State v. Jennifer A. Jenkins

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.
March 1, 2022
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. 2020AP1243-CR Cir. Ct. No. 2019CT44

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JENNIFER A. JENKINS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Outagamie
County: MITCHELL J. METROPULOS, Judge. Affirmed.

¶1 HRUZ, J.1 Jennifer Jenkins appeals a judgment convicting her of
operating a motor vehicle while intoxicated (“OWI”), as a second offense. Jenkins
argues the circuit court erred by denying her motion to suppress evidence, which

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP1243-CR

was premised on two bases: (1) the arresting officer unlawfully stopped her
vehicle outside of the officer’s jurisdiction; and (2) the blood draw performed on
her was unreasonable under the circumstances. We reject Jenkins’ arguments and
affirm.

BACKGROUND

¶2 According to the criminal complaint, around midnight on
October 12, 2018, Officer Adam Miller, a patrol officer with the Grand Chute
Police Department, stopped Jenkins’ vehicle in the City of Appleton after he had
observed, among other things, her vehicle cross the centerline of Wisconsin
Avenue in the neighboring Town of Grand Chute. After completing field sobriety
tests and submitting to a preliminary breath test, Jenkins was arrested, and she
consented to a blood draw. A blood sample was obtained and indicated a “[blood]
alcohol concentration of .178 g/100 mL.” The State charged Jenkins with one
count of second-offense OWI and one count of second-offense operating with
prohibited alcohol concentration.

¶3 Jenkins moved to suppress evidence obtained from the traffic stop
and from the blood draw. She argued that Officer Miller was not in “fresh
pursuit” of her vehicle at the time of the traffic stop, rendering the stop unlawful
because Miller did not have authority to stop Jenkins outside of Grand Chute.
Jenkins also asserted that the blood draw was unreasonable under the
circumstances. Specifically, Jenkins alleged:

During the blood draw, the phlebotomist encountered
difficulties in harvesting a blood specimen from
Ms. Jenkins’ body. Such difficulties were not [t]he product
of fault or contribution by Ms. Jenkins but rather were
seemingly the product of her natural bodily structure (i.e.,
challenges in finding a vein with adequate blood supply).
Ultimately, Ms. Jenkins was subject to a needle being

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No. 2020AP1243-CR

inserted into her body at three (3) different locations and
the process was unusually long in duration. The overall
blood draw caused more pain and discomfort as to
Ms. Jenkins than the ordinary person subject to a blood
draw. A sample of her blood, albeit below the standard
amount in volume required by the Laboratory of Hygiene,
was collected. Officer Miller was present for and
witnessed the blood draw procedure.

¶4 The circuit court held an evidentiary hearing on Jenkins’ motion.
Officer Miller testified that he first observed Jenkins’ vehicle while it was
traveling eastbound on Wisconsin Avenue. He thought her vehicle appeared to be
traveling “a little bit fast,” but he was unable to confirm its speed. Miller testified
that he began following Jenkins’ vehicle and observed both of her vehicle’s
driver’s side tires cross “the centerline at Wisconsin [Avenue] and Popp [Lane],”
with “at least a third of the vehicle” entering the oncoming lane of traffic. Miller
stated that he continued following Jenkins’ vehicle and observed its driver struggle
to “maintain[] a straight line in its lane of traffic,” despite staying within its lane.
He further recalled, however, that about one-third of Jenkins’ vehicle again
crossed the centerline “[a]t the intersection of Badger [Avenue] and Wisconsin
[Avenue].” Miller testified that he then activated his vehicle’s emergency lights,
and that Jenkins eventually pulled over her vehicle.

¶5 Officer Miller also testified that once Jenkins was arrested, he took
her to ThedaCare Regional Medical Center in Appleton for a blood test. Miller
recalled that “Jenkins was not necessarily cooperative with [the phlebotomist]”
while the phlebotomist attempted to collect a blood sample from Jenkins. When
asked if he could be more specific, Miller testified that Jenkins was not following
the phlebotomist’s directions. However, he could not specifically recall what
directions Jenkins had failed to follow. Miller also could not recall how long it
took the phlebotomist to obtain the blood sample from Jenkins.

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No. 2020AP1243-CR

¶6 On cross-examination, Officer Miller testified that Popp Lane was
approximately one mile away from the border of Grand Chute and Appleton.
Miller stated that he decided to stop Jenkins when her vehicle crossed the
centerline for the first time, but he did not do so immediately because “[he] was
obtaining evidence.” He also testified that Jenkins had entered Appleton before
her vehicle crossed the centerline for the second time, and he estimated that he
followed Jenkins’ vehicle for approximately one mile before activating his
vehicle’s emergency lights. Jenkins’ counsel did not ask Miller any questions
regarding the blood draw, and Jenkins did not call any witnesses on her behalf at
the hearing.

¶7 Following the hearing, Jenkins submitted a brief that included a
“screenshot” that she had obtained from Google Maps depicting where
Wisconsin Avenue crosses Popp Lane. Based on that screenshot, Jenkins asserted
that there is “a raised concrete center median between the opposing lanes of
travel” on Wisconsin Avenue.2 Jenkins argued that “[b]ased on this physical
feature, it would be impossible for about one-third of [her vehicle] to cross the
centerline into the opposing lane,” and that Officer Miller’s testimony was
therefore “incredible as a matter of law.”

¶8 Jenkins also filed a supplemental brief regarding a video recording
obtained from a camera in Officer Miller’s police vehicle. Jenkins asserted that
the video showed her vehicle had crossed the centerline roughly two and one-half
blocks past the intersection of Wisconsin Avenue and Badger Avenue, and that

2
To put the “concrete center median” into perspective, the median appears to be about
the height of a typical curb and less than the width of a traffic lane.

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No. 2020AP1243-CR

only the width of her tires crossed the centerline. Jenkins further asserted that the
video demonstrated that Miller activated his vehicle’s emergency lights at the
intersection of Wisconsin Avenue and Mason Street—approximately one-half mile
past the Grand Chute border in Appleton.

¶9 The circuit court viewed the video at a later hearing and then denied
Jenkins’ motion to suppress in an oral ruling. The court found that the video
“appears to be consistent with the testimony of Officer Miller.” The court also
found that the pursuit lasted approximately two minutes “on the video,” and the
court recognized that Miller did not utilize “any type of unnecessary … or
prolonged surveillance into the other jurisdiction.” The court further found that
“[t]he original violation was observed by the officer in Grand Chute,” which
occurred before the camera had started recording. The court concluded that Miller
“exercised reasonable discretion by continuing to follow the subject vehicle into
the City of Appleton.”

¶10 In regard to the blood draw, the circuit court noted that neither the
defendant nor the phlebotomist had testified. The court recounted Officer Miller’s
testimony that “there was a blood draw, and [that] there may have been some
issues to obtain the blood by the phlebotomist, but she was able to [obtain the
blood sample].” The court further noted that it could not “speculate as to what the
defendant would have testified to, or even the phlebotomist, so I just have to rely
on what the testimony was by Officer Miller with regards to that issue.” The court
concluded there was “no evidence to indicate that there was any type of abuse or a
violation of [Jenkins’] Fourth Amendment rights with regards to the
administration of that blood test ….”

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No. 2020AP1243-CR

¶11 Jenkins subsequently pled no contest to second-offense OWI, and
the remaining count was dismissed outright. The circuit court sentenced Jenkins
to forty days’ jail time, of which thirty days were stayed pending completion of an
OWI treatment program. Jenkins now appeals.3

DISCUSSION

¶12 On appeal, Jenkins renews her suppression arguments regarding the
traffic stop and the subsequent blood draw. In evaluating a circuit court’s decision
on a motion to suppress, we uphold the circuit court’s findings of fact unless they
are clearly erroneous. State v. Dobbs, 2020 WI 64, ¶28, 392 Wis. 2d 505, 945
N.W.2d 609. We then independently apply applicable constitutional principles to
those facts. Id.

I. Traffic stop

¶13 Before addressing Jenkins’ main legal arguments, we first address
her challenge to a key factual finding. Jenkins argues that part of Officer Miller’s
testimony was “incredible as a matter of law” because it was impossible for her
vehicle to have crossed the centerline at Wisconsin Avenue and Popp Lane due to
a “concrete median” that separated the opposing traffic lanes on Wisconsin
Avenue. She contends that we should take judicial notice of the concrete median
depicted in her Google Maps screenshot and conclude that “the circuit court’s
factual finding that Ms. Jenkins’ [vehicle] crossed the centerline at the intersection
of Wisconsin Avenue and Popp [Lane] is clearly erroneous.”

3
An order denying a motion to suppress evidence may be reviewed on appeal
notwithstanding the defendant’s guilty or no-contest plea. WIS. STAT. § 971.31(10).

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No. 2020AP1243-CR

¶14 The State identifies several concerns regarding the reliability of the
screenshot obtained from Google Maps, including questions regarding when the
image was recorded and whether the image accurately depicts the intersection as it
was in October 2018. Ultimately, we need not decide whether judicial notice is
appropriate here because even if we did take judicial notice of the concrete
median, we would nonetheless conclude that the circuit court’s finding that
Jenkins had committed a traffic violation in Grand Chute was not clearly
erroneous.4

¶15 Contrary to Jenkins’ arguments, the circuit court did not specifically
find that Jenkins’ vehicle crossed the centerline precisely at the intersection of
Wisconsin Avenue and Popp Lane. Rather, the court found that Officer Miller
observed “[t]he original violation … in Grand Chute.” (Emphasis added.) The
court’s finding of a traffic violation—i.e., Jenkins’ vehicle crossing the centerline
of Wisconsin Avenue—therefore encompasses more area than just at the
intersection of Wisconsin Avenue and Popp Lane. This breadth of the court’s
finding is significant in the context of Miller’s testimony and the role of the
purported concrete median.

¶16 For testimony to be incredible as a matter of law, it must be
inherently or patently incredible; that is, “in conflict with the uniform course of
nature or with fully established or conceded facts.” See State v. Vollbrecht, 2012
WI App 90, ¶28 n.18, 344 Wis. 2d 69, 820 N.W.2d 443 (citation omitted).

4
We do note, however, that relying on “general distances” obtained from Google Maps,
which Jenkins correctly notes that this court had done in the past, see State v. Smith,
No. 2016AP2453-CR, unpublished slip op. ¶3 n.1 (WI App Feb. 13, 2018), is qualitatively
different from relying on street-level images from Google Maps.

7
No. 2020AP1243-CR

Officer Miller testified that Jenkins’ vehicle crossed the centerline “at Wisconsin
and Popp.” On cross-examination, Miller was asked how long it took him from
the time he first began following Jenkins “to observe around Wisconsin Avenue
and Popp [Lane] that … [Jenkins] crossed the centerline?” (Emphasis added.)
Miller testified, “It’s about a half a block.”

¶17 Officer Miller was never asked any follow-up or clarifying questions
regarding the precise location of that incident, or whether it occurred directly in
the intersection of Wisconsin Avenue and Popp Lane. Nor was he confronted with
the image of the concrete median upon which Jenkins now relies. Although one
could rely on Miller’s limited testimony to find that he had observed Jenkins’
vehicle cross the centerline at the intersection of Wisconsin Avenue and Popp
Lane, one could also reasonably infer that Miller provided an approximate location
of where Jenkins’ vehicle crossed the centerline.

¶18 With that in mind, the existence of a concrete median at the
intersection of Wisconsin Avenue and Popp Lane does not render it impossible for
Jenkins’ vehicle to have crossed the centerline of Wisconsin Avenue somewhere
near Popp Lane. Significantly, the “Street View” on Google Maps—of which
Jenkins requested that this court take judicial notice—shows that the concrete
median only continued approximately 200 feet on Wisconsin Avenue past its
intersection with Popp Lane. Moreover, the median stopped well before the next
cross street of Elberg Avenue, which is over one-tenth of a mile east of where the
concrete median ended. Based on these facts, it would not have been impossible
or implausible for Jenkins’ vehicle to cross the centerline of Wisconsin Avenue
soon after the concrete median ended. Nor would it have been unreasonable to
describe such incident as having occurred “at” Wisconsin Avenue and Popp Lane.
Officer Miller’s testimony was therefore not in conflict with the uniform course of

8
No. 2020AP1243-CR

nature or with fully established or conceded facts, and it was not incredible as a
matter of law. See Vollbrecht, 344 Wis. 2d 69, ¶28 n.18. Accordingly, the circuit
court’s finding of a traffic violation in Grand Chute was not clearly erroneous.
See WIS. STAT. § 346.05(1); see also State v. Popke, 2009 WI 37, ¶¶13-17, 317
Wis. 2d 118, 765 N.W.2d 569.

¶19 Moving on to Jenkins’ legal challenges, Jenkins argues that
Officer Miller did not comply with WIS. STAT. § 175.40(2) when he stopped her
vehicle. Section 175.40(2) provides that “[f]or purposes of civil and criminal
liability, any peace officer may, when in fresh pursuit, follow anywhere in the
state and arrest any person for the violation of any law or ordinance the officer is
authorized to enforce.” Jenkins first contends that under § 175.40(2), an officer
must have probable cause—as opposed to reasonable suspicion—before the
officer may arrest a person outside of the officer’s jurisdiction. Jenkins further
argues that Miller did not have probable cause to believe that Jenkins had violated
any law before stopping her vehicle.

¶20 Jenkins’ argument that the officer lacked probable cause is premised
entirely on her argument that Officer Miller’s testimony regarding the traffic
violation occurring in Grand Chute is incredible as a matter of law, and that the
circuit court’s finding regarding that testimony was clearly erroneous. She does
not dispute, however, that Miller had probable cause to believe a traffic violation
had occurred if we uphold the court’s findings. Because the court found that
Miller observed Jenkins commit a traffic violation when she allowed her vehicle to
cross the centerline of Wisconsin Avenue in Grand Chute—and because that
finding was not clearly erroneous—we conclude that Miller had probable cause to
believe a traffic violation had occurred. See WIS. STAT. § 346.05(1); Popke, 317
Wis. 2d 118, ¶¶13-17. We therefore do not need to address Jenkins’ argument that

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No. 2020AP1243-CR

WIS. STAT. § 175.40(2) requires that Miller have probable cause to arrest her
outside of Grand Chute as opposed to reasonable suspicion to initiate a traffic stop,
because Miller had probable cause here. See Turner v. Taylor, 2003 WI App 256,
¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (we need not address all issues raised by
the parties if one is dispositive).

¶21 Jenkins next argues that Officer Miller “did not act in valid fresh
pursuit” under WIS. STAT. § 175.40(2). For purposes of § 175.40(2), an officer is
in “fresh pursuit” when: (1) the officer acted without unnecessary delay; (2) the
pursuit was continuous and uninterrupted; and (3) a reasonably short period of
time existed between the commission of the offense, the commencement of the
pursuit, and the apprehension of the suspect. See State v. Haynes, 2001 WI App
266, ¶6, 248 Wis. 2d 724, 638 N.W.2d 82. Jenkins does not contest that Miller’s
pursuit of her vehicle was continuous and uninterrupted, but she argues that
Miller’s actions do not satisfy the remaining two criteria for fresh pursuit.

¶22 As to the first criterion for fresh pursuit, Jenkins argues that “[t]he
record is devoid of any factors whatsoever to justify or excuse the delay
undertaken by Officer Miller [in stopping her vehicle] or otherwise render the
delay as necessary.” We disagree. At most, Officer Miller followed Jenkins’
vehicle for approximately 1.4 miles, including 0.4 miles in Appleton, after
observing Jenkins’ vehicle cross the centerline of Wisconsin Avenue for the first

10
No. 2020AP1243-CR

time.5 This minimal delay in stopping Jenkins, however, was not “unnecessary”
when considered in light of Miller’s explanation for the delay, which Jenkins
ignores in her arguments. Miller testified that he did not immediately stop Jenkins
because he “was obtaining evidence.” That decision to collect additional
evidence, for a short period of time, was reasonable under the facts known to
Miller because he had observed Jenkins’ vehicle travel “a little bit fast” and cross
the centerline of Wisconsin Avenue. Under those circumstances, it would not be
unreasonable for Miller to question whether Jenkins was impaired. Nor would it
be “unnecessary” for Miller to follow Jenkins’ vehicle to obtain additional
evidence. In fact, such delay allowed Miller to further investigate Jenkins’ driving
behavior, to collect additional evidence of impaired driving—including observing
Jenkins’ vehicle weave in its lane and cross the centerline a second time—and to
ultimately strengthen the subsequent prosecution of Jenkins. In short, Miller did
not unnecessarily delay in stopping Jenkins.

¶23 Jenkins also argues, citing Welsh v. Wisconsin, 466 U.S. 740
(1984), that the third criterion for fresh pursuit requires that we consider the
gravity of the offense in the context of the “temporal proximities” of the
commission of the offense, the commencement of the pursuit, and the

5
Jenkins asserts, based on the video from Officer Miller’s police vehicle, that Miller
followed her vehicle for 1.4 miles, including 0.4 miles into Appleton. As the State aptly
observes, however, that video is not part of the appellate record. It was Jenkins’ responsibility, as
the appellant, to ensure completion of the appellate record. See Gaethke v. Pozder, 2017 WI App
38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381. When an appellate record is incomplete in
connection with an issue raised by the appellant, we must assume that the missing material
supports the circuit court’s ruling. Id. Without the video, we could reject Jenkins’ assertion that
Miller followed her vehicle a total of 1.4 miles because the only evidence in the record is Miller’s
testimony that he followed Jenkins’ vehicle for approximately one mile. However, we will
assume the truth of Jenkins’ assertion because the additional 0.4 miles does not alter our ultimate
conclusion.

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No. 2020AP1243-CR

apprehension of the suspect. Jenkins acknowledges that such temporal proximities
were “not particularly long in duration,” but she nevertheless argues that her
crossing of the centerline on Wisconsin Avenue was a minor offense that did not
justify an extra-jurisdictional stop.

¶24 Jenkins’ reliance on Welsh is misplaced. The Welsh Court held, in
the context of an exigent-circumstances analysis, that “an important factor to be
considered when determining whether any exigency exists is the gravity of the
underlying offense for which the arrest is being made.” Id. at 753. The Court did
not address the fresh pursuit doctrine or apply its holding to such cases.
Moreover, Jenkins has not identified any legal authority that has considered the
gravity of the offense in the context of fresh pursuit, and we therefore decline to
do so here.

¶25 We agree with Jenkins’ assessment that the relevant time period was
“not particularly long in duration.” In total, Officer Miller followed Jenkins’
vehicle for approximately 1.4 miles before initiating the traffic stop. The time
period was therefore reasonably short between Jenkins’ vehicle crossing the
centerline of Wisconsin Avenue in Grand Chute, Miller commencing his pursuit of
Jenkins, and his stopping Jenkins’s vehicle. See Haynes, 248 Wis. 2d 724, ¶7
(concluding that a short period of time existed between a violation and the
apprehension of the defendant when police followed the defendant’s vehicle for
two miles).

¶26 In sum, Officer Miller was in “fresh pursuit” when he stopped
Jenkins vehicle in Appleton. Miller therefore had authority under WIS. STAT.
§ 175.40(2) to stop and arrest Jenkins.

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No. 2020AP1243-CR

¶27 Although Officer Miller had authority under WIS. STAT. § 175.40(2)
to stop and arrest Jenkins, we also address the State’s alternative—and
independent—argument regarding whether suppression would have been the proper
remedy in this case. Suppression is required only when evidence is obtained in
violation of a constitutional right or in violation of a statute providing suppression
as a remedy. State v. Keith, 2003 WI App 47, ¶9, 260 Wis. 2d 592, 659 N.W.2d
403.

¶28 The State argues that suppression would not be the proper remedy
because the traffic stop did not violate Jenkins’ constitutional rights and because
WIS. STAT. § 175.40(2) does not require suppression. In response, Jenkins
contends that the State has forfeited this argument by failing to raise it in the
circuit court. Alternatively, she summarily argues that there was a constitutional
violation because an arrest is unreasonable when the officer does not have the
statutory authority to make the arrest. She further contends, citing Ross v. Neff,
905 F.2d 1349 (10th Cir. 1990), that other courts have held “[a] warrantless arrest
executed outside of the arresting officer’s jurisdiction is analogous to a warrantless
arrest without probable cause.” Id. at 1354.

¶29 We reject Jenkins’ arguments. First, “it is well-established law in
Wisconsin that an appellate court may sustain a lower court’s ruling ‘on a theory
or on reasoning not presented to the lower court.’” See Blum v. 1st Auto & Cas.
Ins. Co., 2010 WI 78, ¶27 n.4, 326 Wis. 2d 729, 786 N.W.2d 78 (citation omitted).
As the respondent, the State may therefore argue for the first time on appeal that
suppression is not the appropriate remedy. See id.

¶30 Second, beyond citing Ross and making a general statement that
extra-jurisdictional arrests are unreasonable when the officer lacks statutory

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No. 2020AP1243-CR

authority to arrest, Jenkins does not further develop her argument that a
constitutional violation has occurred here in the context of this basic, lawful traffic
stop. In addition, Ross is not persuasive or instructive. The Tenth Circuit has
recognized that Ross is limited to “the unique factual circumstances that spawned
it: that is, a warrantless arrest by state police on federal tribal land.” United
States v. Jones, 701 F.3d 1300, 1312 (10th Cir. 2012). Moreover, the United
States Supreme Court has concluded that “warrantless arrests for crimes
committed in the presence of an arresting officer are reasonable under the
Constitution, and that while States are free to regulate such arrests however they
desire, state restrictions do not alter the Fourth Amendment’s protections.”
Virginia v. Moore, 553 U.S. 164, 176 (2008). Therefore, even if Officer Miller
lacked authority under WIS. STAT. § 175.40(2) to arrest Jenkins, Miller’s lack of
statutory authority does not render the traffic stop and subsequent arrest per se
unreasonable under the Fourth Amendment to the United States Constitution or
unreasonable under article I, section 11 of the Wisconsin Constitution.6

¶31 Finally, Jenkins does not in any substantive way refute the State’s
argument that WIS. STAT. § 175.40(2), on its own, does not provide suppression as
a remedy, and she therefore concedes that issue. See Charolais Breeding
Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979) (unrefuted arguments may be deemed conceded). We therefore conclude
that even if Officer Miller lacked authority under WIS. STAT. § 175.40(2) to stop
Jenkins’ vehicle in Appleton, suppression would not be the appropriate remedy

6
Although Jenkins also relies on article I, section 11 of the Wisconsin Constitution, she
does not develop any argument that the Wisconsin Constitution provides broader protection in
this case than the Fourth Amendment to the United States Constitution. We therefore treat both
as providing the same protection for the purposes of this case.

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No. 2020AP1243-CR

here.7 In all, the circuit court did not err by denying Jenkins’ motion to suppress
evidence obtained from the traffic stop.

II. Blood draw

¶32 Jenkins also argues that the State failed to meet its burden of proving
that the blood draw was reasonable under the circumstances. She contends that
the State did not “materially controvert” the facts asserted in her motion to
suppress. She also argues that the circuit court improperly applied the burden of
proof when it concluded that there was no evidence of abuse or of a violation of
her constitutional rights.

¶33 We reject Jenkins’ arguments. “Although the State has the ultimate
burden of proof on suppression issues, the defendant has the burden of production
and must produce some evidence that makes a prima facie showing that the State
violated one of his [or her] rights.” State v. Jackson, 229 Wis. 2d 328, 336, 600
N.W.2d 39 (Ct. App. 1999); see also State v. Noble, 2002 WI 64, ¶19, 253
Wis. 2d 206, 646 N.W.2d 38.

¶34 Here, Jenkins did not testify, present any evidence, or cross-examine
Officer Miller regarding the blood draw. Miller’s testimony is the only evidence
in the record on this issue, and he testified that he took Jenkins to a hospital for a
blood test; that a phlebotomist collected Jenkins’ blood sample; that he could not

7
We nonetheless note that in State v. Caster, No. 2015AP1965-CR, unpublished slip op.
¶31 (WI App Oct. 12, 2016), we concluded, under the facts of that case, that suppression was not
the appropriate remedy for an extra-jurisdictional stop involving no constitutional violation,
regardless of whether the officer was in fresh pursuit under WIS. STAT. § 175.40(2).

Unpublished opinions authored by a single judge and issued on or after July 1, 2009, may
be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

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No. 2020AP1243-CR

recall how long it took the phlebotomist to collect the blood sample; that “Jenkins
was not necessarily cooperative with [the phlebotomist]”; and that Jenkins failed
to follow the phlebotomist’s directions.

¶35 No court could conclude or infer from this evidence that the blood
draw was unreasonable under the circumstances. Indeed, the record contains no
evidence that the phlebotomist had to insert a needle into Jenkins’ arm multiple
times, that the blood draw took an inordinate amount of time, that Jenkins
displayed or experienced any signs of pain or discomfort during the process, or
that Jenkins experienced any adverse health effects. Blood draws are
“commonplace in these days of periodic physical examination and experience with
them teaches that the quantity of blood extracted is minimal, and that for most
people the procedure involves virtually no risk, trauma, or pain.” State v. Kozel,
2017 WI 3, ¶42, 373 Wis. 2d 1, 889 N.W.2d 423 (quoting Schmerber v.
California, 384 U.S. 757, 771 (1966)).

¶36 Although Jenkins faults the State for not producing more evidence
regarding the manner in which the blood draw was performed, she never made—
or even attempted to make—a prima facie showing that the blood draw was
unreasonable. Accordingly, the facts here lead to only one conclusion: the blood
draw was reasonable under the circumstances. The circuit court therefore did not
err by denying Jenkins’ motion to suppress evidence obtained from the blood
draw.

By the Court.—Judgment affirmed.

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

16