01-1403 State v. Marshall

Listen to this article

This is so because even though the implied consent statute provides an incentive for voluntary chemical testing, i.e. not facing civil refusal procedures and automatic revocation, voluntary testing is not the exclusive means that blood, urine or breath samples may be constitutionally obtained.

Accordingly, because evidence of defendant’s blood alcohol concentration was properly obtained under State v. Gibson, 2001 WI App. 71, we conclude that defendant’s trial counsel was not ineffective for failing to object to its admission into evidence.

“Marshall claims that because the police explicitly threatened to physically strap him down, his situation is significantly distinguishable for Fourth Amendment purposes from the situation in Gibson, where the arresting officer only implicitly threatened the use of force. We disagree. Because law enforcement personnel may use reasonable force to withdraw blood from a noncompliant suspect, … they may necessarily inform a suspect that such a procedure is a possibility upon his or her refusal.”

Judgment and order affirmed.

Recommended for publication in the official reports.

CONCURRING OPINION: Fine, J. “I do not believe that State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, is wrong; indeed, the legislative command that a person suspected of drunk driving must take the blood-alcohol test sought by law enforcement would be hollow indeed unless there was a mechanism to administer the test on someone who did not cooperate. Absent such a mechanism, drunk drivers could, by the mere expedient of accepting the statutory consequences of a ‘refusal,’ avoid a test that provides irrefutable proof of whether they are drunk.”

CONCURRING OPINION: Schudson, J. “I write separately to suggest the supreme court’s consideration of two propositions: (1) that, until Gibson, our case law established that Marshall’s statutory argument was correct; and (2) that, under pre-Gibson principles, and as a matter of sound public policy and prudent police practice, Gibson (and, perforce, our decision in the instant case) should be overruled.”

Dist I, Milwaukee County, Konkol, J., Curley, J.

Attorneys:

For Appellant: Richard L. Zaffiro, Milwaukee

For Respondent: Robert D. Donohoo, Milwaukee; Kathleen M. Ptacek, Madison