State v. Dawn J. Levanduski

2020 WI App 53
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1144-CR

† Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

DAWN J. LEVANDUSKI,

DEFENDANT-RESPONDENT.†

Opinion Filed: July 1, 2020
Submitted on Briefs: June 11, 2020

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Jeffrey A. Sisley, assistant district attorney.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of John T. Bayer of Law Offices of John T. Bayer, Milwaukee.
2020 WI App 53

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.
July 1, 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. 2019AP1144-CR Cir. Ct. No. 2018CT238

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

DAWN J. LEVANDUSKI,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Ozaukee County:
TIMOTHY M. VAN AKKEREN, Judge. Reversed and cause remanded for further
proceedings.

Before Neubauer, C.J., Gundrum and Davis, JJ.
No. 2019AP1144-CR

¶1 GUNDRUM, J.1 The State appeals from an order of the circuit court
suppressing evidence from a blood draw of Dawn Levanduski following her arrest
for operating a motor vehicle while intoxicated (OWI), second offense. The court
granted Levanduski’s suppression motion on the basis that her consent to the draw
was not voluntary because the arresting officer, as part of reading the Informing the
Accused form to her, informed her that if she refused to submit to the blood draw,
“the fact that [she] refused testing can be used against [her] in court,” which
information the court concluded and Levanduski insists was a misrepresentation of
the law. Because we conclude that the Informing the Accused form, and hence the
officer, did not misrepresent the law to Levanduski, we also conclude that her
consent to the blood draw was voluntary.2 With that, we determine that the court
erred in granting her suppression motion, and we reverse and remand for further
proceedings.

Background

¶2 After observing significant indicia of intoxication, an officer arrested
motorist Levanduski for OWI, second offense. Following the officer reading her
the Informing the Accused form, Levanduski consented to the drawing of her blood.
Part of that form states: “If you refuse to take any test that this agency requests,
your operating privileges 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.”
WIS. STAT. § 343.305(4) (emphasis added). An analysis of Levanduski’s blood
sample indicated a .269 blood alcohol concentration (BAC). She was charged with

1
This appeal was converted from a one-judge appeal to a three-judge appeal under WIS.
STAT. RULE 809.41(3) (2017-18). All references to the Wisconsin Statutes are to the 2017-18
version unless otherwise noted.
2
Levanduski identifies no other basis for claiming her consent was involuntary.

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No. 2019AP1144-CR

OWI and operating with a prohibited alcohol concentration, both as a second
offense.

¶3 Levanduski moved to suppress the blood test results. She claimed her
consent to the blood draw was involuntary because she had a constitutional right to
refuse to submit to a blood draw and the officer violated that right by misinforming
her that if she refused to submit to it, the fact that she refused could be used against
her in court. The circuit court agreed and granted Levanduski’s motion. The State
appeals.

Discussion

¶4 In reviewing a circuit court’s order granting or denying a suppression
motion, “[w]e will uphold the court’s factual findings unless they are clearly
erroneous, but we independently apply constitutional principles to those facts.”
State v. Coffee, 2019 WI App 25, ¶6, 387 Wis. 2d 673, 929 N.W.2d 245.

¶5 WISCONSIN STAT. § 343.305, Wisconsin’s implied consent law,
provides in relevant part:

(2) IMPLIED CONSENT. Any person who ... drives or
operates a motor vehicle upon the public highways of this
state … 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 or quantity in his or her blood or
breath, of alcohol [or drugs], or any combination of [these
substances], when requested to do so by a law enforcement
officer under sub. (3)(a) …. Any such tests shall be
administered upon the request of a law enforcement
officer….

(3) … (a) Upon arrest of a person for a violation of [WIS.
STAT. §] 346.63(1) … a law enforcement officer may request
the person to provide one or more samples of his or her
breath, blood or urine for the purpose specified under
sub.(2)….

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No. 2019AP1144-CR

….

(4) INFORMATION. At the time that a chemical test
specimen is requested under sub. (3)(a) …, the law
enforcement officer shall read the following to the person
from whom the test specimen is requested:

“You have … been arrested for an offense that involves
driving or operating a motor vehicle while under the
influence of alcohol or drugs, or both …

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.

….”

(Emphasis added.)

¶6 Similar to her argument before the circuit court, Levanduski argues
on appeal that under the state of the law at the time of her arrest, she had a Fourth
Amendment constitutional right to refuse to submit to a blood draw. Because of
this, she insists, when the officer, pursuant to WIS. STAT. § 343.305(4), read to her
the Informing-the-Accused language stating that if she refused to submit to the
requested test, “the fact that [she] refused testing [could] be used against [her] in
court,” the officer misrepresented the law. And because the officer misrepresented
the law, she continues, her consent to the blood draw was coerced and not voluntary.
The law does not support Levanduski’s position.

¶7 In South Dakota v. Neville, 459 U.S. 553, 555 (1983), Neville refused
to submit to a blood draw after police warned him he could lose his driver’s license
if he refused. When Neville’s Fifth Amendment case came before the Supreme
Court, the Court noted that South Dakota’s implied-consent law was designed to

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No. 2019AP1144-CR

discourage refusals by providing for the revocation of the driver’s license as well as
“allowing the refusal to be used against the defendant at trial.” Id. at 559-60. The
Court held “that the admission into evidence of a defendant’s refusal to submit to [a
blood-alcohol] test … does not offend the right against self-incrimination.” Id. at
554. Contrasting the use at trial of a defendant’s refusal to take the witness stand
with the use of a defendant’s refusal to submit to a blood draw, the Court expressed
that “a prosecutor’s or trial court’s comments on a defendant’s refusal to take the
witness stand impermissibly burdened the defendant’s Fifth Amendment right to
refuse,” but in the case of a refusal to submit to a blood draw “a person suspected
of drunk driving has no constitutional right to refuse to take a blood-alcohol test.”
Id. at 560 n.10.

¶8 Neville also challenged the use of his refusal on due process grounds
because although the law enforcement officer had warned him pre-refusal that his
driver’s license could be revoked if he refused to submit to the blood test, the officer
did not specifically warn him that the fact of his refusal could be used as evidence
against him in court. Id. at 555, 564. The Court contrasted using the fact of a
defendant’s refusal with using as impeachment evidence the defendant’s silence
following Miranda3 warnings. Id. at 565. The Neville Court stated that unlike using
a defendant’s silence against him,

we do not think it fundamentally unfair for South Dakota to
use the refusal to take the test as evidence of guilt, even
though respondent was not specifically warned that his
refusal could be used against him at trial. First, the right to
silence underlying the Miranda warnings is one of
constitutional dimension, and thus cannot be unduly
burdened. [Neville’s] right to refuse the blood-alcohol test,
by contrast, is simply a matter of grace bestowed by the
South Dakota legislature.

3
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2019AP1144-CR

Id. (citation omitted). The Court found no due process violation and noted that it
was a lawful “consequence” that evidence of Neville’s refusal could be used against
him “in court” and “at trial.” Id. at 565-66.

¶9 Two years after Neville, in State v. Bolstad, 124 Wis. 2d 576, 585,
370 N.W.2d 257 (1985), our supreme court expressed that “[t]he state may submit
[at trial] the … admissible evidence that Bolstad refused” to permit a blood draw to
“test for blood alcohol content.” Then, in State v. Zielke, 137 Wis. 2d 39, 50-51,
403 N.W.2d 427 (1987), another blood-draw case, the court indicated that if law
enforcement appropriately advises an OWI suspect by reading the Informing-the-
Accused information to the suspect, the State may “obtain the benefit of using
refusal evidence in the criminal prosecution for the substantive offense involving
intoxicated use of a vehicle.” Referring to an earlier decision in State v. Crandall,
133 Wis. 2d 251, 394 N.W.2d 905 (1986), the Zielke court summarized the
Crandall court’s holding as “[o]nce appropriately advised[,] there was no
constitutional impediment to using the fact of refusal in the subsequent prosecution
for operating while intoxicated.” Zielke, 137 Wis. 2d at 50. Drawing from Bolstad
and a decision of this court in State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196
(Ct. App. 1980), the Zielke court summarized the state of the law on this point at
that time: “[T]he fact of the defendant’s refusal to submit to a test may be introduced
at trial on the substantive drunk driving offense as a means of showing
consciousness of guilt.” Zielke, 137 Wis. 2d at 49-50.

¶10 Despite the clear rule that an OWI suspect’s refusal to submit to a
blood draw can be used against the suspect as evidence in court, Levanduski insists
this rule has been abrogated by recent decisions of the United States Supreme Court
and Wisconsin Supreme Court. She is incorrect; in fact, the rule has been
reinforced.

6
No. 2019AP1144-CR

¶11 While Levanduski relies most heavily upon Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147,
914 N.W.2d 120, we first briefly set the stage with Missouri v. McNeely, 569 U.S.
141 (2013). In discussing the application of a totality-of-the-circumstances analysis
for determining whether, in the Fourth Amendment context, exigent circumstances
justified a warrantless search, the McNeely Court cited to Neville and observed:

States have a broad range of legal tools to enforce their
drunk-driving laws and to secure BAC evidence without
undertaking warrantless nonconsensual blood draws. For
example, all 50 States have adopted implied consent laws
that require motorists, as a condition of operating a motor
vehicle within the State, to consent to BAC testing if they
are … detained on suspicion of a drunk-driving offense.
Such laws impose significant consequences when a motorist
withdraws consent; typically the motorist’s driver’s license
is immediately suspended or revoked, and most States allow
the motorist’s refusal to take a BAC test to be used as
evidence against him in a subsequent criminal prosecution.

McNeely, 569 U.S. at 160-61 (emphasis added; citations omitted). Thus, the
McNeely Court recognized as an acceptable “legal tool[]” using the fact of a
defendant’s refusal against the defendant “in a subsequent criminal prosecution.”
Id.

¶12 Discussing implied consent laws, also in the Fourth Amendment
context, the Court held three years later that a refusal to submit to a blood test cannot
be the basis for a separate criminal charge, stating that “motorists cannot be deemed
to have consented to submit to a blood test on pain of committing a criminal
offense.” Birchfield, 136 S. Ct. at 2186. However, the Court, specifically citing
McNeely and Neville, further stated:

Our prior opinions have referred approvingly to the general
concept of implied-consent laws that impose civil penalties
and evidentiary consequences on motorists who refuse to
comply. See, e.g., McNeely, [569 U.S. at 160-61] (plurality

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No. 2019AP1144-CR

opinion); Neville, [459 U.S. at 560]. Petitioners do not
question the constitutionality of those laws, and nothing we
say here should be read to cast doubt on them.

It is another matter, however, for a State not only to insist
upon an intrusive blood test, but also to impose criminal
penalties on the refusal to submit to such a test. There must
be a limit to the consequences to which motorists may be
deemed to have consented by virtue of a decision to drive on
public roads.

Birchfield, 136 S. Ct. at 2185 (emphasis added). Thus, the Birchfield Court
reiterated the lawfulness of implied-consent laws that impose “civil penalties and
evidentiary consequences” on motorists who refuse to submit to a blood draw. Id.
Importantly, in adding that it is “another matter” for a state to impose “criminal
penalties” on the refusal to submit to a blood draw, the Court also specifically
distinguished “civil penalties” and “evidentiary consequences” from the ambit of
what it considered to be “criminal penalties.” See id. Thus, pursuant to Birchfield,
a State may not make a drunk-driving suspect’s refusal a crime itself, but may
impose civil penalties and “evidentiary consequences” on such refusals.4 Id.

¶13 Two years later, our state supreme court decided Dalton. In that case,
a circuit court sentenced OWI-defendant Dalton to a longer jail sentence “for the
sole reason that he refused to submit to a blood test.” Dalton, 383 Wis. 2d 147, ¶60.
Holding on appeal that a sentence that is extended solely on this basis is unlawful,
the Dalton court expressed that the Birchfield Court had “emphasized that criminal
penalties may not be imposed for a refusal” and “[a] lengthier jail sentence is
certainly a criminal penalty.” Dalton, 383 Wis. 2d 147, ¶¶58-59. Significant for
the case now before us, however, the Dalton court also recognized that “the

4
As the State correctly notes: “Levanduski does not explain what else the Birchfield [v.
North Dakota, 136 S. Ct. 2160 (2016),] Court could have meant by ‘evidentiary consequences’ if
it did not mean ‘use of refusal as evidence.’ After all, what is the use of the refusal as evidence if
it is not an ‘evidentiary consequence’ of a refusal?”

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No. 2019AP1144-CR

Birchfield court acknowledged that ‘prior opinions [(specifically McNeely and
Neville)] have referred approvingly to the general concept of implied-consent laws
that impose civil penalties and evidentiary consequences on motorists who refuse
to comply’.” Dalton, 383 Wis. 2d 147, ¶58 (citation omitted). The Dalton court
then quoted the Birchfield Court’s statements that “[i]t is another matter, however,
for a State not only to insist upon an intrusive blood test, but also to impose criminal
penalties on the refusal to submit to such a test” and “[t]here must be a limit to the
consequences to which motorists may be deemed to have consented by virtue of a
decision to drive on public roads.” Dalton, 383 Wis. 2d 147, ¶58 (citation omitted).
Thus, the Dalton court, like the Birchfield Court, acknowledged that imposing
“civil penalties and evidentiary consequences” on drunk-driving suspects who
refuse to submit to a blood draw is lawful under the Fourth Amendment, but that
imposing “criminal penalties” for a refusal is not. Dalton, 383 Wis. 2d 147, ¶58.5

¶14 Relying heavily upon the Birchfield/Dalton language that “[t]here
must be a limit to the consequences to which motorists may be deemed to have

5
We recognize that in Dalton our supreme court stated at one point that “[p]ursuant to the
circuit court’s unequivocal sentencing remarks, Dalton was criminally punished for exercising his
constitutional right.” See State v. Dalton, 2018 WI 85, ¶61, 383 Wis. 2d 147, 914 N.W.2d 120
(emphasis added). Read within the entirety of the decision, it is clear the court meant the Fourth
Amendment right to be free from unreasonable warrantless searches and seizures, and under
Birchfield, Dalton could not suffer a criminal penalty due solely to his refusal to submit to a blood
draw. See Birchfield, 136 S. Ct. at 2185-86; Dalton, 383 Wis. 2d 147, ¶¶57-66. Criminal penalties
for refusal under an implied consent law impermissibly burden and penalize that right; civil
penalties and evidentiary consequences do not. Thus, criminal penalties are beyond the
constitutional “limit” of one’s consent under an implied consent statute, but civil penalties and
evidentiary consequences are not. See Dalton, 383 Wis. 2d 147, ¶58. Furthermore, as noted, see
supra ¶9, our supreme court also specifically stated in State v. Zielke, 137 Wis. 2d 39, 49-51, 403
N.W.2d 427 (1987), and State v. Bolstad, 124 Wis. 2d 576, 585-86, 370 N.W.2d 257 (1985), that
the fact of a defendant’s refusal to submit to a blood draw may be lawfully used against the
defendant in a trial on the substantive OWI charge, and the Dalton court does not even mention
those cases much less provide any suggestion that it was overruling them on this point.

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No. 2019AP1144-CR

consented by virtue of a decision to drive on public roads,” Levanduski conclusorily
argues that “[u]sing a person’s refusal against them in court to argue they are guilty
of a crime falls under the broad definition of a criminal penalty.” Fatal to
Levanduski’s argument, however, are the Birchfield/Dalton sentences immediately
preceding the one upon which she relies. Again, in those prior sentences, the Dalton
and Birchfield courts clearly “acknowledge[]” that “civil penalties and evidentiary
consequences” are distinct from “criminal penalties” and that imposing the former
on defendants who refuse to submit to a blood test are within that “limit,” while

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No. 2019AP1144-CR

imposing the latter are outside of it. Birchfield, 136 S. Ct. at 2185 (emphasis
added); Dalton, 383 Wis. 2d 147, ¶58, ¶80 (Roggensack, C.J., dissenting).6

¶15 Based upon the foregoing, we conclude that when the officer read
Levanduski the Informing-the-Accused statement, “If you refuse to take any test
that this agency requests … the fact that you refused testing can be used against you
in court,” he correctly stated the law. Because the officer correctly stated the law,
Levanduski’s consent to the blood draw was voluntary, and the results of the blood
test may be used against her at trial. And because the circuit court granted
Levanduski’s suppression motion based upon an incorrect understanding of the law,
we reverse the order granting the motion and remand for further proceedings.

By the Court.—Order reversed and cause remanded for further
proceedings.

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No. 2019AP1144-CR

6
As the State points out, like the Dalton court, numerous other state courts also have
recognized that Birchfield reinforced that states may lawfully “impose civil penalties and
evidentiary consequences on motorists who refuse to comply” with a request for a blood draw.
Birchfield, 136 S. Ct. at 2185. See People v. Nzolameso, 252 Cal. Rptr. 3d 589, 595 (Cal. Ct. App.
2019) (indicating that “Birchfield made clear that its holding barring warrantless blood tests on
pain of criminal penalty should not be read to ‘cast doubt’ on the constitutionality of ‘implied-
consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to
comply’ with blood tests” (citation omitted)); Fitzgerald v. People, 2017 CO 26, ¶¶25-26, 394 P.3d
671 (holding that Birchfield did not impact Colorado’s law that “allows a driver’s refusal to submit
to testing to be entered into evidence if the driver is prosecuted for DUI” and adding that Birchfield
indicated that “anything short of criminalizing refusal does not impermissibly burden or penalize a
defendant’s Fourth Amendment right to be free from an unreasonable warrantless search,” so
“introducing evidence of [a defendant’s] refusal to consent to a blood or breath test … did not
impermissibly burden his Fourth Amendment right”); Commonwealth v. Brown, 560 S.W.3d 873,
878 (Ky. Ct. App. 2018) (citing Birchfield, Missouri v. McNeely, 569 U.S. 141 (2013), and South
Dakota v. Neville, 459 U.S. 553 (1983) in recognizing that “Supreme Court opinions have
repeatedly affirmed statutory schemes which impose administrative or civil sanctions or create
evidentiary penalties” for a drunk driving suspect who refuses to submit to a blood draw); State v.
LeMeunier-Fitzgerald, 2018 ME 85, ¶26, 188 A.3d 183 (finding constitutional Maine’s law
requiring an officer to warn an OWI suspect that refusing to submit to a blood test is admissible
against the suspect in court and stating that the Birchfield Court determined that “neither the threat
of evidentiary use of the refusal nor the threat of license suspension renders the consent
involuntary”); State v. Hood, 917 N.W.2d 880, 892-93 (Neb. 2018) (noting that Birchfield
“clarified that the propriety of evidentiary consequences for a driver’s refusal to submit to a blood
draw should not be questioned” and holding that “evidence of a driver’s refusal to submit to a
warrantless blood draw is admissible in a DUI prosecution”); State v. Storey, 2018-NMCA-009,
¶¶39, 43, 410 P.3d 256 (noting that the Birchfield Court distinguished between “criminalizing the
refusal to take a [blood test] (which it deemed unconstitutional as a proposed exception under the
consent doctrine) and using that refusal as evidence of consciousness of guilt on the underlying
driving while intoxicated offense (which it signaled is constitutional)” and concluding that
“Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence
establishing a defendant’s refusal to take a blood test”); People v. Vital, No. 2016NY041707,
unpublished slip op. (N.Y. Crim. Ct. Jan. 20, 2017) (concluding that Birchfield did not affect New
York’s OWI law that imposes civil penalty (license suspension) and evidentiary consequences
(admission at trial of defendant’s refusal to submit to a blood test)); Commonwealth v. Bell, 211
A.3d 761, 775-76 (Pa. 2019) (noting that the Birchfield Court “did not back away from its prior
approval of [using a suspect’s refusal against the suspect as an] “evidentiary consequence[]” and
holding that Pennsylvania’s statutory “evidentiary consequence” of allowing “the admission of that
refusal at a subsequent trial for DUI—remains constitutionally permissible post-Birchfield”); Dill
v. State, No. 05-15-01204-CR, unpublished slip op. at *3 (Tex. App. Jan. 11, 2017) (holding that
the admission of evidence of a defendant’s refusal did not violate the Fourth Amendment and
adding that it was bound by Neville and expressing that “in Birchfield, the Supreme Court
acknowledged the continued validity of Neville”); State v. Rajda, 2018 VT 72, ¶30, 196 A.3d 1108
(noting that in Birchfield “the Court went out of its way to endorse the constitutionality of implied
consent laws and strongly suggested that consequences for refusing a blood test short of criminal
prosecution—such as civil and evidentiary consequences—were not constitutionally infirm”);
Johnson v. Commonwealth, No. 1591-18-1, unpublished slip op. at *15 (Va. Ct. App. Feb. 18,

2

(co
No. 2019AP1144-CR

2020) (concluding that “[t]he holding in Birchfield should not be read to cast doubt on ‘laws that
impose civil penalties and evidentiary consequences on motorists who refuse to comply’” (citing
Birchfield, 136 S. Ct. at 2185)); see also Dortch v. State, 2018 Ark. 135, 14, 544 S.W.3d 518, 526-
27 (recognizing that the Birchfield Court “noted that its ‘prior opinions have referred approvingly
to the general concept of implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply’” (citation omitted)); Olevik v. State, 806 S.E.2d
505 (Ga. 2017) (same); State v. Charlson, 377 P.3d 1073, 1078 (Idaho 2016) (same); State v. Ryce,
396 P.3d 711, 716 (Kan. 2017) (same); People v. Stricklin, 935 N.W.2d 59, 64 (Mich. Ct. App.
2019) (same); Vondrachek v. Commissioner of Pub. Safety, 906 N.W.2d 262, 269 (Minn. Ct. App.
2017) (same); State v. Romano, 800 S.E.2d 644, 652 (N.C. 2017) (same); Schoon v. North Dakota
DOT, 2018 ND 210, ¶19, 917 N.W.2d 199, 205 (same); State v. Barnhart, 2019-Ohio-1184, ¶23,
(Ohio Ct. App.) (same); State v. Reynolds, 504 S.W.3d 283, 307 (Tenn. 2016) (same); State v.
Baird, 386 P.3d 239, 247 (Wash. 2016) (same). But see McCarthy v. Commonwealth, No. 2017-
CA-001927-MR, unpublished slip op. (Ky. Ct. App. June 14, 2019), review granted, (Ky. Dec. 13,
2019).

3