised in the circuit court. The Court reviewed Wisconsin’s implied consent statutes, which bear some resemblance to the Internal Revenue Code in their complexity. Under Wis. Stat. § 343.305(2), any person who drives or operates a motor vehicle in Wisconsin “is deemed to have given consent to one or more tests of his or her blood” to determine the presence of alcohol “when requested to do so by a law enforcement officer under sub(3)(a) . . . or when required to do so under sub. (3)(ar).” Subsection (3)(a) applies if a person is arrested for an OWI-related offense or upon arrest subsequent to a refusal.
Subsection (3)(ar)2. applies if “a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law.” Note that sub. (3)(ar)2. applies regardless of whether the person is suspected of driving under the influence. If a person refuses to take a test under subsection (3)(ar)2., the person may be arrested under par. (3)(a) for refusal.
When an officer requests consent for a blood draw, the officer must read the Informing the Accused form to the driver stating that if the driver refuses to consent, the driver’s “operating privilege will be revoked.” Wis. Stat. § 343.305(4). But before license revocation occurs, the person has the right to a refusal hearing, where the State must prove that the officer had probable cause to believe the driver was operating under the influence, the officer complied with reading the Informing the Accused form, and the driver refused to permit the blood test. Wis. Stat. § 343.305(9)(a)5.
SCOW explained in Blackman that Wis. Stat. § 343.305(3)(ar)2. differs from the Informing the Accused form because the form states that if a driver refuses a test under sub. (3)(ar)2., the driver’s operating privilege will be revoked. However, the statute states that if a driver refuses to take a test when required under sub. (3)(ar)2., the driver may only be arrested. Id. Blackman held that a driver whom police requested to submit to a blood draw under sub. (3)(ar)2., but for whom police did not have probable cause was operating under the influence, was incorrectly informed that his operating privilege would be revoked if he refused to submit to a blood draw. The court therefore found Blackman’s consent to the blood draw involuntary. (Id.).
Here, the Court concluded that Lieutenant Benbenek had authority to request a blood draw under § 343.305(3)(ar)2. because Gore was involved in an accident that caused the death of a person and police believed Gore violated a state law by committing homicide by intoxicated use of a vehicle. (¶ 27). And the Court determined that where the officer has probable cause to believe that the driver was operating under the influence, “his or her statement to a driver that the driver’s operating privilege will be revoked if he or she refuses a test under § 343.305(3)(ar)2. is accurate.” (¶ 29).
The Court reasoned as follows: “While § 343.305(3)(ar)2. does not provide that if the driver refuses to take a test, the driver’s operating privilege will be revoked, that statute permits an officer to arrest the driver under § 343.305(3)(a) if the driver refuses a test. If a driver refuses a test under § 343.305(3)(ar)2., is arrested under § 343.305(3)(a), and requests a refusal hearing, the State must prove that the officer had probable cause to believe that the driver was driving or operating a motor vehicle under the influence.’” (¶ 29, internal quotations omitted). The Court considered Blackman “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.” (¶ 29).
The Court held that police had probable cause to arrest Gore for OWI because: 1) police and EMTs reasonably believed he drove the vehicle; 2) the accident occurred on a straight road in good weather at 9 p.m.; 3) he smelled of alcohol; and 4) he told police that he consumed alcohol, but did not eat that day. (¶¶ 39-41).
The Court also found that Gore’s consent was valid despite the lieutenant saying he would attempt to obtain a warrant if he did not consent: “Benbenek did not state that he would definitively obtain a warrant if Gore did not consent. Rather, Benbenek stated that he would seek to obtain a warrant. Such a statement does not invalidate consent, particularly where the ‘expressed intention to obtain a warrant is genuine.’” (¶ 35, quoting Artic).
