By: David E. Saperstein
I see three big “take-aways” from last month’s surprising decision by the Supreme Court of Wisconsin (SCOW) in State v. Blackman1. The assertion that probable cause still matters in the context of Wisconsin’s beleaguered Implied Consent Law is perhaps the biggest take-away. Coming in a close second, arguably a photo finish with probable cause, is the notion that the precise words spoken to a driver suspected of operating a motor vehicle while intoxicated (OWI) actually matter; because those words do, in fact, induce the driver to make important decisions regarding his or her constitutional rights. Finally, placing a respectable third in my take-away race, is what appears to be a revitalization of the exclusionary rule, and an important clarification of the limit to the good faith exception to that rule.
This article will discuss these three take-aways from Blackman, and will then muse about how this decision might affect the Implied Consent Law’s application going forward.
The facts underlying the Blackman decision are quite succinct. The defendant (“the driver”) struck a bicyclist, causing serious injury to the cyclist. Despite the absence of any signs that the driver was intoxicated,2 the investigating deputy (“the deputy”) requested a blood test from the driver, based upon his assertion that it was “standard operating procedure for the department, when drivers are involved in accidents of a serious nature, to obtain a blood sample.”3 Although he was not formally under arrest, the deputy transported the driver to the hospital. The deputy read the statutory language from the Informing the Accused form4 to the driver verbatim and then requested that the driver submit to a blood draw. The result of the blood draw was a .104 blood alcohol concentration.5 Consequently, the State charged the driver with multiple offenses; among them — OWI, injury by intoxicated use of a motor vehicle and injury by use of a vehicle with a prohibited alcohol concentration.6
The driver successfully moved the circuit court to suppress the blood draw evidence, arguing that his consent was obtained by misstatements about the consequences that would follow if he had not “consented” to the blood draw but had, instead, chosen to refuse to give blood. Because of those misstatements about refusal consequences his consent was not voluntary, but was instead coerced.7 The court of appeals reversed the circuit court order and the driver petitioned SCOW for review. In a majority opinion by Justice Shirley S. Abrahamson, SCOW reversed and remanded the decision of the court of appeals, thereby reinstating the circuit court order suppressing the evidence obtained from the blood draw.8
Although the facts are straightforward, the constitutional issues brought by the defense, and the Court’s analysis of those issues, takes us deep into the weeds of Implied Consent law. The rub is that the misstatements made to the driver which compelled his consent, including a threat that his driver’s license (“operating privilege”) would, unequivocally, be revoked if he refused to give blood, are inherent in the verbatim language of the Informing the Accused.9
The first problem the Court identified, with regard to these statutory admonitions, stems from the justification for the deputy’s request for blood in this particular case. Based upon the facts available to the deputy when he took the driver to the hospital, his justification for doing so would be found in Wis. Stats. § 343.305(3)(ar)2., which provides, in relevant part:
If a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine…. If a person refuses to take a test under this subdivision, he or she may be arrested…”10
So, the penalty for refusing to submit to a test under this section is not revocation of the operating privilege, but, rather, is arrest; and the deputy in Blackman did not arrest the driver before requesting blood and reading the Informing the Accused to him.11 Moreover, the language in the Informing the Accused does not make this distinction.
However, the Court found an even bigger, more dispositive, problem with the language of the Informing the Accused. That language is in conflict with, or at least fails to incorporate, language from the refusal statute, which requires there to be probable cause “to believe the person was driving or operating a motor vehicle while under the influence” before refusal penalties – including driver’s license revocation – may be imposed.12 By the officer’s own admission he did not have probable cause in this case, as he observed no signs of intoxication or impairment.13 Because there was no probable cause, the driver’s operating privilege in this case would not have been revoked; making the statement contained in the Informing the Accused and read to the driver, telling him that his license would be revoked if he refused to give blood, inaccurate and a misstatement of the law.14 That misstatement of the law, according to the Court, compelled the driver to consent to a blood test, which made his consent involuntary and coerced.15
The Court then turned to the question of whether exclusion of evidence derived from the driver’s coerced, and thereby, unconstitutional16 blood draw should be the remedy in this case. The Court started with the premise that exclusion is ordinarily required when evidence is seized unlawfully; the purpose behind the exclusionary rule being to “deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”17 In this case, the inaccurate information in the Informing the Accused, and its conflict with the refusal provisions, create the potential of a “recurring or systemic error.”18
Even so, surely the deputy’s “good faith” reliance on the implied consent statute — as embodied in the Informing the Accused — would thwart application of the exclusionary rule in this case.19 Like a “Hail Rogers” pass thrown by the State – stealing a State victory from the jaws of defeat –isn’t this what we have grown to expect?20 Not this time, sayeth the Court.
This is a systemic and recurring error that will not be corrected unless the exclusion of unlawfully seized evidence is the remedy. In other words, even though the officer did what he was supposed to do in reading the form verbatim to the driver prior to requesting blood in this case, the inaccuracies in the form, and their coercive effect, will continue to systemically violate all accused drivers’ constitutional rights.21 Exclusion of evidence, in such a case, is a wake-up call to law enforcement and the legislature that they need to address these inaccuracies.
Revisiting my three big take-aways from this case, we can now say that:
- The Informing the Accused’s unequivocal statement that a driver’s operating privilege will be revoked if he refuses to submit to a test of his blood, is a misstatement of the law – because, if there is no probable cause to believe that a driver is operating under the influence of an intoxicant, then revocation will not follow;
- That misstatement of the law, threatening the unequivocal consequence of revocation, is sufficiently coercive to render involuntary a driver’s consent to give blood; and,
- An officer’s good faith reliance on the exact language in the Informing the Accused does not thwart application of the exclusionary rule to exclude from trial the unlawfully seized blood, because such an error is systemic and recurring and will affect other similarly situated accused drivers.
So where does this leave Implied Consent Law, and the Informing the Accused going forward? Well, certainly one could argue that the facts of this case – a serious accident caused by a driver who shows no signs of intoxication but has a blood alcohol concentration above .08 – limit the damage to the law. Even so, the inaccuracies in the Informing the Accused will surely lead to similar constitutional challenges arising from other fact patterns. For instance, what if an officer requests breath instead of blood, and still threatens certain revocation for refusing to comply? Would the analysis change if it is a breath test being requested, given the heightened level of privacy recent cases22 have given to the blood in our veins –protected as it is by layers of skin and muscle — versus the breath we emit necessarily through normal respiration? Perhaps, but the distinction is not explicitly made in Blackman.
Or, what about the unconscious driver scenario – in which the accused driver does not consent at all because he is unconscious from injuries related to an accident? The very same statute that the deputy relied upon in Blackman to justify his request for blood23 has another clause that states, “…A person who is unconscious or otherwise not capable of withdrawing [implied] consent is presumed not to have withdrawn consent….” This means that an unconscious person who otherwise shows no signs of intoxication would be deemed to have consented to a blood draw by virtue of being unconscious. Does this square with the Blackman decision?24 Should it matter that the driver is unable to consent at all? The Informing the Accused that an officer is required to read, prior to ordering a blood test, is just as inaccurate when read to an unconscious driver showing no signs of intoxication as it is when read to a conscious driver showing no signs of intoxication. Shouldn’t an officer faced with this situation be required to seek a search warrant – and be required to justify the intrusion of a blood draw without probable cause – rather than get a free pass by statutory fiat? Perhaps future decision will answer these questions. Until then, Blackman opens the door for suppression of blood under these and similar facts.
 2017 WI 77 (filed July 7, 2017).
 2017 WI 77 at ¶15.
 Id. at ¶16.
 The language on the form is set out verbatim in Wis. Stat. § 343.305(4).
 Id. at ¶17.
 Id. at ¶18.
 Id. at ¶19.
 Id. at ¶1.
 Wis. Stat. § 343.305(4) and the Informing the Accused state, in relevant part, “If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties.” (emphasis added).
 Wis. Stats. § 343.305(3)(ar)2. (emphasis added in text of SCOW decision); 2017 WI 77 at ¶30.
 2017 WI 77 at ¶¶16 & 32.
 According to statutory provisions governing refusals, the driver who refuses a test must request a refusal hearing within 10 days. If he does so, one of the issues at the subsequent refusal hearing — to determine whether the driver “improperly” refused (and should, therefore, be penalized) — is whether the officer had probable cause to believe the driver was operating under the influence in the first place. See Wis. Stats. §§ 343.305(9)(a)(4), 343.305(9)(a)(5) & 343.305(10)(a); 2017 WI 77 at ¶¶ 42 & 43.
 Id. at ¶15.
 Id. at ¶¶50 & 51.
 Id. at ¶63. Further, if the driver had refused the blood draw instead of providing coerced consent, not only would his license not have been revoked but the deputy would have had to obtain a search warrant for the driver’s blood. Id. at ¶4, (citing Birchfield v. North Dakota, 136 S.Ct. 2160, 2173 (2016)).
 Fourth Amendment, U.S. Constitution; Art. I, § 11, Wisconsin Constitution; Birchfield v. North Dakota, 136 S.Ct. 2160 (2016); Schmerber v. California, 384 U.S. 757 (1966).
 2017 WI 77 at ¶68, (quoting State v. Dearborn, 2010 WI 84, ¶36, 327 Wis.2d 252, 786 N.W.2d 97; and citing Herring v. United States, 555 U.S. 135, 150-151 (2009).
 2017 WI 77 at ¶73.
 Id. at ¶ 69.
 Id. at ¶70 (citations omitted).
 Id. at ¶¶73-75.
 See Missouri v. McNeely, 133 S.Ct. 1552 (2013) and Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
 Wis. Stats. § 343.305(3)(ar)2.
 Earlier this year, prior to the Blackman decision, SCOW dealt with this fact pattern in State v. Howe, 2017 WI 18 (opinion filed March 1, 2017). However, the precise issue regarding the constitutionality of the implied consent statute in this context was not definitively decided. In a dissatisfying plurality opinion, only two justices (Gableman and Ziegler) justified the search by holding that the implied consent law is constitutional.