The United States Supreme Court issued its decision in Birchfield v. North Dakota, 579 U.S. ___, 2016 U.S. LEXIS 4058 (June 23, 2016) only weeks ago. More information on the Birchfield decision is available here. In the brief time since Birchfield was decided, the Wisconsin Court of Appeals has already issued multiple opinions interpreting Wisconsin’s Implied Consent Law in light of Birchfield. State v. Blackman, No. 2015AP450-CR (Aug. 3, 2016) and State v. Dalton, No. 2016AP6-CR (July 20, 2016), both decided by the District II Court of Appeals, highlight the various implications Birchfield may (or may not) have on OWI prosecutions.
In Dalton, the defendant was involved in a one-car crash. He was charged with a second offense OWI and second offense operating with a prohibited alcohol concentration after a warrantless blood draw showed a blood alcohol concentration of .238 – almost three times the legal limit. Dalton’s attorney did not file a motion to suppress the evidence based on the warrantless blood draw, and Dalton pled no contest to the OWI charge. Under Wisconsin law, a second offense OWI is a criminal misdemeanor. At sentencing, the trial court judge imposed a more severe penalty against Dalton due to Dalton’s refusal to voluntarily submit to the blood draw. After finding Dalton was not entitled to a Machner evidentiary hearing, the court denied Dalton’s postconviction motion to withdraw his plea due to ineffective assistance of counsel, or to be resentenced.
The court of appeals reversed. Citing Missouri v. McNeely, 133 S.Ct. 1552 (2013), the court noted that the warrantless blood draw would be invalid, unless there were exigent circumstances. However, Dalton’s trial counsel failed to file a motion to suppress, and the issue was not decided. The court found that neither Dalton’s postconviction motion nor the facts in the record clearly established exigent circumstances. Instead, Dalton’s postconviction motion alleged sufficient facts from which a court could conclude that Dalton’s trial counsel provided ineffective assistance by failing to file a motion to suppress, that had such a motion been filed the motion may have been successful and Dalton would not have pled guilty, but instead, would have gone to trial. Therefore, Dalton was entitled to a hearing where he would bear the burden of proof in showing his trial counsel performed deficiently in failing to file a suppression motion, and that he was prejudiced as a result. Addressing Dalton’s alternative request for resentencing, the court instructed that on remand the court should also consider Dalton’s sentencing claims in light of Birchfield, which prohibits the imposition of criminal penalties for refusal to submit to blood testing.
Like Dalton, Blackman arose from a crash. However, unlike Dalton, Blackman agreed to submit to a blood test after being involved in an accident where he hit a bicyclist with his vehicle. After the accident, the officer correctly advised Blackman that if he withdrew his consent to blood testing, his license would be revoked. Blackman provided the sample, and the blood alcohol concentration was .10. The trial court granted Blackman’s motion to suppress the blood sample on the grounds that his consent was coerced.
The court of appeals reversed. It first noted that this case implicated a specific portion of the Implied Consent Law, Wis. Stat. § 343.305(3)(ar)2., which allows for the taking of a blood, breath or urine sample from any driver involved in an accident that results in great bodily harm, regardless of whether there is evidence of impairment from drugs or alcohol. If a defendant refuses the blood test, his or her license will be statutorily revoked; however, a defendant may request a refusal hearing. The court then noted the fact that impairment evidence is not required under Wis. Stat. § 343.305(3)(ar)2. is seemingly contrary to the refusal hearing statute, which strictly limits the issues at a refusal hearing to (1) whether the officer had probable cause to believe the driver was under the influence of alcohol or a controlled substance and (2) whether the driver was lawfully arrested for an OWI-related violation. As a result of this apparent disconnect, a driver such as Blackman could refuse a blood test requested under § 343.305(3)(ar)2. and have his license statutorily suspended, but was likely to succeed in having the revocation reversed at a refusal hearing. Nonetheless, citing its decision in State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, the court found that Blackman’s consent was not coerced. Blackman chose to provide a sample of his blood, and the fact that he may have prevailed at a refusal hearing did not negate his freely given consent. In a footnote, the court noted the Birchfield decision, but found it inapplicable in this case as the Wisconsin Implied Consent Law does not provide for criminal penalties for refusal.
The Dalton and Blackman cases harmoniously apply Birchfield, differentiating between those case implicating criminal penalties (Dalton) and those resulting in only civil penalties (Blackman). As additional cases are decided in Wisconsin with Birchfield in mind, its full effect will no doubt be clarified. Further, as suggested by Blackman, there may also be need for legislative changes to better refine Wisconsin’s Implied Consent Law.