State v. Anthony J. Madland

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP146-CR Cir. Ct. No. 2016CT183

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY J. MADLAND,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dunn County:
JAMES M. PETERSON, Judge. Affirmed.

¶1 SEIDL, J.1 Anthony Madland appeals a judgment of conviction,
entered upon his no-contest plea, to third-offense operating a motor vehicle with a
prohibited alcohol concentration (PAC). He asserts the circuit court erred by
denying his motion to suppress evidence of the result of a chemical blood test that

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP146-CR

he submitted to after his arrest for suspected operating a motor vehicle while
intoxicated (OWI). Madland argues that the law enforcement officer who stopped
him failed to comply with the officer’s duties under Wisconsin’s implied consent
statute, WIS. STAT. § 343.305(2). We reject Madland’s arguments and affirm.

BACKGROUND

¶2 The following facts are undisputed. On an early Sunday morning in
July 2016, Dunn County Deputy Sheriff Emmer Shields stopped Madland for
speeding. After Shields conducted the traffic stop, he arrested Madland for OWI.

¶3 After Madland’s arrest and while he was in the squad car, Shields read
to him the statutorily prescribed “Informing the Accused” form verbatim.2 Shields

2
As required by WIS. STAT. § 343.305(4), the informing the accused form that Shields
read was stated as follows:

You have either been arrested for an offense that involves driving
or operating a motor vehicle while under the influence of alcohol
or drugs, or both, or you are the operator of a vehicle that was
involved in an accident that caused the death of, great bodily harm
to, or substantial bodily harm to a person, or you are suspected of
driving or being on duty time with respect to a commercial motor
vehicle after consuming an intoxicating beverage.

This law enforcement agency now wants to test one or more
samples of your breath, blood or urine to determine the
concentration of alcohol or drugs in your system. If any test shows
more alcohol in your system than the law permits while driving,
your operating privilege will be suspended. 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. The test results
or the fact that you refused testing can be used against you in court.

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No. 2019AP146-CR

then asked Madland if he would submit to a chemical blood test. Madland
responded that he wanted a test of his own. Shields explained that the sheriff’s
department only administered a blood test, but Madland could request another test
after the blood test. Madland then asked how long his processing at the jail would
take. Another officer on the scene responded by explaining to Madland the process
for obtaining a search warrant if Madland refused to consent to a blood test.

¶4 Madland then inquired if there was a way to avoid having a “needle
stuck in his arm.” Shields responded that a blood test was the “only test” the
sheriff’s department provided. Shields further explained that Madland could request
a “different test as … explained on that form, but the test that we do is blood.”
Eventually, Shields determined that Madland refused to consent to a blood test
because he would not give Shields “a yes-or-no answer.” Shields then transported
Madland to a hospital and began the process for obtaining a search warrant.

¶5 At the hospital, Shields again read to Madland the informing the
accused form. This time, Madland consented to a blood test. After the blood test,
Shields asked Madland if he wanted to take another chemical test. Madland replied,

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.

If you have a commercial driver license or were operating a
commercial motor vehicle, other consequences may result from
positive test results or from refusing testing, such as being placed
out of service or disqualified.

In addition, your operating privileges will also be suspended if a
detectable amount of a restricted controlled substance is in your
blood.

Will you submit to an evidentiary chemical test of your BLOOD?

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No. 2019AP146-CR

“What’s the point?” No additional chemical testing occurred. Madland’s blood
sample indicated an alcohol concentration of 0.176 grams per 100 milliliters of
blood. The State charged Madland with OWI and PAC, both as a third offense.

¶6 Madland moved to suppress evidence of his blood test result. As
relevant to this appeal, Madland argued that: (1) Shields denied Madland his right
to an alternative chemical test under WIS. STAT. § 343.305(5)(a); and (2) Shields
misinformed him of his rights under the implied consent law.

¶7 At the suppression hearing, Madland testified only with regard to
whether Shields misinformed him of his rights under the implied consent law.
Madland stated he told Shields that he wanted to have his “own test,” meaning that
Madland “wanted to have a test [of] anything other than having blood taken from”
him. He did not explain this reason for wanting his “own test” to Shields. Madland
testified that he eventually concluded that Shields “got to choose what the first test
was.” Nonetheless, Madland asserted that he still wanted “an alternative test other
than blood” because he “wanted to confirm or disconfirm the numbers that were
going to be used against” him. Madland recalled being told that a blood test “was
the only test” that the sheriff’s department offered. He explained that the reason he
did not ask for another test after his blood was drawn was because he thought he did
not “have an option,” as he “was told the blood test is the only test that they do.”

¶8 After cross-examination by the State, the circuit court examined
Madland. In responding to the court’s questions, Madland could not remember
much of the events that occurred after his arrest and during his conversations with
the officer such as: if he asked Shields to read him the informing the accused form
at the hospital; whether he replied yes or no to Shields’s initial request for a blood
test at the site of the traffic stop; and whether he agreed to a blood test during the

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No. 2019AP146-CR

time between when Shields first read to him the informing the accused form at the
site of the traffic stop to the time after Shields read the form to him a second time at
the hospital. Madland could clearly remember, however, the reasons why he asked
to submit to his “own” test rather than a blood test. The court then asked Madland,
“[W]as there any conversation after [the blood test occurred] that you recall
regarding an additional test or a different test?” Madland replied, “I wanted one but
I didn’t think it was an option.” Madland further testified that he told Shields “I
want one but what’s the point?”

¶9 The circuit court denied Madland’s motion to suppress. The court
found that “the facts as testified to by Deputy Shields are the facts of the case.” It
noted that Shields’s and Madland’s respective testimony only differed on what
Madland told Shields after Madland’s blood was drawn. The court resolved the
conflicting testimony as follows:

Given all of the circumstances and observing the witnesses,
and given Mr. Madland’s lack of recollection on some other
things, and what [Shields] testified to resolved that conflict
of facts, I find that when Mr. Madland had mentioned about
the other test, well, what’s the point … I don’t believe that
Mr. Madland said, I want one but what’s the point? I believe
he said, what’s the point? Nowhere in the context of this is
it credible that he said he wanted to compare the numbers.

….

Madland didn’t say anything earlier about, well, I want an
alternative test so I can compare the results. I think this is
just what he says after the fact. But when he’s asked about
an alternative test after he’s provided the blood test, he said,
what’s the point? And the only reasonable interpretation of
that is, well, what’s the point? He didn’t want to get stuck
with a needle and he didn’t want to take the blood test. So
now that he’s taken the blood test, what would be the point;
right? And so that’s the only way that the Court can interpret
that.

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No. 2019AP146-CR

¶10 Additionally, the circuit court found, as a factual matter, that Madland
did not request an alternative chemical test. Rather, Madland had been requesting
a different primary chemical test.3

¶11 In regard to Madland’s second argument, the circuit court determined
that Shields did not mislead Madland about his rights under the implied consent law.
It noted that the additional information Shields provided to Madland outside of what
Shields read to him from the informing the accused form was “a little problematic”
and that Shields “could have stated it a little bit differently.” Nonetheless, the court
concluded Shields accurately advised Madland of his rights when it assessed the
totality of the circumstances surrounding the traffic stop and the blood draw at the
hospital:

I think if [Shields] would have been a little bit more careful
and said this is our primary test – I know he said it at one
point or another. But if you look at it in context … the way
the Court interprets it, he’s telling [Madland], look, the only
test we give for primary tests is a blood test. You have to
take the blood test before you can get another test. [Shields]
didn’t explain it exactly that way, but if you look at the
information of the Informing the Accused that was conveyed
and the request of the blood test and so forth, that is the only
reasonable interpretation.

¶12 Madland subsequently pleaded no contest to third-offense PAC, and
the circuit court entered a judgment of conviction on that count. Madland’s OWI
charge was dismissed on the State’s motion. Madland now appeals, challenging the
denial of his suppression motion.

3
As explained below, see infra ¶14, a law enforcement officer may request an individual
arrested on suspicion of OWI to submit to one of the three statutorily approved chemical tests—
breath, blood, or urine. See WIS. STAT. § 343.305(3). The law enforcement officer’s agency is
permitted to designate which of those three tests shall be administered first, and this first test is
sometimes referred to as the “primary test.” See State v. Schmidt, 2004 WI App 235, ¶8, 277 Wis.
2d 561, 691 N.W.2d 379.

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No. 2019AP146-CR

DISCUSSION

¶13 Madland asserts that he is entitled to suppression of his blood test
result, renewing the two arguments that he raised before the circuit court. Madland
first argues that he properly requested an alternative chemical test under
Wisconsin’s implied consent statute, WIS. STAT. § 343.305(2). Second, Madland
contends that Shields deviated from the standard informing the accused form,
confusing Madland and misleading him regarding his right to request an alternative
test. We reject both arguments.

I. Request for an alternative test

¶14 WISCONSIN STAT. § 343.305(2) provides that a person operating a
motor vehicle on the public highways is deemed to have given consent to one or
more tests of his or her breath, blood, or urine for the purpose of determining the
presence of alcohol or controlled substances when requested by a law enforcement
officer and consistent with certain statutory prerequisites. If a person is arrested on
suspicion of OWI, law enforcement officers may request that the person submit to
one of the three statutorily approved chemical tests—breath, blood, or urine.
Sec. 343.305(3). The law enforcement officer’s agency “may designate which of
the tests shall be administered first.” Sec. 343.305(2). This first test is sometimes
referred to as the “primary test.” State v. Schmidt, 2004 WI App 235, ¶8, 277
Wis. 2d 561, 691 N.W.2d 379.

¶15 The law enforcement officer’s agency must, however, be prepared to
administer at least two of the three approved chemical tests. WIS. STAT.
§ 343.305(2). This is so, in part, because a person can request an additional test.
See § 343.305(5)(a). Although § 343.305(4) and (5) use the term “alternative test,”
§ 343.305 makes clear that a person “does not have a right to choose a test instead

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No. 2019AP146-CR

of the one the officer asks him or her to take; rather, the ‘alternative test’ is in
addition to that test.” Schmidt, 277 Wis. 2d 561, ¶11 (emphasis in original). For
consistency with prior case law, we refer to the “alternative test” as an “additional
test.” See id.

¶16 If a person submits to the primary test, he or she must be permitted
upon request to take an additional test provided by the agency or must be allowed a
reasonable opportunity to obtain a test of his or her choice, at his or her expense.
WIS. STAT. § 343.305(5)(a). The purpose of the additional test is to afford the
accused an opportunity to verify or challenge the result of the primary test. Schmidt,
277 Wis. 2d 561, ¶12. Law enforcement officers are required to inform persons
subject to the requested chemical testing of their options by reading to them the
informing the accused form, which is prescribed by statute. See WIS. STAT.
§ 343.305(4).

¶17 The request for an additional chemical test may be made before or
after the primary test is administered. Schmidt, 277 Wis. 2d 561, ¶31. A person
cannot request, however, that a test be used other than the one a law enforcement
officer has designated as the primary test in that person’s case. See id., ¶11.
Furthermore, a request for a different primary test is insufficient to establish a
request for an additional test. See id.

¶18 Whether Madland requested an additional test requires us to construe
and apply WIS. STAT. § 343.305(5)(a) to the facts of this case. We accept the circuit
court’s findings of fact unless they are clearly erroneous. WIS. STAT. § 805.17(2).
We also accept the credibility determinations made by the circuit court sitting as the
trier of fact. Schmidt, 277 Wis. 2d 561, ¶13. However, the application of

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No. 2019AP146-CR

§ 343.305(5)(a) to the facts as found by the circuit court presents a question of law
that we review de novo. Schmidt, 277 Wis. 2d 561, ¶13.

¶19 Madland’s first argument lacks merit because it runs contrary to the
circuit court’s findings of fact. Madland states that he “made an express request for
alternative testing,” but that assertion is inconsistent with the facts the court actually
found. Rather, the court reasonably found that prior to the blood test, Madland had
been requesting a different type of test be used as the primary test because he did
not want to be stuck with a needle. The court further found that Madland did not
request an additional test after his blood had been drawn. When Shields asked
Madland if he wanted an additional test, Madland merely stated “What’s the point?”
The court found that the only reasonable interpretation of his statement was that it
was a reference to Madland’s prior comment of not wanting to be stuck with a
needle. Thus, Madland never requested an additional test. The court’s factual
findings are supported by the record, and they are therefore not clearly erroneous.

¶20 Madland appears to assert that whether he requested an additional test
is a question of law subject to de novo review. That notion is incorrect—whether a
person requests an additional test as opposed to a different primary test is a question
of fact that the trier of fact resolves. See id., ¶¶14, 31; see also State v. Tollaksen,
No. 2012AP778, unpublished slip op. ¶¶9, 13-14 (WI App Jan. 10, 2013). Here, the
circuit court properly found that Madland did not request an additional test.

II. Misleading statements

¶21 Madland alternatively argues that any failure on his part to request an
additional test was due to Shields’s misleading statements when he deviated from

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No. 2019AP146-CR

the standard informing the accused form.4 Similar to Madland’s first argument, the
issue of whether Shields improperly informed Madland of his rights under WIS.
STAT. § 343.305 requires us to apply and interpret that statute to the facts as found
by the circuit court. That presents a question of law that we determine independent
of the circuit court’s decision. See Washburn Cty. v. Smith, 2008 WI 23, ¶55, 308
Wis. 2d 65, 746 N.W.2d 243.

¶22 Madland argues that Shields provided incorrect information in
addition to that provided pursuant to Shields’s statutorily prescribed duty under
WIS. STAT. § 343.305(4) to read Madland the informing the accused form verbatim.
We engage in a three-pronged inquiry to assess the adequacy of the warning process
under the implied consent law. Smith, 308 Wis. 2d 65, ¶56. All of the following
three questions must be affirmatively answered before determining that the
information imparted by a law enforcement officer is deemed inadequate:

(1) Has the law enforcement officer not met, or exceeded his
or her duty under §[] 343.305(4) 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?

Id. (alterations omitted) (quoting County of Ozaukee v. Quelle, 198 Wis. 2d 269,
280, 542 N.W.2d 196 (Ct. App. 1995)). Here, we conclude that Madland fails the
third prong of the Quelle/Smith inquiry.

4
In Madland’s reply brief, he asserts the State concedes his argument because it does not
address his argument in its response brief. See Charolais Breeding Ranches, Ltd. v. FPC Sec.
Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). We decline to deem Madland’s
argument conceded. Whether a party concedes an argument by a failure to respond to that argument
is a decision left to our discretion. See id. Because the question is one of law, we exercise our
discretion to address the merits of Madland’s argument.

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No. 2019AP146-CR

¶23 We answer the first prong of the Quelle/Smith inquiry in the
affirmative. A law enforcement officer exceeds his or her duty under WIS. STAT.
§ 343.305(4) when he or she goes “beyond the statutory duty of reading the
information on the face of the form.” Smith, 308 Wis. 2d 65, ¶57. Here, on at least
two occasions, Shields gave Madland information in addition to that contained in
the informing the accused form. Shields told Madland that he could “request”
another test after the blood test, and Shields later told Madland that he could have a
different test after the blood test. Thus, the first prong of Quelle/Smith is met
because Shields provided Madland with information in addition to that contained in
the informing the accused form.

¶24 We also answer the second prong of the Quelle/Smith inquiry in the
affirmative. Within the Quelle/Smith inquiry, “misleading” is synonymous with
“erroneous.” State v. Ludwigson, 212 Wis. 2d 871, 875, 569 N.W.2d 762 (Ct. App.
1997). As such, a law enforcement officer’s inaccurate statement of the law requires
an affirmative finding at the second prong. See Smith, 308 Wis. 2d 65, ¶¶57, 81-
82. In at least one instance here, Shields inaccurately stated the law. Shields told
Madland that he could “request” an additional test after he submitted to a blood test,
which Shields designated as the primary test. But, Madland is permitted to request
an additional test before or after the primary test is administered. See Schmidt, 277
Wis. 2d 561, ¶31. Accordingly, we conclude the second prong of Quelle/Smith is
met.

¶25 However, Madland fails in proving the third prong of Quelle/Smith.
That prong requires us to rely upon the circuit court’s factual findings and credibility
determinations. See Ludwigson, 212 Wis. 2d at 876. On this prong, Madland is
required to make a prima facie showing that there was a “causal connection”
between Shields’s misleading statements and Madland’s failure to assert his right to

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No. 2019AP146-CR

an additional test, which connection the State may then rebut. See id. Ultimately,
however, whether Shields’s misleading statement caused Madland’s failure to assert
his right to an additional test is a factual matter. See id. We must accept a court’s
factual finding unless it is clearly erroneous. WIS. STAT. § 805.17(2).

¶26 The circuit court found that Madland’s failure to request an additional
test was not due to any misleading additional information by Shields, and we
conclude this finding of fact is not clearly erroneous. The record clearly supports
the court’s finding. The court expressly found that Shields was a credible witness
and Madland an incredible witness. Consequently, it acknowledged that Shields
could have better explained that his requests for Madland to take a blood test were
a designation of the blood test as the primary test. Nonetheless, the court found that
Madland had been requesting a different primary test because he did not want to be
stuck with a needle. The court explained that “nowhere” in the context of all the
evidence presented to the court did it appear that Madland told Shields he wanted
an additional test so that he could compare its result with the blood test’s result—
which is the purpose behind the implied consent statute’s authorization of an
additional test. See Schmidt, 277 Wis. 2d 561, ¶12. In fact, the court expressly
rejected Madland’s testimony that he had been requesting an additional test to
compare results.

¶27 Madland fails to appreciate that causation under the third prong of
Quelle/Smith is a factual finding. While Madland crafts his argument based upon
other facts found by the circuit court, he does not address the fatal fact found by the
court that he had been attempting to designate a different primary test as opposed to
requesting an additional chemical test after submitting to a blood test. Madland
instead approaches causation as a question of law subject to our independent review
of the circuit court. Both Smith and Ludwigson, however, expressly reject that

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No. 2019AP146-CR

notion and hold that causation is a factual matter determined by the trier of fact. See
Smith, 308 Wis. 2d 65, ¶¶70, 85-86; Ludwigson, 212 Wis. 2d at 876.

¶28 For the foregoing reasons, Madland has not satisfied the third prong
of the Quelle/Smith inquiry. We conclude Shields adequately discharged his duty
under WIS. STAT. § 343.305(4) to inform Madland of his rights under the implied
consent law, notwithstanding Shields’s deviation from the informing the accused
form. We therefore conclude the circuit court properly denied Madland’s motion to
suppress evidence of his blood test’s result.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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