Voluntary Consent-Totality-of-the-Circumstances Test

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WI Court of Appeals – District III

Case Name: City of Antigo v. John Paul Fermanich

Case No.: 2023AP001834

Officials: Hruz, J.

Focus: Voluntary Consent-Totality-of-the-Circumstances Test

The City of Antigo appealed a circuit court order suppressing blood-test evidence obtained from Fermanich following his arrest for operating while intoxicated (OWI). After observing signs of intoxication and obtaining a preliminary breath test showing a blood-alcohol concentration of 0.159, Officer Levi Barske arrested Fermanich. Before reading the Informing the Accused Form, Barske told Fermanich that he would not be taken to jail, but that the officer would take him to the hospital for a blood draw and then release him. Fermanich later consented to the blood draw, which revealed an unlawful blood-alcohol level.

Fermanich moved to suppress the blood-test results, arguing that his consent was coerced. The circuit court agreed, finding that the officer’s statements suggested that Fermanich had no choice but to submit to the blood draw if he wished to be released from custody.

The Court of Appeals applied the totality-of-the-circumstances test, and found that the City failed to prove by clear and convincing evidence that Fermanich’s consent was freely and voluntarily given. The court concluded that the officer’s statements implied both that the blood draw was inevitable and that release from custody was conditioned on submitting to the test. Although the officer later read the statutory warnings, the City did not establish that those warnings eliminated the coercive effect of the earlier statements. Because Fermanich’s consent resulted from express or implied coercion concerning his continued detention, the blood draw constituted an unlawful warrantless search.

Affirmed.

Decided 06/16/26

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