Opinion
No. 2014AP396–CR.
2014-08-28
STATE of Wisconsin, Plaintiff–Respondent, v. Victor J. GODARD, Defendant–Appellant.
County of Ozaukee v. Quelle, 198 Wis.2d 269, 280, 542 N.W.2d 196 (Ct.App.1995) (alteration in original); see also Washburn County v. Smith, 2008 WI 23, ¶¶ 56–57, 72, 308 Wis.2d 65, 746 N.W.2d 243 (applying the Quelle three-prong inquiry to fact situations in which the law enforcement officer “provided all the statutorily required information but then provided more information in excess of his duty under § 343.305(4)”).
Appeal from a judgment of the circuit court for Dodge County: Steven G. Bauer, Judge. Affirmed.
¶ 1 KLOPPENBURG, J.
This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2011–12). All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
Victor Godard appeals the judgment of conviction for operating a motor vehicle while intoxicated (OWI) as a third offense in violation of Wis. Stat. § 346.63(1)(a). Godard argues that the circuit court erred in denying his motion to suppress the results of his blood test because: (1) the arresting officer provided Godard with inaccurate and erroneous information, which caused Godard to refuse to submit to the implied consent blood test, and which thereby “denied [him] his right to a second test of his choosing;” and (2) the warrantless blood draw violated his constitutional rights. I conclude that the circuit court did not err in denying Godard's motion to suppress, because the officer did not provide inaccurate and erroneous information, and because the officer acted in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was obtained. Accordingly, I affirm the judgment.
¶ 14 Godard pled no contest to the charge of OWI as a third offense and brought this appeal.
DISCUSSION
¶ 15 In this appeal, Godard renews his argument that the evidence from the blood draw should be suppressed. Specifically, Godard argues that suppression is required because: (1) Micale denied Godard the statutory right to a second test of his choosing by providing Godard with misleading information that caused Godard to refuse to submit to the implied consent blood test; and (2) retroactive application of McNeely renders the warrantless seizure of Godard's blood a violation of his Fourth Amendment rights.
A. Standard of Review
¶ 16 This court analyzes the denial of a suppression motion under a two-part standard of review: we uphold the circuit court's findings of fact unless they are clearly erroneous, but we independently review whether those facts warrant suppression. State v. Conner, 2012 WI App 105, ¶ 15, 344 Wis.2d 233, 821 N.W.2d 267. Application of the implied consent statute to an undisputed set of facts, like any statutory construction, is a question of law that this court reviews de novo. State v. Reitter, 227 Wis.2d 213, 223, 595 N.W.2d 646 (1999). The ultimate question of “whether the facts as found by the [circuit] court meet the constitutional standard” is also reviewed de novo. State v. Hindsley, 2000 WI App 130, ¶ 22, 237 Wis.2d 358, 614 N.W.2d 48.
B. Statutory Right to Second Blood Test
¶ 17 Godard's first argument is that Micale provided him with erroneous and misleading information, causing him to refuse the primary implied consent blood test and thereby denying him the statutory right to a second test of his choosing. As explained below, Godard's argument fails because the record demonstrates that Micale did not provide him with erroneous and misleading information.
¶ 18 “Wisconsin's implied consent law is intended to facilitate the ability of police to secure evidence of intoxication or controlled substances by persuading drivers to consent to a requested chemical test by attaching a penalty for refusal to do so.” State v. Padley, 2014 WI App 65, ¶ 24, 354 Wis.2d 545, 849 N.W.2d 867. “[A]ll persons accept [their ‘implied consent’] as a condition of being licensed to drive a vehicle on Wisconsin public road ways.” Id., ¶ 26; Wis. Stat. § 343.305(2). When a law enforcement officer requires that a driver decide whether to give consent to a requested primary chemical test, such as a blood test, the driver may either choose or refuse to consent. Padley, 354 Wis.2d 545, ¶ 25–28, 849 N.W.2d 867. A driver who declines to comply with the implied consent law by refusing to consent to a requested blood test suffers the penalties specified in the implied consent law, which include automatic license revocation. Id., ¶¶ 27, 31; Wis. Stat. § 343.305(10). Such a driver also loses the opportunity to submit to a secondary chemical test of the driver's choosing. See Wis. Stat. § 343.305(5).
¶ 19 Wisconsin Stat. § 343.305(4) of the implied consent law requires that the arresting officer read to the driver the information contained in the “Informing the Accused” form so as to advise the driver of the nature of the driver's implied consent and his or her rights under the statute. Reitter, 227 Wis.2d at 225, 595 N.W.2d 646. Relevant to this case, the driver must be advised that if the driver submits to the requested primary chemical test, he or she “is permitted, upon his or her request, the alternative test provided by the agency ... or, at his or her expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test.” Wis. Stat. § 343.305(5). This statutory right to a secondary test vests when the driver consents to the primary chemical test. See, e.g., State v. Renard, 123 Wis.2d 458, 460, 367 N.W.2d 237 (Ct.App.1985) (police had duty to perform requested secondary test because defendant consented to primary blood test). Here, Godard did not consent to the primary blood test requested by Micale, and therefore Godard had no opportunity to arrange a secondary test of his choosing.
The “Informing the Accused” form specifically states, “If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.” Wis. Stat. § 343.305(4).
¶ 20 Godard's argument, that he was improperly denied his statutory right to a secondary test, turns on the adequacy of the information provided by Micale. To assess the adequacy of the information provided by a law enforcement officer under the implied consent law, we apply the following three-prong inquiry:
(1) Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4) and 343.305(4m) to provide information to the accused driver;
(2) Is the lack or oversupply of information misleading; and
(3) Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing?
County of Ozaukee v. Quelle, 198 Wis.2d 269, 280, 542 N.W.2d 196 (Ct.App.1995) (alteration in original); see also Washburn County v. Smith, 2008 WI 23, ¶¶ 56–57, 72, 308 Wis.2d 65, 746 N.W.2d 243 (applying the Quelle three-prong inquiry to fact situations in which the law enforcement officer “provided all the statutorily required information but then provided more information in excess of his duty under § 343.305(4)”).
¶ 21 As to the first prong, the transcript of the recorded arrest shows that Deputy Micale informed Godard of his right to a secondary test by reading him the “Informing the Accused” form verbatim. Micale also reiterated several times, in accordance with Wis. Stat. § 343.305(4), that if Godard wanted a secondary test of his choosing rather than the free intoxilyzer test offered by the State, then Godard would need to make those arrangements at a later time. Micale also told Godard that Micale would not transport Godard to an alternative hospital. The circuit court found that Micale exceeded his duty under § 343.305(4) by providing additional information, and the parties do not contest that finding. Accordingly, I accept the parties' concession that Micale exceeded his duty under § 343.305(4) by providing additional information to Godard.
Although the circuit court applied Quelle's three-prong inquiry in deciding whether to suppress Godard's refusal to submit to the primary test, the parties do not argue that the application of the three-prong inquiry to the same set of facts changes in the context of deciding whether to suppress the primary test results.
¶ 22 The second prong of the Quelle inquiry requires that this court “examine the specific facts and determine if this additional information was false or otherwise misleading.” Quelle, 198 Wis.2d at 282, 542 N.W.2d 196. Under this second prong, “ ‘misleading’ is synonymous with ‘erroneous.’ ” Smith, 308 Wis.2d 65, ¶ 68 n. 60, ¶ 56 n. 43, 746 N.W.2d 243. Upon review of the record, I agree with the circuit court's conclusion that the additional information provided by Deputy Micale was not false or misleading. Micale accurately informed Godard that he would not be transported to another hospital of his choosing. See State v. Vincent, 171 Wis.2d 124, 128, 490 N.W.2d 761 (Ct.App.1992) (“Nothing in the language of subsec. (2) of sec. 343.305, Stats., imposes a duty upon the agency to transport the accused to the site of the test facility chosen by the accused.”). Micale also accurately told Godard that he would have to make the arrangements for the secondary test of his choosing later. See Vincent, 171 Wis.2d 129 (holding that the agency must promptly process the accused to afford the accused a “reasonable opportunity” to obtain an alternative test within three hours except under certain circumstances when that is not possible).
¶ 23 Godard cites to two instances in the transcript of the arrest where, Godard argues, Micale provided him with false and misleading information by telling him that “the only second test he could have was the intoxilyzer.” However, Godard improperly focuses on two of Micale's statements in isolation and out of context in order to fit Godard's asserted subjective interpretation. See State v. Piddington, 2001 WI 24, ¶ 21, 241 Wis.2d 754, 623 N.W.2d 528 (“the determination of whether the law enforcement officer reasonably conveyed the implied consent warnings is based upon the objective conduct of that officer, rather than upon the comprehension of the accused driver”). It is clear from the entire arrest transcript that Micale repeatedly informed Godard that Godard had the right to a free secondary test by the agency, which was the intoxilyzer, and that if Godard did not want this to be his secondary test, he would have to make separate arrangements later. It would be unreasonable to require that a law enforcement officer state all of the parameters of the driver's right to additional tests (by the agency at no cost and/or at the driver's expense as separately arranged by the driver) each and every time where, as here, the officer stated all of those parameters many other times in the course of an extended conversation with the driver. In sum, Godard fails to show that Micale provided erroneous information as to Godard's rights under the implied consent law.
¶ 24 Because I conclude that Deputy Micale did not make any false or misleading statements to Godard, I do not need to examine the third prong. Under the Quelle inquiry, Godard has failed to demonstrate that the information provided to him was inadequate. Therefore, his argument, that he was denied his statutory right to a secondary blood test of his choosing because he refused the blood draw requested by Micale solely on account of incorrect information provided by Micale, fails.
C. McNeely and the Good Faith Exception
¶ 25 I now turn to Godard's second argument: the constitutionality of the warrantless blood draw in light of McNeely. Godard claims that McNeely renders the State's warrantless blood draw a violation of Godard's Fourth Amendment right against unlawful seizure. Godard argues that the only evidence of exigent circumstances in this case was the natural dissipation of alcohol from his blood stream, which the United States Supreme Court clarified in McNeely does not by itself constitute a per se exigency justifying a warrantless blood draw. See 133 S. Ct at 1568. Godard further argues that we should not apply the good faith exception articulated in State v. Dearborn, which held that “the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court.” 2010 WI 84, ¶ 51, 327 Wis.2d 252, 786 N.W.2d 97.
¶ 26 This court recently addressed this issue in State v. Reese, 2014 WI App 27, 353 Wis.2d 266, 844 N.W.2d 396. Similar to the facts in Reese, the warrantless blood draw in this case was performed before McNeely and after State v. Bohling, in which our supreme court, in its interpretation of the United States Supreme Court's opinion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), held that the natural dissipation of alcohol “constitutes a sufficient exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk driving related violation.” State v. Bohling, 173 Wis.2d 529, 539, 494 N.W.2d 399 (1993).
¶ 27 This court held in Reese that the Dearborn good faith exception applies when a warrantless blood draw was performed in reliance on Bohling, prior to McNeely. See Reese, 353 Wis.2d 266, ¶ 22, 844 N.W.2d 396. This court's decision in Reese is controlling. See Cook v. Cook, 208 Wis.2d 166, 185–190, 560 N.W.2d 246 (1997) (the court of appeals is bound by published decisions of the court of appeals). Consistent with Reese, I conclude that in this case, Deputy Micale was following clear and well-settled Wisconsin precedent at the time of the blood draw, and therefore, the good faith exception precludes suppression of the blood draw evidence.
In recognition that Reese is currently before the Wisconsin Supreme Court, Godard makes his argument here to preserve his rights pending action by that Court.
CONCLUSION
¶ 28 For the reasons set forth above, I reject Godard's arguments that the circuit court erred in denying his motion to suppress the blood test results, and, therefore, I affirm.
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)4.