State v. Craig R. Thatcher

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.
February 7, 2023
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. 2020AP1734 Cir. Ct. Nos. 2019TR4944
2019TR4946

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

CRAIG R. THATCHER,

DEFENDANT-RESPONDENT.

APPEAL from orders of the circuit court for St. Croix County:
SCOTT R. NEEDHAM, Judge. Affirmed.

¶1 GILL, J.1 Craig Thatcher was cited for operating a motor vehicle
with a prohibited alcohol concentration (PAC), as a first offense. The circuit court

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. 2020AP1734

granted Thatcher’s motion to suppress the results of a chemical test of his breath.
The court later denied the State’s motion to reconsider that decision. The court
subsequently granted Thatcher’s motion to suppress the results of a secondary
chemical test of his blood, and it then granted Thatcher’s motion to dismiss the
PAC citation.

¶2 The State now appeals, arguing that the circuit court erred by
granting Thatcher’s suppression motions and by denying the State’s motion for
reconsideration. We conclude that the court properly granted Thatcher’s motion to
suppress the results of his breath test based on the State’s failure to timely file a
brief disputing Thatcher’s arguments. We further conclude that the court did not
erroneously exercise its discretion by denying the State’s motion to reconsider that
decision. Finally, we conclude that the court properly granted Thatcher’s motion
to suppress the results of the secondary blood test. We therefore affirm.

BACKGROUND

¶3 On November 2, 2019, a motorist called law enforcement and
reported that a black Cadillac SUV with a specific license plate number was “all
over the road deviating lanes.”2 Wisconsin State Patrol Trooper Damien Wood
responded to the dispatch notice. After locating the SUV and observing the same
driving behavior reported by the citizen witness, Wood initiated a traffic stop.
Wood identified Thatcher as the driver of the SUV, and following further

2
These background facts are taken from the testimony and other evidence introduced at
the July 13, 2020 hearing on Thatcher’s first suppression motion. These facts are not disputed for
purposes of this appeal. Both Thatcher and the state patrol trooper who stopped Thatcher’s
vehicle testified at the July 13 hearing. A video of the traffic stop was also introduced into
evidence at that hearing.

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investigation, he placed Thatcher under arrest for operating a motor vehicle while
intoxicated (OWI).

¶4 The video of the traffic stop shows that after Wood placed Thatcher
under arrest, he told Thatcher:

Okay, just gotta do some paperwork here. So this is first
offense. It’s not a crime. Traffic forfeiture, like a bad
speeding ticket that nobody wants. So, what’s gonna
happen is I gotta issue a couple citations here. I have to
read you a form and depending on how all that goes,
[unintelligible] you should be able to just go to the jail,
book you through, and you’ll be able to get out tonight with
a sober driver. So, sound like a plan?

¶5 Several minutes later, Wood read Thatcher the Informing the
Accused Form (“ITA Form”) promulgated by the Wisconsin Department of
Transportation. The ITA Form contains information that a law enforcement
officer is statutorily required to read to a person when requesting a sample of the
person’s breath, blood, or urine for evidentiary chemical testing. See WIS. STAT.
§ 343.305(3), (4). After reading the ITA Form, Wood asked whether Thatcher
would submit to an evidentiary chemical test of his breath. The following
exchange then occurred:

Thatcher: I have a commercial driver’s license.

Wood: Okay.

Thatcher: So, what do you—what do you mean by that?

Wood: Did you—did you understand what the form said?

Thatcher: Yes.

Wood: Okay, ‘cuz I can’t interpret what this says. I’m—I
can read what this says exactly. I can’t summarize what it
means because it can change certain meanings and I don’t
want you to be confused by certain things. So if you’d like
I can read you the whole thing again.

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Thatcher: No, I don’t.

Wood: Okay.

Thatcher: But, [unintelligible] the commercial driver’s
license which is what I have. That’s my job.

Wood: Do you want me to read that part again?

Thatcher: Please.

Wood then reread paragraph 4 of the ITA Form, pertaining to commercial driver’s
licenses, as well as paragraph 5 of the form, which relates to the suspension of a
driver’s operating privileges if a detectable amount of a restricted controlled
substance is found in the driver’s blood.

¶6 Thatcher subsequently told Wood that he understood the ITA Form,
and he agreed to submit to an evidentiary chemical test of his breath. Law
enforcement later collected an evidentiary sample of Thatcher’s breath. Thatcher
requested a secondary chemical test of his blood, pursuant to WIS. STAT.
§ 343.305(5)(a), and law enforcement complied with that request.

¶7 Thatcher was ultimately cited for operating a motor vehicle with a
PAC, as a first offense. He filed a motion and brief seeking to suppress “all direct
and derivative evidence” obtained as a result of Wood’s “improper influence on
[Thatcher’s] decision regarding chemical testing in this case.” Thatcher argued
that he did not validly consent to an evidentiary chemical test of his breath
because: (1) Wood exceeded his duty under WIS. STAT. § 343.305(4) by
providing additional information, beyond that included on the ITA Form; (2) the
additional information was misleading; and (3) the misinformation affected
Thatcher’s choice to consent to an evidentiary chemical breath test. See County of
Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995),
abrogated on other grounds by Washburn County v. Smith, 2008 WI 23, ¶64, 308

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No. 2020AP1734

Wis. 2d 65, 746 N.W.2d 243. Thatcher also argued that his consent to the blood
test was involuntary because Wood “engaged in an unlawful attempt to incentivize
consent.”3

¶8 The circuit court held an evidentiary hearing on Thatcher’s
suppression motion on July 13, 2020. Following the close of evidence, the court
set a deadline of August 7, 2020, for the State to file a brief in response to
Thatcher’s motion. The court also set a deadline of August 17, 2020, for Thatcher
to file a reply brief. On August 7, the State submitted its response brief, which
stated in its entirety:

INTRODUCTION

The above-entitled matter came before the Honorable
Scott R. Needham on July 13, 2020 in the County of
St. Croix, Wisconsin[,] Circuit Court, for a motion hearing
pursuant to Defendant’s Motion to Suppress. Michelle
Brekken, Assistant District Attorney[,] appeared on behalf
of the State of Wisconsin. The Defendant was present and
represented by Adam Nero. Testimony was received from
Trooper Damien Wood with Wisconsin the State Highway
Patrol [sic] and the Defendant. The State now offers the
following brief in response.

FACTS

ARGUMENT

CONCLUSION

For the forgoing reasons, the Court should DENY
Defendant’s Motion in its entirety.

3
Thatcher also filed another suppression motion arguing that his consent to the blood
test was involuntary because certain language on the ITA Form is “coercive.” The circuit court
denied that motion at the end of the suppression hearing, concluding that Thatcher’s argument
was contrary to established Wisconsin Court of Appeals precedent. On appeal, Thatcher has not
sought to challenge the court’s denial of this alternative suppression motion.

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No. 2020AP1734

¶9 Thatcher submitted a reply brief on August 17, 2020. On
September 22, 2020, the circuit court issued a written decision and order granting
Thatcher’s suppression motion. After summarizing Thatcher’s arguments and the
applicable law, the court noted that by failing to file a brief disputing Thatcher’s
arguments, the State had “apparently conceded … the issues as raised by
Thatcher.” The court explained:

Whether an oversight or not, [the State’s] blank slate and
lack of analysis provided the Court with no assistance in
addressing the issues raised by Thatcher in his motion. The
Court can only conclude that the State chose to abandon its
prior challenge to the motion. Accordingly, after
considering the file, proceedings and record herein, the
Court thus finds it appropriate to suppress the results of the
primary alcohol test due to Trooper Wood’s improper
influence on Thatcher. The Court declines the opportunity
to develop the State’s argument.

¶10 The following day, the State filed a corrected brief in response to
Thatcher’s suppression motion. In its brief, the State argued that Wood did not
provide an oversupply of information under the first prong of the Quelle test.
Regardless, even if Wood did provide an oversupply of information, the State
argued that the additional information was not misleading and that Thatcher had
failed to show that the information affected his choice to consent to an evidentiary
chemical test of his breath. The State therefore asked the court to deny Thatcher’s
suppression motion.

¶11 In a letter accompanying its corrected brief, the State explained that
after the circuit court issued its decision granting Thatcher’s suppression motion, it
“bec[a]me apparent” that “a prior draft of the State’s Brief was inadvertently
submitted without argument.” In light of this “technical error,” the State asked the
court to “reconsider” its prior decision. The State noted that the “correct version

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of the [State’s] brief was immediately filed for the Court’s review, as it was timely
completed and unfortunately not properly uploaded to CCAP.”4

¶12 Thatcher’s attorney then wrote to the circuit court, asking the court
to “stand by” its previous ruling. Counsel noted that “for every electronic filing a
party submits, it receives an automated message from CCAP, with a link to the
document, which a party can click to confirm that their submission was in proper
form.” Counsel also observed that the court, “in its decision and order, decided to
grant the Defense’s motion due to the State’s blank submission, ‘whether [it was]
an oversight or not.’” Counsel therefore argued that the State’s assertion that its
blank brief was an oversight did not provide any basis for the court to reconsider
its prior decision.

¶13 On October 1, 2020, the circuit court issued a written decision and
order denying the State’s request for reconsideration. The court ruled that the
State had not “submitted newly discovered evidence or established a manifest
error of law or fact” that would warrant reconsideration of the court’s prior
decision. See Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival
Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d
853. The court explained:

While the Court appreciates the submission of the corrected
brief and the fact that a technical error was apparently the
culprit for the prior blank slate, it is noteworthy to point out
that the State’s brief was filed August 7, 2020 while the
technical error was not discovered until September 23,
2020; the day after the Court pointed out the oversight in its
Decision and Order and five weeks after the Defense
submitted it[s] brief. Though perhaps the State provided an
4
“CCAP is an acronym for Wisconsin’s Consolidated Court Automation Programs.”
Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522.

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No. 2020AP1734

explanation for its mistake, it is nevertheless not an excuse.
As aptly noted in Sherman v. Heiser, 85 Wis. 2d 246, 254,
270 N.W.2d 397, 401 (1978), “courts cannot allow litigants
to control judicial calendars.” Furthermore, the Court has
both statutory and inherent authority “to sanction parties for
failure to prosecute, failure to comply with procedural
statutes or rules, and for failure to obey court orders.”
Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261,
273-74, 470 N.W.2d 859 (1991).

¶14 The circuit court further stated that “a consideration of the merits of
the State’s argument does not change the outcome.” The court set forth the three
factors that a court must consider under Quelle and then stated, without further
analysis or explanation, “The answer to all three questions is ‘yes.’”
Consequently, the court concluded that it was “still … appropriate to suppress the
results of the [breath] test due to Trooper Wood’s improper influence on
Thatcher.”

¶15 Thereafter, Thatcher asked the circuit court to “clarify” the scope of
its suppression order. Specifically, Thatcher asserted that in addition to the results
of his evidentiary chemical breath test, the results of his evidentiary chemical
blood test should also be suppressed under the “fruit of the poisonous tree”
doctrine. In other words, Thatcher argued that the blood test results should be
suppressed because the “secondary blood test … owed its discovery to the illegal
activity giving rise to the first test.” Thatcher therefore asked the court to enter an
order suppressing the blood test results. The court granted Thatcher’s motion,
over the State’s objection, and entered an order suppressing the blood test results.
At Thatcher’s request, the court subsequently entered an order dismissing the PAC
citation.

¶16 The State now appeals, arguing that the circuit court erred
by: (1) granting Thatcher’s motion to suppress the breath test results; (2) denying

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the State’s motion for reconsideration of that decision; and (3) granting Thatcher’s
subsequent motion to suppress the blood test results.

DISCUSSION

¶17 As explained above, the circuit court initially suppressed the results
of Thatcher’s breath test on the grounds that the State had failed to file a brief
responding to Thatcher’s arguments. We conclude that the court did not err in that
regard.

¶18 It is an oft-stated principle that arguments not refuted by a party may
be deemed conceded. See, e.g., Steiner v. Steiner, 2004 WI App 169, ¶17, 276
Wis. 2d 290, 687 N.W.2d 740. Here, Thatcher filed a brief that contained
developed arguments explaining why he believed the circuit court should suppress
the results of his breath test. In particular, Thatcher argued that his consent to the
breath test was invalid because: (1) Wood exceeded his duty under WIS. STAT.
§ 343.305(4) by providing additional information not contained on the ITA Form;
(2) the additional information was misleading; and (3) the misleading information
affected Thatcher’s choice to consent to the breath test. The court held a hearing
on Thatcher’s suppression motion, and it then gave the State over three weeks to
file a brief in response to the motion. Although the State filed a brief within that
deadline, its brief did not include any arguments refuting Thatcher’s claims.

¶19 Under these circumstances, the circuit court appropriately refused to
develop any arguments on the State’s behalf and instead concluded “that the State
chose to abandon its prior challenge to the motion.” This court frequently states
that it will not abandon its neutrality to develop arguments for a party, see, e.g.,
Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25,
318 Wis. 2d 148, 769 N.W.2d 82, and we see no reason why a circuit court, unlike

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this court, should be obligated to do so. Moreover, “Wisconsin circuit courts have
inherent power, within the limits of their discretion, to control their dockets.”
Parker v. Wisconsin Patients Comp. Fund, 2009 WI App 42, ¶9, 317 Wis. 2d
460, 767 N.W.2d 272. In this case, we cannot conclude that the court erroneously
exercised its discretion by granting Thatcher’s suppression motion as a result of
the State’s failure to timely file a brief disputing Thatcher’s arguments.
Accordingly, we reject the State’s argument that the court erred by granting
Thatcher’s initial motion to suppress the results of his breath test.

¶20 After the circuit court issued its written order granting Thatcher’s
motion to suppress the results of his breath test, the State filed a corrected brief
and asked the court to reconsider its prior decision. The court denied the State’s
motion for reconsideration. Again, we cannot conclude that the court erroneously
exercised its discretion in that regard. See Koepsell’s, 275 Wis. 2d 397, ¶6 (stating
that we review a circuit court’s decision on a motion for reconsideration under the
erroneous exercise of discretion standard).

¶21 “To prevail on a motion for reconsideration, the movant must
present either newly discovered evidence or establish a manifest error of law or
fact.” Id., ¶44. In its order denying the State’s reconsideration motion, the circuit
court concluded that the State had not presented any newly discovered evidence in
its motion for reconsideration. We agree with the court’s assessment that the
motion did not set forth any newly discovered evidence.

¶22 The circuit court also concluded the State had not shown that the
court’s previous decision rested on a manifest error of law or fact. The court
accepted the State’s assertion that its submission of a blank brief was a “technical
error.” Nevertheless, the court emphasized that the State did not discover its error

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until the day after the court had issued its decision, which was more than five
weeks after Thatcher had submitted his reply brief. Under these circumstances,
the court concluded that although the State had provided an “explanation” for its
filing of a blank brief, that explanation was not an “excuse” for the State’s error.
The court then noted that a court cannot allow litigants to control the court’s
calendar, and it further observed that a court has authority to sanction parties for
failure to prosecute and failure to comply with court orders. The court cited legal
authority in support of these propositions.

¶23 The circuit court’s decision shows that it examined the relevant
facts, applied a proper standard of law, and used a demonstrated rational process
to reach a reasonable conclusion. See LeMere v. LeMere, 2003 WI 67, ¶13, 262
Wis. 2d 426, 663 N.W.2d 789. The court reasonably concluded that the State had
not presented newly discovered evidence to support its motion for reconsideration,
nor had the State shown that the court’s prior decision was based on a manifest
error of law or fact. On this record, we cannot conclude that the court erroneously
exercised its discretion by denying the State’s motion for reconsideration.5

¶24 Finally, we conclude that the circuit court did not err by granting
Thatcher’s motion to suppress his blood test results under the “fruit of the
poisonous tree” doctrine. “[I]n its broadest sense, the [fruit of the poisonous tree
doctrine] can be regarded ... as a device to prohibit the use of any secondary

5
Because we conclude the circuit court did not erroneously exercise its discretion by
denying the State’s motion for reconsideration, for the reasons stated above, we need not address
the court’s alternative basis for denying the reconsideration motion—i.e., that Thatcher had
established each of the three prongs of the Quelle test. See County of Ozaukee v. Quelle, 198
Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by
Washburn County v. Smith, 2008 WI 23, ¶64, 308 Wis. 2d 65, 746 N.W.2d 243.

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No. 2020AP1734

evidence which is the product of or which owes its discovery to illegal
government activity.” State v. Knapp, 2005 WI 127, ¶24, 285 Wis. 2d 86, 700
N.W.2d 899 (citation omitted).

¶25 In this case, the blood test results clearly owed their discovery to the
inadmissible breath test results. Upon arresting an individual for OWI, a law
enforcement officer “may request the person to provide one or more samples of
his or her breath, blood or urine” for evidentiary chemical testing. WIS. STAT.
§ 343.305(3)(a). If the individual submits to this primary test, the individual may
then request an alternative, secondary test. Sec. 343.305(5)(a). This court has
previously described the results of the secondary test as “material evidence
relating to the prior test.” State v. Renard, 123 Wis. 2d 458, 461, 367 N.W.2d 237
(Ct. App. 1985).

¶26 As Thatcher correctly notes, primary and secondary tests under
WIS. STAT. § 343.305 “are inextricably intertwined and interrelated,” as a
secondary test does not occur absent a primary test. The circuit court similarly
observed that the secondary blood test in this case “was only available as an
alternative after Thatcher submitted to the primary test,” and “[b]ut for the breath
test … there would [not have] been a second test.” The results of Thatcher’s blood
test therefore owe their discovery to the fact that Thatcher had previously
submitted to a breath test. See Knapp, 285 Wis. 2d 86, ¶24. The court properly
suppressed the breath test results based on Thatcher’s argument—which the State
failed to timely refute—that Wood improperly influenced Thatcher’s decision to
consent to the breath test. Given that conclusion, the court properly suppressed
the results of the secondary blood test as fruit of the poisonous tree.

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No. 2020AP1734

By the Court.—Orders affirmed.

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

13