State v. Donnie Gene Richards

2020 WI App 48

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2017AP43-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONNIE GENE RICHARDS,

DEFENDANT-APPELLANT.

Opinion Filed: July 16, 2020
Submitted on Briefs: December 6, 2019

JUDGES: Fitzpatrick, P.J., Blanchard, and Graham, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Alisha McKay and Colleen Marion, assistant state public
defenders of Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
briefs of David H. Perlman, assistant attorney general, and Brad D.
Schimel, attorney general.
2020 WI App 48

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 16, 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. 2017AP43-CR Cir. Ct. No. 2014CF134

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONNIE GENE RICHARDS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waushara County:
GUY D. DUTCHER, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.

¶1 FITZPATRICK, P.J. Donnie Gene Richards was found by a sheriff’s
deputy behind the wheel of a motor vehicle, severely injured, at the scene of an
accident. The deputy determined that there was probable cause to believe that
Richards had been operating the vehicle while under the influence of an intoxicant
No. 2017AP43-CR

(OWI). See WIS. STAT. § 346.63(1)(a) (2011-12).1 Because Richards, then
unconscious, would shortly be taken by helicopter to a hospital approximately fifty
miles away, the deputy decided that there would not be sufficient time to obtain a
search warrant for a blood draw. Blood was drawn from Richards, at the deputy’s
request, before Richards was placed in the helicopter.

¶2 Richards was charged in the Waushara County Circuit Court with
OWI, 12th offense. Richards requested in the circuit court that the results of the
blood test be suppressed on the ground that his constitutional rights were violated
in that the blood draw was done without a search warrant. The circuit court denied
Richards’ motion after an evidentiary hearing. The court determined that, because
there were exigent circumstances, a search warrant was not required for the blood
draw. Richards pleaded guilty to OWI 12th offense and was sentenced. On appeal,
Richards challenges the circuit court’s denial of his suppression motion. Applying
the factors set forth in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), we affirm.

BACKGROUND

¶3 Waushara County Deputy Ryan McElroy testified at the suppression
hearing to the following material facts.

¶4 McElroy was dispatched to an accident scene at approximately
11:30 p.m. on July 30, 2014, and he remained at the scene for about an hour. When
he arrived, McElroy observed a vehicle in a ditch facing the wrong direction with
its engine running. McElroy found Richards sitting in the driver’s seat of the vehicle
and observed that Richards was severely injured with a laceration on his forehead,
a swollen and apparently broken arm, and the other arm lacerated so badly that fatty

1
The offense took place in 2014. Accordingly, all references to the Wisconsin Statutes
are to the 2011-12 version unless otherwise noted.

2
No. 2017AP43-CR

tissue within the cut was exposed. McElroy contacted emergency medical services
(EMS) personnel immediately after arriving at the accident scene.

¶5 Richards smelled of intoxicants. There were several open beer cans
strewn about the inside of the vehicle.

¶6 McElroy attempted to talk to Richards at the accident scene, but
Richards faded in and out of consciousness. It appeared to McElroy at the scene
that Richards’ injuries would prevent him from responding, or consenting, to a
request for a blood draw or breath test.

¶7 When EMS personnel arrived, they informed McElroy that Richards
would be initially transported by ambulance to the Wild Rose Hospital, and then
helicopter transport would be necessary so that Richards could be treated about 50
miles away at Theda Clark Medical Center in Neenah.

¶8 EMS personnel were on the scene for about 15 to 20 minutes before
transporting Richards to the Wild Rose Hospital. During the time EMS personnel
were on the scene, McElroy remained with Richards. While at the accident scene,
McElroy was not specifically gathering evidence to support an OWI charge.
Instead, his focus was on Richards’ serious injuries and getting Richards treatment
for those injuries.

¶9 As Richards was placed in the ambulance at the accident scene,
McElroy noticed that the laceration on Richards’ head had grown larger, and it
appeared that Richards’ “entire forehead dropped down” to his brow. Before
leaving the scene, McElroy was advised by Waushara County dispatch that Richards
had at least three prior OWI convictions. Once en route to the Wild Rose Hospital,
EMS personnel notified McElroy that Richards had lost consciousness.

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No. 2017AP43-CR

¶10 During the ten- to fifteen-minute drive to the Wild Rose Hospital,
McElroy knew that Richards would be airlifted by helicopter at some future point,
but was not certain of how soon that would occur. Prior to arriving at the Wild Rose
Hospital, McElroy “decided that there was enough probable cause that [Richards]
was operating while intoxicated.”

¶11 McElroy arrived at the Wild Rose Hospital at approximately
12:45 a.m. When McElroy arrived at the Wild Rose Hospital, he was told that
Richards would be put on a helicopter for Theda Clark Medical Center “[a]s soon
as possible.” To facilitate that, Richards was not taken into the Wild Rose Hospital
but was kept in the ambulance. The scene at the Wild Rose Hospital was “hectic”
as there was concern over getting Richards treatment for his injuries.

¶12 McElroy asked a member of the Wild Rose Hospital staff to perform
a blood draw on Richards, and blood was drawn at approximately 12:55 a.m. while
Richards was still in the ambulance. The test of the blood draw would later show
that Richards had a blood alcohol content of .196. At approximately 1:15 a.m.
Richards was airlifted by helicopter to Theda Clark Medical Center.

¶13 At the suppression hearing, McElroy described the typical procedure
to obtain a search warrant for a blood draw in Waushara County. Search warrants
for blood draws in OWI cases are accomplished by phone to the Waushara County
Circuit Court Judge. Typically after investigation, it takes another twenty to thirty
minutes to prepare the paperwork and be prepared to answer the questions likely to
be posed by the judge regarding the search warrant.

¶14 The State charged Richards with OWI, 12th offense, pursuant to WIS.
STAT. § 346.63(1)(a), and operating a motor vehicle with a prohibited alcohol
concentration (PAC), 12th offense, pursuant to § 346.63(1)(b).

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No. 2017AP43-CR

¶15 Richards filed a motion to suppress the blood test results on the ground
that his constitutional rights were violated because the blood draw was done without
a search warrant. After an evidentiary hearing, the circuit court denied the motion,
concluding that the warrantless blood draw was justified by exigent circumstances.

¶16 Richards pleaded guilty to OWI, 12th offense, and the PAC charge
was dismissed and read in at sentencing. Richards challenges on appeal the circuit
court’s denial of his suppression motion.

¶17 We will mention other material facts in the following discussion.

DISCUSSION

¶18 Richards argues that the circuit court erred in denying his motion to
suppress the test results of the blood draw because, without a search warrant, the
blood draw violated his right to be free from unreasonable searches under the Fourth
Amendment to the U.S. Constitution. The State argues that no search warrant was
required because there were exigent circumstances related to Richards’ injuries and
his unconscious state at the time of the blood draw.

¶19 We begin our analysis by discussing governing principles regarding
blood draws and exigent circumstances, and our standard of review.

I. Governing Principles and Standard of Review.

¶20 This court recently considered governing principles regarding blood
draws and exigent circumstances in the OWI context in State v. Hay, 2020 WI App
35, 392 Wis. 2d 845, 946 N.W.2d 190, and we now quote pertinent portions of that
opinion:

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No. 2017AP43-CR

“A blood draw is a search of the person,” and
performing such a search without a warrant is
“presumptively unreasonable” under the Fourth
Amendment. State v. Brar, 2017 WI 73, ¶16, 376 Wis. 2d
685, 898 N.W.2d 499 (citation omitted); State v. Howes,
2017 WI 18, ¶20, 373 Wis. 2d 468, 893 N.W.2d 812. There
are, however, several recognized exceptions to the warrant
requirement. State v. Ziedonis, 2005 WI App 249, ¶13, 287
Wis. 2d 831, 707 N.W.2d 565. The exception at issue in this
case—exigent circumstances—applies when, based upon
the totality of the circumstances, “the exigencies of the
situation make the needs of law enforcement so compelling
that a warrantless search is objectively reasonable under the
Fourth Amendment.” See Missouri v. McNeely, 569 U.S.
141, 148-49, 156 … (2013) (citation omitted); Howes, 373
Wis. 2d 468, ¶¶23, 29, 893 N.W.2d 812. Exigent
circumstances exist when “the need for a search is urgent and
there is insufficient time to obtain a warrant.” State v.
Dalton, 2018 WI 85, ¶39, 383 Wis. 2d 147, 914 N.W.2d 120.

“In an OWI case, the natural dissipation of alcohol in
the bloodstream may present a risk that evidence will be
destroyed and may therefore support a finding of exigency
in a specific case.” Dalton, 383 Wis. 2d 147, ¶40,
914 N.W.2d 120. Exigent circumstances justifying a
warrantless blood draw also “may arise in the regular course
of law enforcement due to delays from the warrant
application process.” Id. (citation omitted).

Id., ¶¶10-11.

¶21 Appellate review of a circuit court’s order regarding a motion to
suppress evidence presents a question of constitutional fact necessitating a two-step
review process. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d
120. First, we uphold the circuit court’s factual findings unless those are clearly
erroneous. Id. Second, this court independently applies constitutional principles to
the facts. Id.

¶22 We now consider the U.S. Supreme Court’s opinion in Mitchell.

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No. 2017AP43-CR

II. Mitchell v. Wisconsin.2

¶23 In Mitchell, the U.S. Supreme Court considered whether there are
exigent circumstances which provide an exception to the Fourth Amendment
warrant requirement when a blood draw is taken from an unconscious motorist. The
Supreme Court sets forth a “rule” in the “narrow but important category” of cases
in which a driver suspected of an OWI offense is unconscious. Mitchell, 139 S. Ct.
at 2531, 2534 n.2. In stating its reasoning for that rule, the Court “keep[s] in mind
the wider regulatory scheme developed over the years to combat drunk driving.”
Id. at 2533. We now summarize the Supreme Court’s discussion of that regulatory
scheme in the context of an unconscious driver suspected of an OWI offense.

¶24 In Mitchell, the Supreme Court emphasizes the importance of blood
alcohol concentration (BAC) evidence:

The importance of the needs served by BAC testing
is hard to overstate…. The specifics, in short, are these:
Highway safety is critical; it is served by laws that
criminalize driving with a certain BAC level; and enforcing
these legal BAC limits requires efficient testing to obtain
BAC evidence ….

2
As noted in various orders issued in this appeal, we believed that cases pending in our
supreme court would control the outcome of this appeal, and we placed this opinion on hold
awaiting our supreme court’s decisions. Those cases were State v. Brar, 2017 WI 73, 376 Wis. 2d
685, 898 N.W.2d 499; State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774; and
State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, vacated and remanded by
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019). However, we recognized after each opinion was
issued that each opinion did not provide a clear answer to the issues in this appeal. This court then
certified State v. Hawley, No. 2015AP1113-CR, unpublished certification (WI App. Nov. 21,
2018), to the Wisconsin Supreme Court, and we again placed this appeal on hold pending the
Supreme Court’s action in Hawley. Our supreme court did not accept the certification in Hawley.
See State v. Hawley, No. 2015AP1113-CR, certification refused (Sept. 3, 2019). The U.S. Supreme
Court issued an opinion in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), which reviewed our
supreme court’s decision in State v. Mitchell. We asked for supplemental briefing regarding the
U.S. Supreme Court’s holding in Mitchell, which has now been completed.

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No. 2017AP43-CR

Id. at 2535. The Court then reviews the need for accurate BAC testing and the
dissipation of alcohol in a suspected drunk driver:

[E]nforcing BAC limits obviously requires a test that is
accurate enough to stand up in court, [Birchfield v. North
Dakota], 136 S. Ct. [2160], [] 2167-68; see also [Missouri
v.] McNeely, 569 U.S. [141], [] 159-160 … (plurality
opinion). And we have recognized that ‘[e]xtraction of
blood samples for testing is a highly effective means of’
measuring ‘the influence of alcohol.’ Schmerber [v.
California], 384 U.S. [757], [] 771 ….

Id. at 2536. Enforcement of BAC limits also requires prompt testing because it is
“‘a biological certainty’ that ‘[a]lcohol dissipates from the bloodstream at a rate of
0.01 percent to 0.025 percent per hour.... Evidence is literally disappearing by the
minute.’” Id. at 2536 (quoting McNeely, 569 U.S. at 169).

¶25 The Court explains the need for a blood draw when a driver is
unconscious:

Finally, when a breath test is unavailable to promote
those interests, “a blood draw becomes necessary.”
McNeely, 569 U.S., at 170 … (opinion of ROBERTS, C.J.).
Thus, in the case of unconscious drivers, who cannot blow
into a breathalyzer, blood tests are essential for achieving the
compelling interests described above.

Id. at 2536-37.

¶26 As part of its analysis, the Court stresses the importance of the driver’s
unconscious state in the exigent circumstances analysis:

In Schmerber, the extra factor giving rise to urgent needs
that would only add to the delay caused by a warrant
application was a car accident; here it is the driver’s
unconsciousness. Indeed, unconsciousness does not just
create pressing needs; it is itself a medical emergency. It
means that the suspect will have to be rushed to the hospital
or similar facility not just for the blood test itself but for
urgent medical care. Police can reasonably anticipate that
such a driver might require monitoring, positioning, and

8
No. 2017AP43-CR

support on the way to the hospital; that his blood may be
drawn anyway, for diagnostic purposes, immediately on
arrival; and that immediate medical treatment could delay
(or otherwise distort the results of) a blood draw conducted
later, upon receipt of a warrant, thus reducing its evidentiary
value. See McNeely, [569 U.S] at 156 ….

Id. at 2537-38.

¶27 The Court explains that exigent circumstances are present when “the
need for a blood test is compelling, and an officer’s duty to attend to more pressing
needs may leave no time to seek a warrant.” Id. at 2535. This presents difficult
choices for law enforcement:

These pressing matters, too, would require responsible
officers to put off applying for a warrant, and that would only
exacerbate the delay—and imprecision—of any subsequent
BAC test.

In sum, all these rival priorities would put officers,
who must often engage in a form of triage, to a dilemma. It
would force them to choose between prioritizing a warrant
application, to the detriment of critical health and safety
needs, and delaying the warrant application, and thus the
BAC test, to the detriment of its evidentiary value and all the
compelling interests served by BAC limits. This is just the
kind of scenario for which the exigency rule was born—just
the kind of grim dilemma it lives to dissolve.

Id. at 2538.

¶28 Based on these considerations, the Court adopts the following “rule
for an entire category of cases—those in which a motorist believed to have driven
under the influence of alcohol is unconscious and thus cannot be given a breath
test.” Id. at 2534 n.2.

When police have probable cause to believe a person
has committed a drunk-driving offense and the driver’s
unconsciousness or stupor requires him to be taken to the
hospital or similar facility before police have a reasonable
opportunity to administer a standard evidentiary breath test,

9
No. 2017AP43-CR

they may almost always order a warrantless blood test to
measure the driver’s BAC without offending the Fourth
Amendment. We do not rule out the possibility that in an
unusual case a defendant would be able to show that his
blood would not have been drawn if police had not been
seeking BAC information, and that police could not have
reasonably judged that a warrant application would interfere
with other pressing needs or duties.

Id. at 2539.3

¶29 That rule from Mitchell establishes that there are exigent
circumstances, and law enforcement may order a blood draw to measure a driver’s
blood alcohol content without obtaining a search warrant, and without violating the
Fourth Amendment, if the State can show that each of four factors are present, and
the defendant fails to meet his or her burden on two additional factors. See id. at
2531, 2539 (“Thus, when a driver is unconscious, the general rule is that a warrant
is not needed.”) The four factors that the State bears the burden to show are: (1) law
enforcement has probable cause to believe that the driver has committed a “drunk-
driving offense”; (2) the driver is, at pertinent times, unconscious or in a stupor;
(3) the driver’s unconscious state or stupor requires that he or she be taken to a

3
Mitchell, 139 S. Ct. 2525, is a plurality opinion in that four Justices joined in the quoted
portions of Mitchell. See id. at 2529. Justice Thomas did not join the four-justice plurality, but
concluded that the dissipation of alcohol always presents an exigent circumstance in an OWI case.
Id. at 2539 (Thomas, J., concurring); see also State v. Prado, No. 2016AP308-CR, ¶28, slip op.
recommended for publication (WI App June 25, 2020). Justice Thomas advanced a broader
reasoning in his concurrence than the reasoning in the plurality opinion written by Justice Alito.
Accordingly, the narrowest grounds supporting the judgment in Mitchell were those offered by the
plurality. People v. Eubanks, 2019 IL 123525, *13 n.6 (“Because Justice Alito’s opinion is based
on a narrower ground, it represents the Court’s holding.”); accord Commonwealth v. Trahey, No.
38EAP2018, 2020 WL 1932770, *10 n.11 (Pa. April 22, 2020); see Marks v. U.S., 430 U.S. 188,
193 (1977) (stating “[w]hen a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds ...” (quoted
source omitted)); see also June Med. Servs. v. Russo, Nos. 18-1323 and 18-1460, 2020 WL
3492640, at *23 n.1 (U.S. June 29, 2020) (Roberts, C.J., concurring).

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No. 2017AP43-CR

hospital or similar facility; and (4) the driver is taken to the hospital or similar
facility before law enforcement has a “reasonable opportunity” to administer a
standard evidentiary breath test.4 See id. at 2539.

¶30 If the State meets its burden to show that the previously-mentioned
four factors are present, the defendant establishes that a search warrant is necessary
for a blood draw of an unconscious driver if the defendant is “able to show” that:
(1) his or her blood “would not have been drawn if police had not been seeking BAC
information” about the driver’s blood alcohol content; and (2) law enforcement
could not have reasonably judged that a warrant application “would interfere with
other pressing needs or duties.”5 Id. We take up each of the Mitchell factors, below,
starting with the four factors which must be shown by the State.

III. Mitchell Factors For Which the State Has the Burden.

¶31 The first factor concerns whether law enforcement had probable cause
to believe that Richards committed a “drunk-driving offense.” See id. at 2539. The
circuit court concluded that there was probable cause that Richards had operated a
motor vehicle while intoxicated. Richards agrees with the circuit court’s conclusion
4
Generally, the State bears the burden of proving exigent circumstances that justify a
warrantless blood draw, State v. Kennedy, 2014 WI 132, ¶34, 359 Wis. 2d 454, 856 N.W.2d 834,
and Mitchell does not change the placement of that burden as to the four factors set forth above in
¶29. However, Mitchell’s holding that a defendant must “show” the next two factors mentioned in
¶30 places the burden on Richards to establish those factors. See Mitchell, 139 S. Ct. at 2539.
Richards does not question that Mitchell requires that a defendant “show” that two factors are
present in order to prevail on an exigent circumstances argument in this factual context if the State
meets its burden.
5
Richards recognizes in his supplemental briefing to this court that the U.S. Supreme
Court remanded Mitchell to give Mitchell an opportunity to establish those two factors enunciated
in Mitchell. See Mitchell, 139 S. Ct. at 2539. However, Richards does not request a remand to the
circuit court for a further evidentiary hearing to allow Richards to attempt to establish those factors.

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No. 2017AP43-CR

that there was probable cause that Richards operated a vehicle while intoxicated.
We conclude that this factor is satisfied by the State.

¶32 The second Mitchell factor is whether Richards was unconscious at
pertinent times.6 See id. Richards does not dispute that he was in and out of
consciousness at the scene of the accident and lost consciousness in the ambulance
on the way to the Wild Rose Hospital. But, Richards contends that there was no
evidence that he was unconscious at the time of the blood draw while he was in the
ambulance at the Wild Rose Hospital.

¶33 The circuit court found that, while being transported to the Wild Rose
Hospital, Richards lost consciousness, and at the time of the blood draw Richards
was unconscious in the ambulance outside the Wild Rose Hospital while waiting to
be transported by helicopter. More specifically, the circuit court found: “And
[Deputy McElroy] at that time [when McElroy arrived at the Wild Rose Hospital]
recognizes that the implied consent issues – are, essentially, a nullity because
[Richards] is unconscious, incapable of even being addressed.”

¶34 We uphold the circuit court’s findings of fact unless those are clearly
erroneous. Tullberg, 359 Wis. 2d 421, ¶27. We conclude that the circuit court’s
finding that Richards was unconscious outside the Wild Rose Hospital (which
included the time of the blood draw) is not clearly erroneous. The circuit court
could, and did, reasonably determine based on the facts in the record that, in light
of Richards’ condition and severe injuries, Richards’ state of unconsciousness
continued from the time Richards was being transported to the Wild Rose Hospital
until the blood draw outside the Wild Rose Hospital. Based upon our consideration

6
The parties do not discuss whether Richards was in a “stupor,” and we ignore that
language in the factor.

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No. 2017AP43-CR

of the circuit court’s findings, which are not clearly erroneous, we conclude that the
State has met its burden on the second factor.

¶35 The next Mitchell factor is whether Richards’ unconscious state
required that he be taken to a hospital. See Mitchell, 139 S. Ct. at 2539. Richards
does not argue to the contrary in this court and, in light of the severe injuries
Richards sustained in the accident, the only reasonable conclusion is that Richards’
condition required him to be immediately taken to the hospital at Wild Rose and
then on to the hospital in Neenah. We conclude that the State has satisfied the third
factor.

¶36 The fourth Mitchell factor is whether Richards was taken to the Wild
Rose Hospital before law enforcement had a “reasonable opportunity to administer
a standard evidentiary breath test.” See id. Richards argues that this factor is not
satisfied by the State for two reasons.

¶37 Initially, Richards contends that a standard evidentiary breathalyzer
test could have been given at the time of the blood draw because he was conscious
at that time. However, as already discussed, the circuit court found that Richards
was unconscious at the time of the blood draw outside the Wild Rose Hospital, and
we have concluded that this finding is not clearly erroneous. As a result, that
contention fails.

¶38 Next, Richards asserts that, at the accident scene, “Richards was
conscious when police arrived leaving no excuse for not conducting a breath test.”
The circuit court made detailed findings which concern whether the deputy had a
“reasonable opportunity” to administer a standard evidentiary breath test to

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No. 2017AP43-CR

Richards at the accident scene before Richards was taken by ambulance to the Wild
Rose Hospital:7

[T]he entirety of Officer McElroy’s focus and that of his
fellow officer at the time they were at this scene was in
caring for an individual who required medical care that
virtually immediately was recognized to necessitate not only
transport, but also use of ThedaStar [the name of the medical
air transport to Theda Clark Medical Center]….

Their focus at this point is not on investigating an
impaired-driving incident. It is upon getting an individual
who is in a life-threatening situation the requisite level of
medical treatment, extract[ing] him safely from the vehicle
… and then transported to a locale where he could receive
medical treatment and ultimately be transported to an
appropriate medical facility.

….

Frankly, I think that the public that Deputy McElroy
serves would be aghast if they were to learn that in this
situation, with an individual facing life-threatening
conditions, his focus was on investigating an impaired-
driving event rather than getting the individual medical
treatment.

¶39 Richards’ vague and conclusory contention that law enforcement had
a reasonable opportunity to give Richards a “breath test” at the accident scene gives
us no basis to overturn the detailed findings of fact by the circuit court that address
this factor. Those findings are not clearly erroneous. Based on these findings, we
conclude that there was no reasonable opportunity for law enforcement to give
Richards a breath test, evidentiary or otherwise, at the accident scene.

7
The Supreme Court considers a “standard evidentiary breath test” to be a test with
“evidence-grade breath testing machinery” which may be accomplished at a police station. See
Mitchell, 139 S. Ct. at 2534. We observe that there is a distinction between that test and a PBT
(preliminary breath test), which is not of evidentiary quality and is sometimes used by law
enforcement at the scene of an alleged OWI offense. Richards never explains whether his
abbreviated argument about a “breath test” refers to a PBT or a breathalyzer test of evidentiary
quality that may be done at a police station.

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No. 2017AP43-CR

¶40 Accordingly, the State has satisfied the four Mitchell factors for which
it has the burden. See id.

¶41 The focus then shifts, pursuant to Mitchell, for Richards to “show”
both of two factors to negate the conclusion that there were exigent circumstances
and a warrant was not necessary for the blood draw. See id.

IV. Mitchell Factors For Which Richards Has the Burden.

¶42 The first of those factors is whether Richards can show that “his blood
would not have been drawn if police had not been seeking BAC information.” See
id. Richards contends that this court need not consider this factor because the
Mitchell factors apply only to unconscious drivers and, Richards asserts, he was
conscious at the time of the blood draw. As noted, we have rejected that contention.

¶43 Richards also asserts the following in regard to this factor, without
citation to the record or legal authorities: “Further, even if such a showing were
required, the record does not establish that Mr. Richards could not make” the
showing. We reject Richards’ assertion because it is entirely conclusory, and
Richards gives no basis in the record to support his assertion. This court will not
attempt to make or develop arguments on behalf of a party. See Industrial Risk
Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148,
769 N.W.2d 82 (stating “we will not abandon our neutrality to develop arguments”).
In addition, we are aware that, at the time the circuit court held the suppression
hearing, there was no burden on Richards to make this showing because the U.S.
Supreme Court had not yet set forth the Mitchell factors. However, as noted,
Richards does not request a remand to the circuit court for Richards to present
evidence on this factor.

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No. 2017AP43-CR

¶44 In light of Richards’ severe injuries, the only reasonable conclusion is
that blood would have been drawn from Richards at some point in the immediate
treatment of those injuries. Accordingly, we conclude that Richards has failed to
establish that factor.

¶45 Because Richards has failed to make the required showing on that
factor, we could end our analysis here. However, for completeness, we discuss the
final factor enunciated in Mitchell.

¶46 That factor is whether law enforcement “could not have reasonably
judged that a warrant application would interfere with other pressing needs or
duties.” See Mitchell, 139 S. Ct. at 2539. The findings of the circuit court that are
previously quoted in ¶38 inform our analysis on this factor, and we do not re-state
those here. The circuit court made additional findings of fact on this question, which
we now quote:

[Deputy McElroy] is, himself, in transport to [the Wild Rose
Hospital] with the following knowledge; that Mr. Richards
has lost consciousness, is an individual who is, to any
layperson with any degree of reason, in a life-threatening
situation … [and] Officer McElroy has now learned that this
individual has multiple impaired-driving convictions, that
number being, at the very least, three, perhaps more, the
situation enhancing the probable cause that he had already
had at the scene of the event.

….

… And he must confront the arrival of a medical
transport by helicopter, which is going to take the individual
from the opportunity to have blood withdrawn to another
locale….

The warrant process takes 20 to 30 minutes between
preparing the paperwork that is necessary, contacting the
Court to obtain the warrant … ensuring that there is a
recording of the conversation with the Court, and then,
ultimately, obtaining the necessary warrant by paperwork
from the Court before the warrant is executed.

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No. 2017AP43-CR

That series of events and the time it would have taken
could very well and probably would have resulted in
Mr. Richards being transported from the scene of the
hospital by ThedaStar prior to the time that the Court would
have even authorized the issuance of the warrant, assuming
that Officer McElroy was doing nothing in this whole
process but trying to obtain a warrant at the time of his
arrival at the hospital.

….

… [I]n this case-specific, fact-driven situation, I find
it has been established clearly and convincingly that there
were exigent circumstances necessitating the warrantless
blood-draw that was taken of Mr. Richards.

¶47 Richards argues that he has met his burden on this factor because:
Deputy McElroy found signs of intoxication of Richards immediately upon
contacting Richards at the accident scene; there is a “easy and swift warrant
procedure in Waushara County” which takes only 20 to 30 minutes to complete; the
accident involved only one car rather than multiple cars; Richards’ car was in a ditch
and “safely off the road” relative to other traffic; and Office McElroy at the scene
was assisted by a backup officer after a time and assisted by EMS personnel.

¶48 We reject Richards’ argument which is based on selected facts.
Instead, we agree with the circuit court that, considering all pertinent facts, those
circumstances would cause a search warrant application to interfere with other
pressing duties of law enforcement. Richards’ severe injuries, safety needs at the
accident scene, and the tight window of time before Richards was taken away by
helicopter did not allow law enforcement to both obtain a search warrant and meet
“other pressing needs or duties.” See id. We see no basis to conclude that the circuit
court’s findings of fact on this question are clearly erroneous, or that the court’s
overall determination based on those facts was incorrect.

17
No. 2017AP43-CR

¶49 In sum, the State has established the four Mitchell factors for which it
has the burden. Also, Richards has failed to show that two other factors, just
discussed, were present. Therefore, pursuant to the rule set forth in Mitchell,
exigent circumstances have been established and the warrantless blood draw from
Richards did not violate the Fourth Amendment.8

CONCLUSION

¶50 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed.

8
We need not discuss Richards’ argument that WIS. STAT. § 343.305, the implied consent
statute, is unconstitutional because that argument becomes germane only if there is no warrant
exception based on exigent circumstances. See Prado, No. 16AP308-CR, ¶64 (“Thus, because the
incapacitated driver provision [of WIS. STAT. § 343.305] purports to authorize warrantless searches
that do not fit within any exception to the warrant requirement, the searches it authorizes will
always violate the Fourth Amendment, unless the searches are justified by a separate warrant
exception.”) For similar reasons, we need not discuss the State’s argument that the good faith
exception to the warrant requirement applies in these circumstances.

18