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Does defense victory in Blackman case go far enough?

Dennis Melowski

Dennis Melowski

Whether we practice as litigators or transactional attorneys, we have all dealt with convoluted statutes and regulations which, at times, seem deliberately contorted to frustrate the legal practitioner, or perhaps, penned with the intent of making certain that we will always have work.

Which of these two the Legislature had in mind when it drafted 2009 Wis. Act 163 is not obvious. But, speaking as the attorney who represented the defendant in State v. Blackman, 2017 WI 77, I can state that we still have work to do.

Blackman involved a defendant who was involved in a motor-vehicle accident in which a bicyclist, who had turned in front of Blackman’s vehicle, was struck by Blackman and suffered great bodily harm.  Id. ¶ 11. When the investigating officer was cross examined by the author, he admitted that he had no suspicion whatsoever that Blackman was under the influence of an intoxicant.  Id. ¶¶ 15-16. Nevertheless, the officer, believing Blackman may have committed a traffic violation by failing to yield to the bicyclist, asked him to submit to a blood test pursuant to Wis. Stat. § 343.305(3)(ar)2..  Blackman, 77 WI ¶ 16. After being read the “Informing the Accused form,” Blackman consented to the test.  Id. ¶ 17.

In a somewhat splintered decision, Justice Abrahamson, writing an opinion for a majority of the court in which Justices Ziegler and Gableman concurred and from which Chief Justice Roggensack dissented, examined “whether the consequences for refusing to submit to a blood test requested under Wis. Stat. § 343.305(3)(ar)2. were misrepresented to Blackman and, if so, whether that misrepresentation rendered Blackman’s consent to the blood draw coerced, . . . ” in violation of the Fourth Amendment. Blackman, 77 WI ¶ 2. As part and parcel of this question, our firm also asked the court to examine the larger question of whether the statutory scheme itself was unconstitutional.  Id.

This latter question was presented to the court for its consideration because Act 163 added a provision to the Implied Consent Law which, in the words of Justice Abrahamson, permitted “an officer (to) request a blood draw without having a scintilla of suspicion that (a) driver is intoxicated. The officer need have reason to believe only that a driver violated a state or local traffic law and was in an accident that caused great bodily harm.”  Id. ¶ 34. This succinct, but very accurate description of Act 163, is what formed the main thrust of our argument on appeal: that it is unconstitutional under the Fourth Amendment and Article I, § 11 of the Wisconsin Constitution to permit law enforcement to request that a person submit to a blood test when there is no “clear indication”[1] that the person’s blood will contain any evidence of a crime. What made this circumstance especially repugnant to the right to be free from unreasonable searches and seizures is that, under the terms of Act 163, if a person refused to submit to a  requested test, he could then be arrested for the act of refusal.  Blackman, 77 WI ¶ 35.

In what could only be characterized as a most strained and twisted turn of logic, the state argued that once the person was arrested for refusing the test under § 343.305(3)(ar)2., he could subsequently be asked to submit to a test under § 343.305(3)(a)—the provision applicable to circumstances in which a person is suspected of operating while intoxicated—and if he again refused, be subject to license revocation. Remember, this is all occurring in the context of a circumstance in which the officer has not “a scintilla of suspicion that the driver is intoxicated.”  Blackman, 77 WI ¶ 34.

In aggressively advocating for Blackman, our firm’s hope that the court would take the constitutionality of § 343.305(3)(ar)2. head-on was ultimately dashed as the court chose to fall back on the rule of appellate review which precludes the examination of the larger constitutional issues if a case can be disposed of for lesser considerations.  Id. ¶ 2 n.3. Ultimately, the court found that the Informing the Accused form misrepresented the consequences of refusing a test under § 343.305(3)(ar)2. to Blackman because it stated that his license would be revoked and he would be subject to other penalties when, in fact, the only “penalty” for refusing was that Blackman would be subject to arrest.  Id. ¶ 61.  This rendered Blackman’s ultimate consent to testing involuntary under the Fourth Amendment.  Id. ¶ 83.

Seeking to avoid suppression of Blackman’s blood-test result, the state argued that the officer was acting “in good faith” by reading the Informing the Accused form to Blackman, and therefore, the good-faith exception to the Fourth Amendment’s exclusionary rule ought to be applied. The supreme court had no objection to rejecting this argument because it recognized that “(u)nless the evidence (was) suppressed, law enforcement officers across the state will continue to (fail to provide) correct information to . . . the accused  . . . ,” thereby rendering every subsequent consent given to testing under the same circumstances as Blackman’s unconstitutionally coerced.  Id. ¶ 73.

At the time of the publication of this article, Melowski & Associates is unaware of any remedial acts which have been introduced in the Legislature in response to the Blackman situation, but I am certain that one will soon come along. What remains to be seen, however, is whether it will truly be remedial or, alternatively, will only make an already byzantine statute more difficult to enforce.

While it is becoming increasingly rare for the defense bar to carve out victories on appeal, this one is particularly welcome because it provided the right remedy. Nevertheless, it has left the door open for future challenges to the constitutionality of § 343.305(3)(ar)2. as the court never reached that issue. What set of facts will provide the ripe circumstance for the court to finally take this question on remains to be scene. Melowski & Associates will continue to raise these, and other challenges, until they are found.

[1]See Schmerber v. California, 384 U.S. 757 (1966), and its progeny.

Dennis Melowski is an OWI defense attorney at Sheboygan-based Melowski & Associates.

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