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BENCH BLOG: Implied consent case shows need to update refusal-hearing statute

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

Under the implied-consent law, is your consent to a blood test for alcohol “coerced” because it is a foregone conclusion that the threatened license revocation for refusing would be vacated at a refusal hearing?

The Court of Appeals recently took up this question.

Consent at an accident scene

Adam Blackman was driving in Fond du Lac County when he turned left in front of a bicycle, causing great bodily harm to the cyclist. The investigating officer found that Blackman had failed to yield to the oncoming cyclist.

The officer did not have probable cause to believe Blackman had been intoxicated. Without indicia of intoxication, an officer ordinarily cannot ask a driver to submit to a blood or breath test for the detection of alcohol or drugs.

But an amendment to the implied-consent statute — codified as sec. 343.305(3)(ar)2 — allows an officer to request a blood or breath sample based solely on a driver’s violation of a traffic law that results in an accident causing great bodily harm.

So even though the officer didn’t have probable cause to believe Blackman was intoxicated, he did have reason to believe that Blackman caused an accident by failing to yield to the cyclist and that the cyclist suffered great bodily harm.

Accordingly, he was permitted by this addition to the implied-consent statute to ask Blackman to submit to blood or breath testing for alcohol or drug detection.

The officer also informed Blackman that if he refused the testing, his license would be revoked. Blackman consented.

His blood-alcohol level was 0.10, which was above the legal limit of 0.08. The criminal charges against him therefore included causing injury by the intoxicated use of a vehicle and operating while under the influence.

Suppression motion

Blackman moved to suppress the results of the blood test, arguing that his consent was coerced. His premise was that he would have won at a refusal hearing, so the officer’s telling him his refusal would result in a license revocation amounted to coercion to obtain his consent.

Underlying this argument was the fact that when the legislature amended the implied-consent statute to add sec. 343.305(3)(ar)2, it did not make corresponding changes to another portion of the statute dealing with refusal hearings — sec. 343.305(9)(a)5.

Two of the issues that the state must prove at a refusal hearing are, first, that the officer had probable cause to believe the driver was under the influence, and second, that the driver was lawfully arrested for an OWI-related violation.

But in cases like Blackman’s, the state can never prove these two issues because the officer in question didn’t have probable cause to believe the driver was intoxicated and didn’t make an OWI arrest. Rather, the arrest and request for a blood or breath sample were based solely on the driver’s violation of a traffic law that caused an accident resulting in great bodily harm.

Blackman argued that, since the state can’t prove these two issues, the driver should prevail at the refusal hearing and the license revocation should be vacated.

Fond du Lac County Circuit Judge Gary Sharpe agreed and, citing the case of State v. Padley, granted the motion to suppress.

The state appealed.

Court of Appeals

In a decision written by District 2 Presiding Judge Paul Reilly, the court reversed Sharpe’s decision.

Going back to basics, Reilly emphasized that the implied-consent law is remedial and is to be “liberally construed to facilitate the taking of tests for intoxication so as to remove drunk drivers from our highways.”

Every driver has “impliedly consented to submitting a sample” of blood under the facts of this case. But that doesn’t mean a driver is compelled to submit to a chemical test.

When a driver does submit to testing, the implied consent becomes actual consent. When a driver refuses, the driver is withdrawing implied consent. “The choice is solely with the driver.”

The court disagreed with Blackman’s premise that his consent was coerced because he would have won at a refusal hearing.

When a driver refuses, his or her license is indeed revoked, even if the operating privilege is shortly reinstated at the conclusion of a refusal hearing.

“The fact that Blackman could have prevailed at a refusal hearing due to the Legislature’s failure to amend the refusal hearing statute does not transform Blackman’s freely given actual consent under Wisconsin’s implied consent law into a coerced submittal.”


Judge Brian Hagedorn concurred with the majority that Blackman’s consent was not coerced. He wrote to clarify that consent under the Fourth Amendment “need only be voluntary.” It need not be knowing and intelligent, based on a full understanding of one’s rights.

Hagedorn found two fundamental flaws in Blackman’s argument.

First, the Informing the Accused Form language read by the officer, while incomplete and imprecise, “is technically correct.” There is a “very real” threat of revocation of one’s operating privilege notwithstanding the longer-term outcome.

More importantly, involuntary consent rests on a finding of “actual coercive, improper police practices designed to overcome the resistance of a defendant.” Here, the officer simply read the form. There was no trickery, deceit or impropriety.

Hagedorn acknowledged he felt “sympathetic with Blackman’s claim,” and noted that “Blackman raised a legitimate gripe.”

“To be sure, the legislature’s warnings to citizens in Blackman’s situation needs another look.”


Some of the most ingenuous defense arguments come up in drunken-driving cases. This one arose from a legislative slip-up that occurred when one section of the implied-consent law was amended without fully considering the effects of that amendment on other sections of this detailed, lengthy statute.

The case suggests that the Legislature would do well to amend Sec. 343.305(9) to create appropriate refusal hearing criteria to apply in situations where, as here, an officer requests a blood or breath test based only on probable cause that the driver caused an accident resulting in great bodily harm — in the absence of any signs of intoxication.

This would bring sec. 343.305((3)(ar)2 and sec. 343.305(9) into statutory compatibility.

On another note, the District 2 Court of Appeals prides itself on issuing succinct opinions and the concurrence was just that. The majority opinion suffered from some redundancy and organizational flaws, making it hard to understand.

Nonetheless, the case updates implied-consent jurisprudence.

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