Review of a published court of appeals opinion; case activity (including briefs); petition for review
Issues (from the petition):
I. Whether the circuit court properly suppressed Mr. Blackman’s warrantless blood test because he was unconstitutionally coerced into taking the test when he was read the informing the accused form which incorrectly told him that he faced a revocation and other penalties if he refused chemical testing, when he was actually only facing a possible arrest?
II. Whether the circuit court below properly suppressed Mr. Blackman’s blood test where Mr. Blackman was unconstitutionally coerced into taking the blood test, under the totality of the circumstances, when he acquiesced to the unlawful assertion by the officer that they take blood samples in cases like his—in addition to being told that he faced a revocation and other penalties if he refused?
III. Whether section 343.305(3)(ar)2 is unconstitutional on its face and as applied because it coerces consent to otherwise unconstitutional searches without due process of law?
As discussed in our post on the court of appeals decision in this case, as well as the one for State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, the informed consent statute was amended by 2009 Wis. Act 163 to expand the circumstances in which a police officer may request a chemical test. While the statute previously only applied to various sorts of OWI arrests, it now permits an officer to ask for a test where a traffic accident causes death or great bodily harm and there is reason to believe that the driver violated any traffic law. That is, an officer may now ask a driver for a chemical test even where there is no indication–not probable cause, not reasonable suspicion–that the person is intoxicated. A motorist’s refusal of the request, of course, generally comes with penalties including arrest and license revocation.
Padley held that a motorist’s consent given under these circumstances is valid under the Fourth Amendment. That case, however, left much unresolved, particularly the first question presented here. It turns out that the legislature did not amend the statute governing license revocation hearings correspondingly–so a motorist who refused a test not founded on probable cause for OWI would always win the hearing. Thus, the informing the accused form, which states that refusal will lead to revocation, is not telling the truth (or at least the whole truth) to such a motorist-if he or she contests the revocation, he or she will not be revoked. So one reasonable question to ask is whether a motorist who is threatened with a nonexistent penalty has really given voluntary consent to a warrantless search.
It gets stranger though. The statute itself is a bit of a mess, with some internal cross-references making it not entirely clear that an officer may even begin the administrative revocation process for a non-OWI arrestee. The court of appeals’ decision seems to assume that an officer may do so; Blackman’s contention to the contrary is another wrinkle in the first issue presented.
Blackman’s second issue brings in additional facts about his arrest to argue that even if the statutory scheme does not itself negate consent, his particular consent was coerced. The third is an invitation to the court to look beyond the facts of this case and declare the statutory scheme unconstitutional as to all non-OWI drivers.
Together with the grant in State v. Brar, this case shows that intoxication testing continues to raise thorny Fourth Amendment problems, even after SCOTUS’s recent statement on the matter.
