State v. Jenifer A. Will

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.
November 21, 2019
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. 2016AP1700-CR Cir. Ct. No. 2014CF2472

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JENIFER A. WILL,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
JOHN W. MARKSON, Judge. Reversed and cause remanded with directions.

Before Blanchard, Graham and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2016AP1700-CR

¶1 PER CURIAM. The State appeals a circuit court order suppressing
blood draw evidence. The State argues that the unconscious driver provision in
the implied consent law authorized the blood draw or, alternatively, that the police
relied in good faith on the provision. We reject the narrow argument that Will
makes on appeal regarding the good faith exception and conclude that the
evidence should not have been suppressed because the police relied on the
unconscious driver provision in good faith. We reverse.

¶2 On May 5, 2014, Jenifer Will was involved in a vehicle accident and
was transported to the hospital. At a time when Will was unconscious, an officer
read the Informing the Accused form to her and requested that she submit to a
blood draw. The officer ordered the blood draw, and the blood test indicated the
presence of controlled substances. Will was charged with operating a motor
vehicle while under the influence of a restricted controlled substance, causing
injury as a second or subsequent offense, operating with a restricted controlled
substance as a third offense, and two counts of hit-and-run with an attended
vehicle.

¶3 Will moved to suppress the blood draw evidence. She argued that
the unconscious driver provision of the implied consent law, which authorizes a
warrantless blood draw of an unconscious person upon probable cause to believe
the person was driving while intoxicated, is unconstitutional.1 Based on her
contention that the statute authorizing the blood draw was unconstitutional, she
argued that the police were required to obtain a warrant to support the blood draw.

1
Will conceded that the factual predicates under the implied consent law were met, that
is, that she was unconscious and that there was probable cause to believe that she was driving
while intoxicated.

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No. 2016AP1700-CR

The State argued that the unconscious driver provision is constitutional and that, if
it is not, the good faith exception to the exclusionary rule applied. The circuit
court determined that the unconscious driver provision is unconstitutional.
Although the circuit court found that “this officer, individually, acted in good
faith,” it declined to apply the good faith exception to the exclusionary rule and
suppressed the blood test result. The State appeals.

¶4 “Generally, in reviewing motions to suppress, we apply a two-step
standard of review. First, we review the circuit court’s findings of fact, and
uphold them unless they are clearly erroneous. Second, we independently review
the application of constitutional principles to those facts.” State v. Scull, 2015 WI
22, ¶16, 361 Wis. 2d 288, 862 N.W.2d 562 (internal citations omitted). “The
application of the good faith exception to the exclusionary rule is an issue of law,”
subject to de novo review on appeal. Id., ¶17.

¶5 “A blood draw conducted at the direction of the police is a search
subject to the Fourth Amendment requirement that all searches must be
reasonable.” State v. Padley, 2014 WI App 65, ¶23, 354 Wis. 2d 545, 849 N.W.2d
867. Evidence obtained in violation of a defendant’s Fourth Amendment rights
may be suppressed under the exclusionary rule to deter future violations. See
Davis v. United States, 564 U.S. 229, 236-37 (2011). However, the good faith
exception to the exclusionary rule may apply if the evidence was obtained based
on an officer’s objectively reasonable belief that the officer was not violating the
Fourth Amendment. State v. Dearborn, 2010 WI 84, ¶33, 327 Wis. 2d 252, 786
N.W.2d 97. The good faith exception applies when an officer conducts searches
based on objectively reasonable reliance on statutes that are subsequently
invalidated. See Illinois v. Krull, 480 U.S. 340, 349-55 (1987).

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No. 2016AP1700-CR

¶6 Wisconsin’s implied consent law provides that a driver is deemed to
have consented to a blood test if a law enforcement officer properly requests a
sample. WIS. STAT. § 343.305(2) (2017-18).2 In particular, within the implied
consent law, the unconscious driver provision provides that “[a] person who is
unconscious ... is presumed not to have withdrawn consent,” and that, when there
is probable cause to believe that the person has committed a drug- or alcohol-
related driving offense, “one or more samples ... may be” obtained from the
person. WIS. STAT. § 343.305(3)(b).

¶7 We will assume, without deciding, that Will is correct that the
unconscious driver provision is unconstitutional.3 With that assumption, we
conclude that the good faith exception to the exclusionary rule applies to the
undisputed facts before us. Accordingly, we reverse and remand to the circuit
court with directions to deny the suppression motion.

¶8 Here, the officer obtained the warrantless blood draw under WIS.
STAT. § 343.305(3)(b) because Will was unconscious and there was probable
cause to believe that she had been driving while intoxicated. The State argues that
the officer acted in good faith reliance on the statute. It argues that the circuit

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
3
This appeal was previously put on hold pending the United States Supreme Court’s
decision in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019). In Mitchell, the Court addressed
whether a warrantless blood draw from an unconscious driver violated the Fourth Amendment.
Id. at 2531-33. However, the Court declined to discuss the constitutionality of the unconscious
driver provision of the implied consent law, and instead decided the case based on exigent
circumstances. Id. at 2551 (Gorsuch, J., dissenting). We allowed the parties the opportunity to
file supplemental letter briefs addressing the application of Mitchell to this case. We need not
recite here the history on the constitutionality issue in Wisconsin appellate court opinions. As
explained in this opinion, we agree with the State that we need not address Mitchell since the
good faith exception applies under the facts here.

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No. 2016AP1700-CR

court erred by holding that it was unreasonable for officers to continue to rely on
the unconscious driver provision of the implied consent law following the
Supreme Court decision in Missouri v. McNeely, 569 U.S. 141 (2013). The State
contends that McNeely provides that officers may not rely on the rapid dissipation
of alcohol in the bloodstream as a per se exigent circumstance authorizing a
warrantless blood draw. It contends that McNeely did not, however, address the
validity of the unconscious driver provision of the implied consent law, or make
any statement consistent with a conclusion that the provision is unconstitutional.
The State points out that, at the time of the blood draw in this case, no court had
found the statute unconstitutional. It contends that officers are entitled to rely on
statutes that have not been found unconstitutional, and that they cannot be
expected to anticipate that courts in the future may conclude that a statute is
unconstitutional.

¶9 Will’s argument in response is narrow. She does not dispute the
State’s factual predicates for application of the good faith exception and does not
ask for further fact finding in the circuit court. Instead, she makes a purely legal
argument. Will contends that it was not reasonable for the officer to rely on the
unconscious driver provision of the implied consent law because the provision
conflicts with prior cases prohibiting per se exceptions to the warrant requirement.
In particular, she argues that McNeely, in 2013, made clear that per se categorical
exceptions to the Fourth Amendment in the context of warrantless blood draws are
not acceptable.

¶10 We reject the only argument that Will makes on the good faith issue,
based on the reasonably understood state of the law in May 2014. We disagree
with Will that an objectively reasonable officer would have understood in May
2014—based on McNeely’s discussion rejecting sole reliance on the dissipation of

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No. 2016AP1700-CR

alcohol in the blood as an automatic exigent circumstance—that the unconscious
driver provision of the implied consent law was unconstitutional. The McNeely
Court limited its discussion of how the dissipating nature of blood-alcohol
evidence was not, by itself, sufficient to bring blood alcohol concentration testing
within the exigency exception, and it did not purport to address the rationale
behind the unconscious driver provision. As of May 2014, the unconscious driver
provision had been in Wisconsin’s statutes for years, and Will fails to direct us to a
statement of any Wisconsin court or the United States Supreme Court before May
2014 even suggesting that the provision might be unconstitutional. So far as Will
explains her argument, none of the cases that she relies on address, or make
reference to significant features of, the unconscious driver provision. It is not
objectively reasonable to expect that an officer in May 2014 would have drawn
inferences from those cases against the constitutionality of the unconscious driver
provision. See Krull, 480 U.S. at 349-55. Accordingly, we reverse and remand
with directions to deny the suppression motion.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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