Suppression of Evidence – Unreasonable Search – Blood Test

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John R. Anker

Case No.: 2020AP1218-CR

Officials: KLOPPENBURG, J.

Focus: Suppression of Evidence – Unreasonable Search – Blood Test

John Anker appeals his conviction of operating a motor vehicle while intoxicated (OWI) as a third offense. Anker argues that the circuit court erroneously denied his pretrial motion to suppress field sobriety testing and blood analysis evidence obtained after the investigating officer extended Anker’s routine traffic stop to administer the field sobriety tests, asserting that the extension of the stop was not supported by reasonable suspicion as required by the Fourth Amendment. Anker also argues that the circuit court erroneously denied his motion to preclude reference at trial to his refusal to submit to a warrantless blood draw, in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. In the alternative, Anker argues that the circuit court erroneously denied his motion to exclude evidence at trial of his refusal without having first conducted a refusal hearing.

I conclude that the officer’s extension of the traffic stop to administer field sobriety tests was supported by reasonable suspicion and that the circuit court properly denied Anker’s motion to suppress the field sobriety testing and blood analysis evidence obtained after the extension. I also conclude that Anker’s constitutional challenge to the denial of his motion to preclude reference at trial to Anker’s refusal is itself precluded by this court’s decision in State v. Levanduski, 2020 WI App 53, 393 Wis. 2d 674, 948 N.W.2d 411. Finally, because the State explains that it is clear beyond a reasonable doubt that a rational jury would have found Anker guilty absent any error in admitting evidence at trial of Anker’s refusal without having first conducted a refusal hearing based on the “comprehensive evidence” of Anker’s guilt and Anker fails to contest the issue on reply, I deem Anker to have conceded that any such error by the circuit court was harmless. Accordingly, I affirm.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.