                                                                     2018 WI 84

                  SUPREME COURT                  OF   WISCONSIN
CASE NO.:               2015AP304-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Gerald P. Mitchell,
                                  Defendant-Appellant.

                            ON CERTIFICATION FROM THE COURT OF APPEALS


OPINION FILED:          July 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 11, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Sheboygan
   JUDGE:               Terence T. Bourke

JUSTICES:
   CONCURRED:           KELLY, J., concurs, joined by R.G. BRADLEY, J.
                        (opinion filed).
  DISSENTED:            A.W. BRADLEY, J., dissents, joined by
                        ABRAHAMSON, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For      the    defendant-appellant,       there    were   briefs      filed   by
Linda J. Schaefer and Schaefer Law Firm, S.C., Sturgeon Bay.
There was an oral argument by Linda J. Schaefer.


       For the plaintiff-respondent, there was a brief filed by
Ryan J. Walsh, chief deputy solicitor general, with whom on the
brief    were       Brad   D.   Schimel,   attorney       general,    and     David   H.
Perlman, assistant attorney general.                  There was an oral argument
by Ryan J. Walsh, chief deputy solicitor general.


       An    amicus      curiae   brief    was    filed    on   behalf   of    Mothers
Against Drunk Driving by Kevin M. St. John and Bell Giftos St.
John,   LLC,   Madison,   with   whom   on   the   brief   was   Theane   D.
Evangelis, Lauren M. Blas, and Gibson, Dunn & Crutcher, LLP, Los
Angeles, California.      There was an oral argument by Lauren M.
Blas.




                                    2
                                                                            2018 WI 84
                                                                     NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.        2015AP304-CR
(L.C. No.     2013CF365)

STATE OF WISCONSIN                                :               IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,
                                                                          FILED
       v.
                                                                     JUL 3, 2018
Gerald P. Mitchell,
                                                                       Sheila T. Reiff
               Defendant-Appellant.                                 Clerk of Supreme Court




       Appeal from a judgment of the Circuit Court.                   Affirmed.



       ¶1      PATIENCE      DRAKE    ROGGENSACK,         C.J.     This    appeal       is
before us on certification from the court of appeals.

       ¶2      Gerald      Mitchell   was     convicted      of     operating      while

intoxicated and with a prohibited alcohol concentration, based

on    the    test   of     blood   drawn    without   a    warrant     while     he   was

unconscious, pursuant to Wis. Stat. § 343.305(3)(b) (2013–14).1

Mitchell contends that the blood draw was a search conducted in

violation of his Fourth Amendment rights.
       1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
                                                                          No.     2015AP304-CR



       ¶3   We conclude that Mitchell voluntarily consented to a

blood draw by his conduct of driving on Wisconsin's roads and

drinking to a point evidencing probable cause of intoxication.

Further,    through       drinking      to    the    point      of   unconsciousness,

Mitchell    forfeited       all    opportunity,          including         the     statutory

opportunity       under    Wis.    Stat.         § 343.305(4),       to     withdraw       his

consent     previously        given;         and     therefore,           § 343.305(3)(b)

applied,    which     under       the   totality         of    circumstances          herein

presented        reasonably       permitted         drawing      Mitchell's           blood.

Accordingly, we affirm Mitchell's convictions.

                                   I.   BACKGROUND

       ¶4   On the afternoon of May 30, 2013, officers from the

City of Sheboygan Police Department were dispatched in response

to a report that the caller had seen Mitchell, who appeared

intoxicated, get into a gray van and drive away.                          Between 30 and

45     minutes    later,     Officer     Alex        Jaeger      made       contact       with

Mitchell.     He found Mitchell walking near a beach.                           Mitchell was

wet,    shirtless    and     covered     in      sand.        Mitchell's         speech   was
slurred and he had difficulty maintaining his balance.

       ¶5   Mitchell admitted to Jaeger that he had been drinking

prior to driving and that he continued drinking at the beach.

He also stated that he had parked his vehicle "because he felt

he was too drunk to drive."             Nearby, officers found the gray van

Mitchell was reported to have been driving.

       ¶6   After observing Mitchell's physical condition, Jaeger

believed that it would not be safe to conduct standard field
sobriety tests.           Instead, he administered a preliminary breath
                                             2
                                                                         No.   2015AP304-CR



test, which indicated a blood alcohol concentration (BAC) of

0.24.2      Jaeger     then     arrested         Mitchell    for     operating          while

intoxicated.

      ¶7     Following    his      arrest,       and    during    the     drive    to     the

police station, Mitchell's physical condition deteriorated and

his   demeanor   became       more   "lethargic."            Upon    arrival       at     the

police station, it became apparent that an evidentiary breath

test would not be feasible.            Instead, Jaeger opted to transport

Mitchell to a nearby hospital for a blood draw.

      ¶8     During    the     approximately           eight-minute       drive    to     the

hospital,    Mitchell     "appeared         to    be    completely        incapacitated,

[and] would not wake up with any type of stimulation."                                   Upon

arriving at the hospital, Mitchell needed to be transported in a

wheelchair where he sat "slumped over" and unable to maintain an

upright seating position.

      ¶9     After Mitchell entered the hospital emergency room,

Jaeger read Mitchell the Informing the Accused form, thereby

reading     Mitchell    the     statutory         opportunity       to     withdraw       his
consent     to   a     blood       draw.          However,        Mitchell        was     "so

incapacitated    [that]       he    could    not       answer."      Jaeger       directed

hospital staff to draw a sample of Mitchell's blood.3                             They did

so.   Mitchell did not awaken during the procedure.

      2
       Preliminary breath tests are not sufficient evidence to
prove prohibited alcohol concentrations at trial.   Wis. Stat.
§ 343.303.
      3
          There was no warrant sought prior to drawing Mitchell's
blood.


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                                                                     No.    2015AP304-CR



     ¶10     The    blood     draw   occurred        approximately          one     hour

following Mitchell's arrest.              The analysis of his blood sample

showed a BAC of 0.222.

     ¶11     Mitchell was subsequently charged with driving with a

prohibited alcohol concentration (PAC), as well as operating a

motor vehicle while intoxicated (OWI), as a 7th offense.                           Prior

to trial, Mitchell moved to suppress the results of the blood

test.    He alleged that the warrantless blood draw violated his

rights     under    the     Fourth   Amendment       to      the     United       States

Constitution       and    Article    I,    Section      11      of   the     Wisconsin

Constitution.

     ¶12     In response to Mitchell's motion, the State contended

that he had consented to the blood draw when he drove his van on

Wisconsin    highways       according     to   a   subsection        of    Wisconsin's

implied-consent law, Wis. Stat. § 343.305(2).                        The State also

contended that as an unconscious person, he is presumed not to

have withdrawn his consent, pursuant to § 343.305(3)(b).                             The

State    expressly       stated   that    it   was   not     relying       on   exigent
circumstances to justify the blood draw.

     ¶13     The circuit court4 denied Mitchell's suppression motion

in reliance on Wis. Stat. § 343.305(3)(b).                      The circuit court

concluded that the officer had probable cause to believe that

Mitchell was driving while intoxicated, and therefore, the blood



     4
       The    Honorable       Terence     T.   Bourke      of    Sheboygan        County
presided.


                                          4
                                                                    No.        2015AP304-CR



draw was lawful.          A jury convicted Mitchell of the OWI and PAC

charges.

      ¶14   Mitchell      appealed       his     conviction    based      on    the   sole

contention that the warrantless blood draw violated his Fourth

Amendment    right       to    be     free   from   "unreasonable       searches       and

seizures."

      ¶15   The    court        of    appeals,      noting    the   opportunity         to

clarify the law in light of our recent decision in State v.

Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812,5 certified

the   following     questions:           (1) whether     "implied-consent,"            the

potential for which is described in Wis. Stat. §§ 343.305(2) &

(3)(a), which arises through a driver's voluntary conduct in

operating    a    vehicle       on    Wisconsin     roadways   after      drinking      to

intoxication,       is        constitutionally        sufficient       consent,        and

(2) whether a warrantless blood draw from an unconscious person

pursuant    to    Wis.        Stat.    § 343.305(3)(b)       violates      the     Fourth

Amendment.



      5
       The court of appeals, noting that two of its prior cases
had reached opposite conclusions, asked us to clarify whether
implied consent is equivalent to constitutionally sufficient
consent.     Compare State v. Padley, 2014 WI App 65, 354
Wis. 2d 545, 849 N.W.2d 867 (holding that implied consent is not
constitutionally sufficient consent), with State v. Wintlend,
2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745 (holding that
implied consent is constitutionally sufficient).   See also Cook
v. Cook, 208 Wis. 2d 166, 171, 560 N.W.2d 246 (1997) (concluding
that the court of appeals does not have the power to overrule or
modify one of its published opinions).




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                                                                               No.    2015AP304-CR



                                        II.    DISCUSSION

                                   A.   Standard of Review

       ¶16       Whether      a    suppression        motion       was        properly      denied

presents a question of constitutional fact.                              Howes, 373 Wis. 2d

468,       ¶17   (citing      State       v.   Tullberg,         2014    WI    134,    ¶27,    359

Wis. 2d 421, 857 N.W.2d 120).                    We will not set aside a circuit

court's      findings         of   historical        fact    unless      they        are   clearly

erroneous.          State v. Brereton, 2013 WI 17, ¶17, 345 Wis. 2d 563,

826 N.W.2d 369.               However, the application of those facts to

Fourth Amendment principles presents a question of law that we

review independently.               Id.

                        B.     Fourth Amendment General Principles

       ¶17       The     Fourth         Amendment           to     the        United        States

Constitution, and its Wisconsin counterpart, Article I, Section

11 of the Wisconsin Constitution,6 protect persons' rights to "be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures."                             U.S. Const., amend. IV;

Wis.       Const.      art.   I,    § 11.       "As    the       text    makes       clear,   the
ultimate touchstone of the Fourth Amendment is reasonableness."

Riley v. California, 573 U.S. ___, 134 S. Ct. 2473, 2482 (2014)

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).                                     As

a result, the Fourth Amendment does not prohibit all searches

undertaken by government actors, but "merely proscribes those

       6
       "Historically, we have interpreted Article I, Section 11
of the Wisconsin Constitution in accord with the Supreme Court's
interpretation of the Fourth Amendment."     State v. Arias, 2008
WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748.


                                                 6
                                                                 No.     2015AP304-CR



which are unreasonable."         Howes, 373 Wis. 2d 468, ¶21 (quoting

Tullberg, 359 Wis. 2d 421, ¶29 (quoting Florida v. Jimeno, 500

U.S. 248, 250 (1991))).

      ¶18   Drawing blood is a search of the person.                     Birchfield

v. North Dakota,     579 U.S. ___, 136 S. Ct.              2160, 2173 (2016)

(stating that "our cases establish that the taking of a blood

sample or the administration of a breath test is a search");

Howes, 373 Wis. 2d 468, ¶20 (concluding that a blood draw is a

search).     Furthermore, a warrantless search is "presumptively

unreasonable."     State v. Brar, 2017 WI 73, ¶16, 376 Wis. 2d 685,

898 N.W.2d 499 (quoting Tullberg, 359 Wis. 2d 421, ¶30).

      ¶19   However, "there are certain 'specifically established

and   well-delineated'     exceptions        to    the   Fourth        Amendment's

warrant requirement."      Brar, 376 Wis. 2d 685, ¶16 (quoting State

v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1, 646 N.W.2d 834).

One such exception is a search conducted pursuant to consent.

Brar, 376 Wis. 2d 685, ¶16.             Warrantless consent searches are

reasonable; and therefore, they are consistent with the Fourth
Amendment.       Fernandez       v.     California,      571     U.S. 292,       134

S. Ct. 1126, 1137 (2014); Schneckloth v. Bustamonte, 412 U.S.

218, 222 (1973).

                                 C.     Consent

      ¶20   In determining whether consent was given, we employ a

two-step process.        First, we examine whether relevant words,

gestures or conduct supports a finding of consent.                        State v.

Artic,   2010   WI 83,    ¶30,    327    Wis. 2d    392,       786     N.W.2d   430.


                                         7
                                                                              No.     2015AP304-CR



Second, we examine whether the consent was voluntarily given.

Id.

                                    1.    Implied Consent

      ¶21    As we have explained, consent to search need not be

given verbally.              State v. Phillips, 218 Wis. 2d 180, 197, 577

N.W.2d      794       (1998)     (citing         United       States    v.      Griffin,        530

F.2d 739, 741 (7th Cir. 1976); United States v. Donlon, 909 F.2d

650, 652 (1st Cir. 1990) invalidated on other grounds by United

States v. Omar, 104 F.3d 519 (1st Cir. 1997)).                                 Consent given

through conduct "provides a sufficient basis on which to find

that the defendant consented to the search."                                   Phillips, 218

Wis. 2d      at       197      (concluding            that     defendant's           affirmative

assistance in the search of his bedroom demonstrated his consent

to the search).              "Through conduct, an individual may impliedly

consent to be searched."                 Brar, 376 Wis. 2d 685, ¶17.

      ¶22    In       addition,      the        United       States    Supreme       Court      has

recently explained that consent also may be shown by the context

in which consent arises.                   Birchfield, 136 S. Ct. at 2185.                       In
Birchfield, the Court said that "[i]t is well established that a

search      is    reasonable         when       the     subject       consents,          and   that

sometimes consent to a search need not be express but may be

fairly      inferred         from        context."            Id.     (internal          citations

omitted).         The Court's connection between context and consent

was   made       in    the     course      of    Birchfield's         review        of    searches

incident to arrest for OWI in states that have implied-consent

laws.            Birchfield          cited        two        cases     that         demonstrated
constitutionally sufficient consent because of the context in
                                                  8
                                                                          No.     2015AP304-CR



which consent was lawfully implied:                         Florida v. Jardines, 569

U.S.    1    (2013)    and        Marshall    v.     Barlow's,     Inc.,    436       U.S. 307

(1978).

       ¶23     In    Jardines,        the     Court,       through     Justice         Scalia,

recognized the sanctity of the home and that at the "very core"

of the Fourth Amendment "stands 'the right of a man to retreat

into     his    own        home     and    there      be    free     from       unreasonable

governmental intrusion,'" and that this right extended to the

curtilage       of    the     home,       including        the   home's     front          porch.

Jardines, 569 U.S. at 6–7 (quoting Silverman v. United States,

365 U.S. 505, 511 (1961)).

       ¶24     However, the Supreme Court also said that the sanctity

of   the     curtilage       of    one's     home    is    not   absolute       and    certain

permissions to enter may be implied.                        Jardines, 569 U.S. at 8.

In Jardines, the Court recognized that by putting a knocker on

his door, the homeowner had given implicit consent for visitors

to     approach      and     said     that     the    implicit       granting         of     such

permission "does not require fine-grained legal knowledge."                                   Id.
Rather, law enforcement could approach a homeowner's front door

"precisely because that is 'no more than any private citizen

might do.'"          Id.     (quoting Kentucky v. King, 563 U.S. 452, 469

(2011)).       The Court recognized that a homeowner who places a

knocker on his front door impliedly invites visitors to approach

and enter upon the home's curtilage.                        Jardines, 569 U.S. at 8.

Stated otherwise, in the context established by the homeowner,

consent to enter the curtilage and approach the front door was
given.
                                               9
                                                                                 No.    2015AP304-CR



      ¶25      The other decision referenced in Birchfield, Marshall

v.    Barlow's,       Inc.,         noted    that    while        generally            the    Fourth

Amendment       prohibits           searches        without        a        warrant,          certain

businesses and industries are subject to exception.                                      Marshall,

436 U.S. at 313.              Indeed, "pervasively regulated business[es]"

and   "'closely       regulated'            industries      'long        subject         to    close

supervision and inspection,'" are subject to warrant exceptions

for certain searches.                Id. (quoting Colonnade Catering Corp. v.

United States, 397 U.S. 72, 73-75, 77 (1970) (wherein the Court

held that the statutory right to enter and inspect a facility

authorized to serve liquor required no warrant for the search).

      ¶26      The Fourth Amendment exception upheld in Colonnade was

grounded in "unique circumstances" in that "[c]ertain industries

have such a history of government oversight that no reasonable

expectation of privacy, could exist for a proprietor over the

stock    of    such      an    enterprise."              Marshall,          436    U.S.       at   313

(internal      citation        omitted).            Referring          to    the       liquor      and

firearms industries, the Court said that "when an entrepreneur
embarks     upon   such        a    business,       he    has     voluntarily           chosen      to

subject himself to a full arsenal of governmental regulation."

Id.     According to the Court, businesses in these industries are

part of "a long tradition of close government supervision, of

which    any    person        who    chooses    to       enter    such       a    business         must

already be aware."             Id.      By choosing to participate in certain

businesses,        the        Court     concluded          that        those       persons         had

"accept[ed] the burdens as well as the benefits of their trade,"
in a manner different from other businesses and thus "in effect
                                               10
                                                                              No.    2015AP304-CR



consents to the restrictions placed upon him."                            Id.       Once again,

it was the context in which such businesses are operated that

evidenced         voluntary        consent       to    be     subjected       to    significant

governmental regulation.                  Stated otherwise, the context in which

one operates a business involved in alcohol or firearms had a

well-known history of significant governmental regulation such

that       an   owner       of   such   a   business          would    have    no    reasonable

expectation            of   privacy       from    governmental          oversight         of     his

business.         Id.

       ¶27       Birchfield's       discussion          of    the     relationship         between

context         and    consent     instructs          that    context     is       part    of   the

totality of circumstances that courts should review when consent

to search is at issue.                    In regard to the context of highway

regulation, we note that the statutes at issue here are the

legislature's attempt to stop the injuries and deaths drunken

drivers inflict year after year on others who use Wisconsin

highways.7            That drunken driving has resulted in and necessarily

increased state regulation of the privilege of driving on public
roadways         is    well      known.      Therefore,          the    context       of       well-

publicized            regulations         forms        part     of      the        totality      of

circumstances we examine to determine whether a driver who has

been arrested for OWI consented to be searched.
       7
       The same is true across the nation. For example, it has
been reported that in 2016 drunken driving took one life
every 50 minutes in the United States.              See National
Highway    Traffic   Safety   Administration,    Drunk  Driving,
https://www.nhtsa.gov/risky-driving/drunk-driving (last visited
June 25, 2018).


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                                                                  No.    2015AP304-CR



       ¶28     Some of the regulations to which drivers consent have

never been challenged.            For example, they agree to drive on the

right side of the road, Wis. Stat. § 346.05; to yield the right-

of-way to emergency vehicles, Wis. Stat. § 346.19; to comply

with posted speed limits, Wis. Stat. § 346.57(4); and not to

drive with a prohibited blood alcohol concentration, Wis. Stat.

§ 346.63(1)(b).               While     these     regulations     do     not    have

implications for constitutional rights, drivers do not sign a

form acknowledging these obligations each time they get into

their vehicle; yet, they are held accountable and required to

abide by each of them because they chose to drive a vehicle upon

public highways.

       ¶29     Just as Wisconsin drivers consent to the above-listed

obligations by their conduct of driving on Wisconsin's roads, in

the    context       of   significant,    well-publicized       laws    designed   to

curb       drunken    driving,    they    also    consent    to   an    evidentiary

drawing of blood upon a showing of probable cause to believe

that they operated vehicles while intoxicated.8                    This qualified
consent to search is required in order to exercise the privilege

of    driving    in       Wisconsin.9     As    Birchfield   explained,     implied

consent laws condition "the privilege of driving on state roads

       8
       Of course, probable cause to believe that a driver is
operating while intoxicated is sufficient to arrest the driver.
       9
       Probable cause to believe that a driver operated a vehicle
while intoxicated is required before the driver must provide
samples of breath, blood or urine.    Wis. Stat. §§ 343.305(2) &
(3)(a).


                                          12
                                                             No.    2015AP304-CR



and [] the privilege would be rescinded if a suspected drunk

driver refused to honor that condition."            Birchfield, 136 S. Ct.

at 2169.        Consent is complete at the moment the driver begins to

operate      a    vehicle   upon   Wisconsin    roadways    if     the   driver

evidences probable cause to believe that he or she is operating

a     vehicle    while   intoxicated.        Wis.   Stat.   §§ 343.305(2)     &

(3)(a).10

       ¶30   As acknowledged by the United States Supreme Court,

driving on state highways is a privilege; it is not a right.

Id.     In Wisconsin, it is a statutory privilege that comes with


       10
       The point in time when a driver consents has been
described in various ways based on the facts of the case and the
arguments of counsel.    For example, in Wintlend, 258 Wis. 2d
875, the court of appeals addressed Wintlend's argument that the
officer's reading the Informing the Accused form to him coerced
consent.    Id., ¶8.     The court rejected his argument and
concluded that the statutory terms chosen by the legislature
demonstrated that consent had been given before Wintlend was
read the Informing the Accused form. Id., ¶16.

     In State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980),
Neitzel's license was suspended for 60 days for his unreasonable
refusal to permit chemical testing. Id. at 192. Neitzel argued
that the refusal was not unreasonable because he had asked to
consult his attorney before deciding and his request was denied.
Id. at 193.    In dismissing Neitzel's argument, we said that
under the circumstances no right to counsel was provided.     Id.
We also explained that a driver must be arrested before he or
she could be asked to submit to chemical testing, but custody at
that point did not implicate a right to counsel.      Id. at 200.
Because the focus in Neitzel was on an alleged right to counsel,
our discussion addressed that concern.    However, our discussion
herein explains why constitutionally sufficient consent occurs
when a driver operates a vehicle on Wisconsin's highways and
drinks or uses drugs to a point where the driver exhibits
probable cause that he or she is intoxicated.


                                        13
                                                                          No.     2015AP304-CR



statutory obligations when that privilege is exercised.                                  Steeno

v.   State,      85    Wis. 2d 663,      671,    271   N.W.2d 396           (1978)          ("The

granting of an automobile license to operate a motor vehicle is

a privilege and not an inherent right.").

      ¶31     The      United    States     Supreme     Court        recognized              that

implied consent laws are the context in which constitutionally

sufficient consent for chemical testing may be given when it

opined, "our prior opinions have referred approvingly to the

general      concept      of    implied-consent        laws        that     impose          civil

penalties and evidentiary consequences on motorists who refuse

to comply. . . .          [N]othing we say here should be read to cast

doubt on them."          Birchfield, 136 S. Ct. at 2185.

      ¶32     Birchfield also established a "categorical" rule that

a breath test does not implicate "significant privacy concerns,"

and therefore, a warrant is not needed to administer a breath

test.        Birchfield,        136     S. Ct.    at   2176-84.                 This    is     an

interesting           conclusion       because    of    the         Court's            previous

statements that there are no bright-line rules for determining
when a warrant is not required.                   See Missouri v. McNeely, 569

U.S. 141, 158 (2013).            It is also interesting because a driver's

bodily alcohol concentration can be determined from evidentiary

breath tests as well as from blood tests.

      ¶33     Birchfield went on to explain, "It is another matter,

however, for a State not only to insist upon an intrusive blood

test, but also to impose criminal penalties on the refusal to

submit      to   such     a    test.      There    must       be     a    limit        to    the
consequences to which motorists may be deemed to have consented
                                           14
                                                                        No.    2015AP304-CR



by virtue of a decision to drive on public roads."                            Birchfield,

136     S. Ct.    at    2185   (emphasis         added).      The       limit     on    the

consequences of the decision to drive while intoxicated was the

imposition of criminal penalties for refusing to permit a blood

draw.    Id.

       ¶34     Criminal penalties for withdrawing consent to a blood

draw were beyond the scope of implied-consent laws because there

was an insufficient nexus between the consequence of criminal

penalties and choosing to drive on the highways in those states

that    imposed     criminal     penalties        for   withdrawing           consent    to

provide a blood sample for testing.                 Id. at 2186.          In Wisconsin,

the consequences of refusing to permit a blood draw are civil

and evidentiary, not criminal.              Wis. Stat. § 343.305(4).

       ¶35     Relevant to assessing future challenges to refusal to

submit to a blood draw, the Supreme Court adopted the following

standard:        motorists are "deemed to have consented to only those

conditions that are 'reasonable' in that they have a 'nexus' to

the     privilege       of   driving     and      entail     penalties         that     are
proportional to severity of the violation."                       Id.     When applying

that standard, the Court concluded that "motorists cannot be

deemed to have consented to submit to a blood test on pain of

committing a criminal offense [for refusing to submit]."                                Id.

However, imposing "civil penalties and evidentiary consequences"

on     motorists       who   refuse    to    submit     to    a     blood      draw     are

permissible because civil penalties, such as license revocation,

have a nexus to driving.              Id. at 2185 (citing McNeely, 569 U.S.
at 160-61).
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                                                                             No.     2015AP304-CR



       ¶36    Wisconsin          imposes          no      criminal           penalties           for

withdrawing         consent      previously            given.         The     only     criminal

consequence imposed for drunken driving in Wisconsin arises from

repeated      OWI    and    PAC    convictions            and    from       convictions          for

causing injury or death by intoxicated use of a vehicle.                                         See

generally Wis. Stat. § 346.65.                    Criminal penalties do not arise

from     withdrawing        consent        to      blood        draws.             Wis.        Stat.

§ 343.305(4).         All penalties for refusal are administrative and

evidentiary.         For example, a refusal that leads to a first OWI

conviction subjects a defendant to a license suspension and a

forfeiture      but    no     jail     time.            Wis.    Stat.       §§ 343.305(4)            &

346.65(1)(a).

       ¶37    Accordingly,           we      confirm           that     because           it        is

constitutionally        permissible          to    impose       civil        penalties         as   a

consequence for refusing to submit to a blood draw, as Wis.

Stat.        § 343.305(4)         provides,            Wisconsin's           implied-consent

statutes, §§ 343.305(2) & (3)(a), describe a context consistent

with    Birchfield      where      constitutionally             sufficient          consent         to
search arises through conduct.                    Birchfield, 136 S. Ct. at 2185.

Stated    otherwise,        it    is   not      statutes        that    grant       consent         to

search,       but    rather,      consent         is      granted       by     the     driver's

exercising the privilege of driving on Wisconsin highways when

he or she has imbibed sufficient alcohol or drugs to become

intoxicated.          Furthermore, if the consent that arises when a

driver's conduct falls within §§ 343.305(2) & (3)(a) were not

constitutionally        sufficient         consent        for    a     blood       draw,       there


                                              16
                                                                         No.     2015AP304-CR



would    be     no   reason     to    provide         a    statutory     opportunity      to

withdraw consent under § 343.305(4).

       ¶38    Furthermore,      we     presume        that    drivers     know    the    laws

applicable to the roadways on which they drive.                          State v. Weber,

2016 WI 96, ¶78, 372 Wis. 2d 202, 887 N.W.2d 554 (Kelly, J.,

concurring).         Likewise, we also recognize, as has the United

States Supreme Court, that in a state with civil penalties for

refusal to submit to a blood draw, "a person suspected of drunk

driving has no constitutional right to refuse to take a blood-

alcohol test."         South Dakota v. Neville, 459 U.S. 553, 560 n.10

(1983).

       ¶39    In     Neville,        the    Supreme         Court      examined     whether

Neville's refusal to submit to a blood-alcohol test could be

used as evidence of guilt for drunken driving at his trial.                              The

circuit court of South Dakota had suppressed Neville's refusal

to submit to a blood-alcohol test based on the circuit court's

conclusion that evidence of refusal violated Neville's federal

constitutional rights.            Id. at 556.              The Supreme Court reversed
the suppression because Neville's "right to refuse the blood-

alcohol test [] is simply a matter of grace bestowed by the

South Dakota legislature," not a constitutional right.                               Id. at

565.     As the Court further explained, because a driver had no

constitutional        right     to    refuse      a       blood-draw    when     there   was

probable cause to arrest for OWI, the driver's refusal could be

used against him at trial as evidence of guilt.                            Id.; see also

Howes,    373      Wis. 2d 468,       ¶62   (Gableman,         J.,   concurring)        ("[A]


                                             17
                                                               No.    2015AP304-CR



driver has no statutory or constitutional right to refuse [blood

alcohol testing] without consequences.").11

     ¶40    Of course, consent voluntarily-given               before a blood

draw may be withdrawn with or without a statutory reminder.

United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005).

However,    when    consent   is    withdrawn,       civil   consequences     may

follow    because    the   opportunity       to   withdraw   voluntarily    given

consent is not of constitutional significance.                    Neville, 459

U.S. at 565; Wis. Stat. § 343.305(4).

     ¶41    The     legitimacy     of   implied-consent        laws   has    been

supported repeatedly by the United States Supreme Court.                       In

McNeely, the Court stated that "[n]o one can seriously dispute

the magnitude of the drunken driving problem or the States'

interest in eradicating it."            McNeely, 569 U.S. at 160 (quoting

Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990)).

The Court further recognized that "drunk driving continues to

exact a terrible toll on our society," and that "all 50 States

have adopted implied consent laws that require motorists, as a
condition of operating a motor vehicle within the State, to


     11
       Justices Shirley Abrahamson, Ann Walsh Bradley, Rebecca
Grassl Bradley and Daniel Kelly manufacture a constitutional
right to refuse blood-draws to test for blood-alcohol content of
drivers who operate vehicles while intoxicated, notwithstanding
the United States Supreme Court's clearly stated explanation in
South Dakota v. Neville, 459 U.S. 553, 560 n.10, 565 (1983),
that drunken drivers have no constitutional right to refuse
blood-alcohol testing.    State v. Dalton, 2018 WI 85, ¶61, __
Wis. 2d __, __ N.W.2d (manufacturing a constitutional right for
drunken drivers to refuse blood-alcohol testing).


                                        18
                                                                         No.     2015AP304-CR



consent      to   BAC   testing       if     they    are      arrested     or     otherwise

detained on suspicion of a drunk-driving offense."                             McNeely, 569

U.S. at 160–61.

    ¶42       Other states are in accord with our conclusion that

drivers give constitutionally sufficient consent through driving

on state highways and drinking to a point evidencing probable

cause   of    intoxication.            For    example,        the   Supreme       Court   of

Colorado held that warrants need not be obtained for unconscious

drivers as the result of their previously-given consent under

Colorado's "Expressed Consent Statute."                         People v. Hyde, 393

P.3d 962     (Colo.     2017).        The     Colorado        court   recognized         that

"Hyde's statutory consent satisfied the consent exception to the

Fourth Amendment warrant requirement."                     Id., ¶3.       Similarly, the

Supreme Court of Kentucky has said that drivers "consent[] to

testing      by   operating      a    vehicle       in     Kentucky."           Helton     v.

Commonwealth, 299 S.W.3d 555, 559 (Ky. 2009).

    ¶43       As judicial opinions of other states, as well as the

United States Supreme Court's prior statements show, "[i]mplied
consent    is     not   a   second-tier        form      of   consent."          Brar,    376

Wis. 2d 685, ¶23.           Rather, when a driver chooses to operate a

vehicle upon Wisconsin's roads, he or she does so charged with

knowing the laws of this state.                   See Byrne v. State, 12 Wis. 577

(*519), 580 (*521) (1860).

    ¶44       Those laws include Wis. Stat. §§ 343.305(2) & (3)(a)

that function together.              Section 343.305(2) provides that anyone

who "drives or operates a motor vehicle upon the public highways
of this state . . . is deemed to have given consent to one or
                                             19
                                                                     No.    2015AP304-CR



more tests of his or her breath, blood or urine, for the purpose

of determining the presence or quantity in his or her blood or

breath,      of    [alcohol     or    other      prohibited      substances],      when

requested         to   do     so     by     a     law      enforcement       officer."

Section 343.305(3)(a) applies when a driver is arrested based on

probable cause to believe that he or she is intoxicated, wherein

a   driver's      conduct     completes     his    or   her     obligation    to   give

samples of breath, blood or urine.

       ¶45   In the case before us, Mitchell chose to avail himself

of the privilege of driving upon Wisconsin's roads.                        Because he

did so while intoxicated, by his conduct he consented to the

effect of laws that are relevant to exercising that privilege.

He did not need to read them off one-by-one, and then sign a

piece of paper acknowledging his consent to be subject to those

rules and penalties for failing to follow them.                        By driving in

Wisconsin, Mitchell consented to have samples of his breath,

blood   or    urine    taken    upon      the    request   of    a   law   enforcement

officer who had probable cause to believe he was intoxicated,
unless he withdrew such consent.                  Wis. Stat. §§ 343.305(2) and

(3)(a).

                              2.     Voluntary Consent

       ¶46   A determination that consent has been given is not the

end of our inquiry, we also must determine whether the consent

was given "freely and voluntarily."                     Artic, 327 Wis. 2d 392,

¶32.    "However, the State need not demonstrate that consent was

given knowingly or intelligently."                  Brar, 376 Wis. 2d 685, ¶26
(citing Schneckloth, 412 U.S. at 241 ("Nothing, either in the
                                            20
                                                                                 No.     2015AP304-CR



purposes behind requiring a 'knowing' and 'intelligent' waiver

of    trial    rights,      or    in   the      practical        application            of    such   a

requirement        suggests       that     it     ought      to       be    extended         to     the

constitutional           guarantee       against           unreasonable              searches       and

seizures.")).             The    concept     of       "'voluntariness'                 reflects      an

accommodation of complex, somewhat conflicting values."                                       Artic,

327 Wis. 2d 392, ¶32 (citing Schneckloth, 412 U.S. at 224–25).

       ¶47     "The      test    for   voluntariness             is    whether          consent      to

search was given in the absence of duress or coercion, either

express       or   implied."           Phillips,        218       Wis. 2d         at    197.         In

evaluating         the    voluntariness          of    consent,            we     evaluate        "the

totality      of    all    the    surrounding         circumstances."                   Artic,      327

Wis. 2d 392, ¶32 (quoting Schneckloth, 412 U.S. at 226).                                             No

single criterion controls voluntariness.                              Phillips, 218 Wis. 2d

at 197.

       ¶48     In making a determination of voluntariness, the State

bears the burden to prove by clear and convincing evidence that

consent was given voluntarily.                       Id.     Our determination of the
voluntariness of consent is a mixed question of fact and law.

Id.     In     addition,         voluntariness        is     a    determination              that    we

consider relative to Wis. Stat. §§ 343.305(2) & (3)(a) when a

driver commences operation of his or her vehicle on Wisconsin

roadways and under § 343.305(3)(b) when an unconscious driver

has not availed himself of an opportunity to withdraw consent

previously given.

       ¶49     Consent      to    search     that       arises         in       the    context       of
Wisconsin's        implied-consent         laws       is    voluntary           in     one   respect
                                                21
                                                                   No.     2015AP304-CR



that is similar to the voluntariness of consent in Colonnade

because      Wisconsin      has   a   long    history     of   close     governmental

regulation of its highways in regard to drunken drivers.                       Stated

otherwise, the privilege of driving on Wisconsin highways comes

within the context of well-publicized requirements to provide

samples of breath, blood or urine to law enforcement who have

probable cause to believe that the driver is intoxicated.

       ¶50    We now further consider voluntary consent under four

subsections of Wisconsin's implied-consent law at issue in the

case    before      us:      Wis.     Stat.       §§ 343.305(2),    343.305(3)(a),

343.305(4) and 343.305(3)(b).12

               a.     Wisconsin Stat. §§ 343.305(2) & (3)(a)

       ¶51    The voluntariness of consent by conduct that occurs

when a driver commences operation of his vehicle on Wisconsin

roadways is unequivocal and constitutionally sufficient when he

or she evidences the indicia of intoxication such that there is

probable      cause    to   believe     he    or    she   is   driving     under   the

influence.       Stated otherwise, voluntary consent arises through
the effect of a driver's conduct in the context of Wisconsin

law, Wis. Stat. §§ 343.305(2) and 343.305(3)(a).



       12
       We note that other circumstances are impacted by
Wisconsin implied consent law that we do not discuss here. See
Wis. Stat. § 343.305(3)(ar)2., causing death or great bodily
harm when there is reason to believe the driver violated state
or local traffic law.    Here, we limit our discussion to those
circumstances where there are no facts in addition to probable
cause to believe the driver was intoxicated.


                                             22
                                                                      No.       2015AP304-CR



      ¶52    Wisconsin Stat. § 343.305(2) clearly provides, "[a]ny

person who . . . drives or operates a motor vehicle upon the

public     highways     of   this     state . . . is        deemed    to        have   given

consent to one or more tests of his or her breath, blood or

urine, for the purpose of determining the presence or quantity

in   his     or   her      blood     or     breath,    of     alcohol,          controlled

substances . . . ."             A    driver's       consent    is     conditioned         on

probable cause to believe he or she is intoxicated or has caused

serious     injury      or    death.         As     Wis.    Stat.     § 343.305(3)(a)

provides, "Upon arrest of a person for violation of s. 346.63(1)

[driving     while      intoxicated],         (2m)    [underage        drinking],         or

(5) [commercial         driver]      or . . . (2)      [causing       injury] . . . a

law enforcement officer may request the person to provide one or

more samples of his or her breath, blood or urine."                             Therefore,

as   an    initial    matter,       one    consents   to     search    by       driving   on

Wisconsin roadways when one has imbibed sufficient alcohol to

support     probable       cause    to    arrest.      The    choice    to       drive    on

Wisconsin roadways and the choice to drink or ingest drugs to
the point of probable cause to arrest for OWI are voluntary

choices.

                      b.     Wisconsin Stat. § 343.305(4)

      ¶53    Wisconsin       Stat.        § 343.305(4)      provides        a    statutory

opportunity to withdraw consent given under §§ 343.305(2) and

(3)(a), when an officer has probable cause to arrest the driver.

However, civil penalties may follow when consent is withdrawn.

Section 343.305(4) provides in relevant part:


                                             23
                                                              No.        2015AP304-CR


           You have either been arrested for an offense that
      involves driving or operating a motor vehicle while
      under the influence of alcohol or drugs . . . or you
      are the operator of a vehicle that was involved in an
      accident that caused the death of, great bodily harm
      to, or substantial bodily harm to a person . . . .

           This law enforcement agency now wants to test one
      or more samples of your breath, blood or urine to
      determine the concentration of alcohol or drugs in
      your system. . . .    If you refuse to take any test
      that this agency requests, your operating privilege
      will be revoked and you will be subject to other
      penalties.   The test results or the fact that you
      refused testing can be used against you in court.13
It is helpful to keep subsection (4) in mind when discussing

Wis. Stat. § 343.305(3)(b), which is central to this appeal.

      ¶54   Wisconsin     Stat.       § 343.305(4)   provides       a     statutory

opportunity      to   withdraw    consent,    even   though     a       driver   has

operated a vehicle on Wisconsin roads and has imbibed sufficient

alcohol to be arrested for OWI.               Of course, one may withdraw

consent previously given with or without a statutory reminder.

See   Sanders,    424   F.3d     at   774.    Nevertheless,     a       driver   may


      13
       Justices Shirley Abrahamson, Ann Walsh Bradley, Rebecca
Grassl Bradley and Daniel Kelly strike down, sub silentio, Wis.
Stat. § 343.305(4)'s provision that the fact of refusal can be
used against a drunken driver in court because they label
refusal of chemical testing a constitutional right.     Dalton,
__Wis. 2d __, ¶61. However, the United States Supreme Court has
concluded that refusing to take a blood test is not of
constitutional significance and can be used against the
defendant at trial.   Neville, 459 U.S. at 565.    The majority
opinion in Dalton and the separate writings in this case will
create confusion in Wisconsin courts on the admissibility of
refusal evidence because Neville has not been overruled and
remains authoritative on whether refusal is or is not a
constitutional right.


                                         24
                                                                          No.     2015AP304-CR



forfeit the driver's opportunity to withdraw consent by failing

to timely engage it.              State v. Ndina, 2009 WI 21, ¶29, 315

Wis. 2d   653,    761     N.W.2d       612.        Furthermore,       a    defendant         may

forfeit an opportunity he or she otherwise would have by his or

her conduct.        State v. Anthony, 2015 WI 20, ¶59, 361 Wis. 2d

116, 860 N.W.2d 10.

    ¶55     Here,     Mitchell      drank          sufficient       alcohol      to     render

himself unconscious.            He had a BAC of 0.222.                 It is no wonder

that he passed out.14            Through this conduct, he forfeited all

opportunity to withdraw the consent to search that he had given.

                    c.    Wisconsin Stat. § 343.305(3)(b)

    ¶56     Mitchell      was    unconscious          when    his    blood      was     drawn.

Wisconsin     Stat.      § 343.305(3)(b)            addresses       blood       draws       from

unconscious      persons    who     have       not    availed       themselves         of    the

statutory     opportunity        that     is       provided     by    § 343.305(4)            or

otherwise    taken       steps    to    withdraw        consent.           Some       who    are

unconscious have imbibed sufficient alcohol or drugs to render

themselves    unconscious;         others      may    be     unconscious        due     to    an
injury sustained in an accident.                   Section 343.305(3)(b) provides

in relevant part:

    A person who is unconscious or otherwise not capable
    of withdrawing consent is presumed not to have
    withdrawn consent under this subsection, and if a law
    enforcement officer has probable cause to believe that

    14
        See National Institute on Alcohol Abuse and Alcoholism,
Alcohol   Overdose:     The  Dangers   of   Drinking  Too   Much,
https://pubs.niaaa.nih.gov/publications/AlcoholOverdoseFactsheet
/Overdosefact.htm (Oct. 2015).


                                              25
                                                             No.     2015AP304-CR


     the person has violated s. 346.63(1) [driving while
     intoxicated],    (2m)     [underage   drinking]   or
     (5) [commercial driver] . . . [or caused injury] one
     or more samples specified in par. (a) or (am) may be
     administered to the person.
     ¶57    The    Fourth    Amendment     question    is   whether     drawing

Mitchell's blood while he was unconscious was unreasonable and

therefore    in    violation     of   Fourth    Amendment's        prohibitions

against unreasonable searches.           Mitchell claims the blood draw

was unreasonable because he was unconscious when the Informing

the Accused form was read to him.              The State claims that the
blood draw was reasonable because Jaeger had arrested Mitchell

for driving while intoxicated.15

     ¶58    Mitchell's      self-induced    physical   condition      does   not

render    Wis.    Stat.   § 343.305(3)(b)'s     presumption        unreasonable

under the totality of circumstances applicable to our Fourth


     15
       The State's contention could be read to assert that the
blood draw was a search incident to arrest within the
traditional  exception  to   the  Fourth   Amendment's warrant
requirement.

     Mitchell's blood draw parallels the search incident to
arrest doctrine, as probable cause to arrest Mitchell for
driving while intoxicated is fully supported by the record.
That a search incident to arrest is an exception to the warrant
requirement is an important principle to keep in mind. This is
so because all unconscious drivers are not subjected to a blood
draw under Wisconsin implied consent laws.    Only those drivers
for whom "a law enforcement officer has probable cause to
believe that the person has violated [laws regulating use of
intoxicants]" can be searched.      Wis. Stat. § 343.305(3)(b).
This limitation also is consistent with the reasonableness
requirement of the Fourth Amendment. For an unconscious driver,
a blood draw is the only means by which to obtain evidence of
the crime for which he or she has been charged.


                                      26
                                                                     No.     2015AP304-CR



Amendment discussion.            First, by exercising the privilege of

driving on Wisconsin highways, Mitchell's conduct demonstrated

consent to provide breath, blood or urine samples to be tested

in accord with §§ 343.305(2) & (3)(a) if law enforcement had

probable cause to believe that he had operated his vehicle while

intoxicated.          Second,    Jaeger       had      probable    cause     to     arrest

Mitchell for driving while intoxicated.                   His speech was slurred;

he    smelled    of    alcohol;       he   had       difficulty     maintaining         his

balance; his preliminary breath test showed a BAC of 0.24, which

indicates significant intoxication.                     Third, Mitchell chose to

drink sufficient alcohol to produce unconsciousness.                         Fourth, by

his   conduct,     Mitchell     forfeited        the    statutory     opportunity        to

assert   that    he     had   "withdrawn         consent"    he    previously        gave.

Ndina, 315 Wis. 2d 653, ¶29; Anthony, 361 Wis. 2d 116, ¶59.

      ¶59    Therefore,       under     the     totality     of    circumstances         as

applied to Mitchell, Wis. Stat. § 343.305(3)(b)'s presumption is

reasonable.           Accordingly,         drawing        Mitchell's        blood       was

reasonable, and no Fourth Amendment violation occurred.
      ¶60    Because     we   conclude        that     consent     given    by     drivers

whose    conduct      falls     within      the       parameters     of     Wis.     Stat.

§ 343.305 is constitutionally sufficient consent to withstand

Fourth      Amendment     scrutiny,        and       although     consent        must    be

voluntary, it need not be knowing, we overrule State v. Padley,

2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867.                           We do so for

two reasons.       First, we clarify that Padley has no precedential

effect   because       its    holding      is    in    direct     conflict       with    an
earlier, published court of appeals decision, State v. Wintlend,
                                           27
                                                                           No.    2015AP304-CR



2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745.                            Cook v. Cook,

208 Wis. 2d 166, 171, 560 N.W.2d 246 (1997) (concluding that the

court of appeals cannot overrule or modify one of its published

opinions).       Second,          Padley is simply wrong as a matter of law.

There,    the    court       of    appeals       said    that    "implied        consent"      is

different       than       "actual    consent,"         and    that   actual      consent      is

given only when a driver affirms his or her previously-given

implied consent after being read the Informing the Accused form.

See Padley, 354 Wis. 2d 545, ¶38.                        The court also incorporated

the concept of "knowingly" into consent law.                              Id., ¶62.       Under

the    reasoning       in     Padley,       driving      on    Wisconsin     highways         and

drinking, using drugs or being involved in an accident causing

death or serious bodily injury while violating a state or local

traffic law does not provide constitutionally sufficient consent

through conduct.            We conclude otherwise.

       ¶61   The question that remains in regard to Mitchell is

whether Wis. Stat. § 343.304(3)(b)'s presumption                              that consent

has    not   been      withdrawn       is    reasonable         for   a    driver   who       has
suffered an injury rendering him or her unconscious, but for

whom there is probable cause to believe that he or she operated

a     vehicle     in       violation        of    laws        regulating     the        use    of

intoxicants.

       ¶62   We begin by noting that all drivers, by their conduct,

consent to provide samples of their breath, blood or urine when

requested by law enforcement personnel who have probable cause

to     arrest     for        driving        while       intoxicated.             Wis.     Stat.
§§ 343.305(2)          &    (3)(a).     We       also    recognize        that    consent      to
                                                 28
                                                                         No.        2015AP304-CR



search once given may be withdrawn.                      See Sanders, 424 F.3d at

774.    Although no magic words are required to withdraw consent,

the intent to withdraw must be unequivocal.                        Id.     Withdrawal of

consent given under implied-consent laws also may be withdrawn.

Wisconsin Stat. § 343.305(4) reminds drivers of the opportunity

to   "withdraw"     consent      previously         given.     See        also       State    v.

Arrotta, 339 P.3d 1177, 1178 (Idaho 2014) (concluding that under

Idaho   implied-consent          laws,     a    suspected      drunken          driver       can

withdraw     his    or    her    consent       to    test    for    the        presence      of

alcohol).      However, for many unconscious drivers, it may be that

they have taken no steps to demonstrate unequivocal intent to

withdraw consent previously given.

       ¶63   Furthermore, the opportunity to refuse a blood test

when    there      is    probable     cause         to   believe     the         driver      is

intoxicated is not of constitutional significance, as is shown

by   Supreme    Court      jurisprudence        concluding     that       withdrawal          of

consent may be used as evidence of guilt at trial.                                   State v.

Crandall, 133 Wis. 2d 251, 255, 394 N.W.2d 905 (1986) (citing
Neville,     459        U.S.    at   565       (concluding         that        it     is     not

"fundamentally unfair for South Dakota to use the refusal to

take the test as evidence of guilt, even though respondent was

not specifically warned that his refusal could be used against

him at trial")).

       ¶64   In addition, Wis. Stat. § 343.305(3)(b)'s presumption

affects only unconscious drivers for whom law enforcement has

probable cause to believe that the driver has violated statutory
proscriptions on use of intoxicants.                     Therefore, those drivers
                                           29
                                                                             No.      2015AP304-CR



who are unconscious but for whom law enforcement does not have

probable cause to believe they drove while intoxicated will not

be subject to the presumption of § 343.305(3)(b).

       ¶65   For     drivers   for    whom          the    presumption           applies,     Wis.

Stat. § 343.305(3)(b) is consistent with United States Supreme

Court precedent that a warrantless search at arrest does not

violate the Fourth Amendment when there is consent given prior

to the search.           United States v. Robinson, 414 U.S. 218, 224

(1973); Schneckloth, 412 U.S. at 222.                            Therefore, we conclude

that   under       the   totality    of    circumstances              the       presumption    of

§ 343.305(3)(b) is reasonable.                  Accordingly, it does not violate

Fourth Amendment rights of                one       for whom law enforcement has

probable cause to believe he or she operated a vehicle after

consuming alcohol or drugs to the point of intoxication.

                                   III.    CONCLUSION

       ¶66   We conclude that Mitchell voluntarily consented to a

blood draw by his conduct of driving on Wisconsin's roads and

drinking to a point evidencing probable cause of intoxication.
Further,     through       drinking       to    the       point       of    unconsciousness,

Mitchell     forfeited       all    opportunity,               including        the    statutory

opportunity        under    Wis.    Stat.       § 343.305(4),              to    withdraw     his

consent      previously        given;          and        therefore,         § 343.305(3)(b)

applied, which under the totality of circumstances reasonably

permitted      drawing     Mitchell's          blood.           Accordingly,          we   affirm

Mitchell's convictions.

       By    the    Court.—The       judgment             of    the    circuit        court    is
affirmed.
                                               30
     No.   2015AP304-CR




31
                                                                        No.    2015AP304-CR.dk


      ¶67    DANIEL KELLY, J.              (concurring).             I do not believe the

state can waive the people's constitutional protections against

the state.     I nonetheless concur because performing a blood draw

on an unconscious individual who has been arrested for operating

a motor vehicle while intoxicated in violation of Wis. Stat.

§ 346.63 ("OWI") is reasonable within the meaning of the Fourth

Amendment to the United States Constitution.1

      ¶68    This is not the first time we have considered whether

a   law    enforcement       officer        may       perform    a    blood     draw       on   an

individual     pursuant          to     "consent"            granted     by     Wis.       Stat.

§ 343.305.          Last    term      we    considered          whether       such   "implied

consent" can satisfy the requirements of the Fourth Amendment to

the United States Constitution.                      See State v. Brar, 2017 WI 73,

¶¶15, 28-29, 376 Wis. 2d 685, 898 N.W.2d 99 (lead opinion).                                      No

opinion attracted a majority of the court.                            I concurred because

Mr. Brar was conscious and had provided express consent to a

blood draw, a point on which a majority of the court agreed.

However,      because           the     court          nonetheless        addressed             the
constitutionality          of     the      implied          consent    statute,        I    also

explained     why    I     believe      that         "implied    consent"       is   actually

consent granted by the legislature, not the suspect, and why

legislative consent cannot satisfy the mandates of our State and

Federal     Constitutions.                 See       id.,     ¶¶44,     59     (Kelly,          J.,

concurring); see also id., ¶15 & n.6 (lead opinion) (discussing




      1
          I join paragraphs 1-2 and 4-28 of the lead opinion.


                                                 1
                                                                    No.       2015AP304-CR.dk


federal      and    state    constitutional        provisions).           I    incorporate

that analysis here in toto.

       ¶69     The court today is even more ambitious than it was in

Brar.       Legislatively-granted consent to perform a blood draw is

justified, the court says, for the same reasons certain searches

of    pervasively-regulated            businesses     do    not    require        warrants.

Lead    op.,       ¶¶25-28    (citing      Marshall    v.    Barlow's,          Inc.,    436

U.S. 307 (1978); Colonnade Catering Corp. v. United States, 397

U.S. 72 (1970)).            But the court misunderstands the significance

of that line of cases.              The searches considered there were not

reasonable         because   a   legislature       said     they    were;        they   were

reasonable because they did not intrude on the affected person's

reasonable expectation of privacy.                   In Colonnade Catering, for

example, the United States Supreme Court surveyed the regulatory

history of the liquor industry, reaching as far back as England

of the eighteenth century.               Colonnade Catering, 397 U.S. at 75.

The whole point of rehearsing that history was to demonstrate

that    a    liquor     retailer       had    no    reasonable      expectation          his
premises      would    be    free   from     regular   governmental            inspection.

See    id.      Therefore,       the    congressionally-developed               inspection

regime at issue in Colonnade Catering was constitutional because

it operated in an area in which the retailer had no reasonable

expectation of privacy.                The United States Supreme Court has

treated the firearm industry in a similar fashion.                               In United

States v. Biswell, 406 U.S. 311 (1972), the Court said "[i]t is

also apparent that if the law is to be properly enforced and
inspection made effective, inspections without warrant must be

                                             2
                                                                           No.   2015AP304-CR.dk


deemed reasonable official conduct under the Fourth Amendment."

Id.    at    316.         Although      the    Court       chose    a     stilted      means    of

explaining itself, it is apparent the Court had concluded that

the inspection regime in that case did not reach into an area in

which the pawn dealer had a reasonable expectation of privacy.

See id.       The "pervasive-regulation" doctrine, therefore, allows

warrantless         inspection        regimes       only    when     the       nature    of    the

business at issue is such that the proprietor does not have an

expectation of privacy.

       ¶70     The    court     should        not    venture       into    the       "pervasive-

regulation"         arm    of   Fourth        Amendment      jurisprudence            without    a

great deal of fear and trepidation.                          The rationale justifying

this doctrine is too easy to abuse.                           If increased regulation

decreases       the    areas     in     which       individuals         have     a    reasonable

expectation of privacy, then the Fourth Amendment's protections

are effectively contingent on the reach of the regulatory state.

Through combined legislative and executive activity, oceans of

regulations can wear away zones of privacy, allowing warrantless
inspection regimes to follow in their wake.

       ¶71     Today's decision is a good example of the doctrine's

erosive power.            Driving, the court observes, is subject to many

regulations, what with all the rules about staying on the right

side    of    the     road,     speed    limits,       interactions          with      emergency

vehicles, et cetera.             The court could have mined that vein even

more deeply than it did——under any definition, driving truly is

pervasively-regulated.             The temptation to reach for the doctrine
under       these    circumstances        is     nearly      irresistible.              And    why

                                                3
                                                                        No.    2015AP304-CR.dk


wouldn't it be?            It fairly demands to be heard here.                      But this

is   a    powerful        and   unruly     force,      and     when    the    United   States

Supreme Court set it in motion, it impressed on the doctrine no

internal logic capable of limiting its reach.

         ¶72   The    court       thinks    to    wield      this     doctrine    here    with

limited        effect——after         all,        we      are    simply        justifying     a

warrantless blood draw.                  But the court misapprehends how the

doctrine functions and, therefore, its consequences.                              If we are

of a mind that this doctrine justifies the implied consent law,

we   may       do    so    only    if      we    first    conclude       that    regulatory

pervasiveness has removed the subject of its operation from the

reasonable expectation of privacy.                       See Colonnade Catering, 397

U.S. at 75; Biswell, 406 U.S. at 316.                          That is to say, because

driving        is     pervasively          regulated,          those     who     travel     on

Wisconsin's highways have no reasonable expectation of privacy

as they engage in that activity.                      And if that is true, it would

sweep away a large body of Fourth Amendment jurisprudence as it

relates to traffic stops, searches of automobiles, searches of
drivers and passengers, et cetera.                        Wielding this doctrine as

the court does today, if we are serious about its application,

calves off a substantial piece of the Fourth Amendment.

         ¶73   For these reasons, and the reasons I discussed in my

Brar concurrence, I conclude that the consent implied by Wis.

Stat. § 343.305 cannot justify the blood draw performed on Mr.

Mitchell.




                                                 4
                                                                      No.    2015AP304-CR.dk


                                              *

       ¶74   But      this    case    is     not    Brar,     and    different      reasons

justify the blood draw here.                      The most important distinction

between the two cases is this:                     Mr. Mitchell was not conscious

when the law enforcement officer determined that a blood draw

was    necessary.            No   Supreme     Court       decision     has    yet   opined

directly on whether a warrant is necessary to perform a blood

draw under these circumstances; I believe the interplay among

Schmerber       v.    California,       384        U.S. 757    (1966),       Missouri    v.

McNeely, 569 U.S. 141 (2013), and Birchfield v. North Dakota,

136     S. Ct. 2160      (2016),       leave       that     question       open.     Their

combined     rationale,           however,     indicates       that    no     warrant    is

necessary to perform a blood draw when an individual has been

arrested for OWI, the suspect is unconscious, and there is a

risk    of   losing      critical      evidence        through       the    human   body's

natural metabolization of alcohol.

       ¶75   For more than half a century now the United States

Supreme Court has recognized that warrantless blood draws can be
constitutional.         In Schmerber, the Supreme Court recognized that

exigent circumstances can justify a warrantless blood draw from

an individual arrested on OWI charges.                      See Schmerber, 384 U.S.

at 770-71.       It said the human body's natural metabolization of

alcohol could, under the right circumstances, cause an officer

to    "reasonably have believed that he was confronted with an

emergency, in which the delay necessary to obtain a warrant,

under     the        circumstances,         threatened        'the     destruction       of
evidence.'"        Id. at 770 (citation omitted).

                                              5
                                                                       No.    2015AP304-CR.dk


       ¶76    More     recently,     the    State         of    Missouri      pressed       the

Supreme Court to adopt a rule that the natural metabolization of

alcohol in the bloodstream presents a per se exigency.                               McNeely,

569    U.S.    at    151-52.       The   Court       refused,         but    confirmed      the

continuing vitality of the rule that the proper circumstances

will still justify a warrantless blood draw.                          "We do not doubt,"

the Court said, "that some circumstances will make obtaining a

warrant impractical such that the dissipation of alcohol from

the bloodstream will support an exigency justifying a properly

conducted warrantless blood test."                        Id.    at 153.         Therefore,

"[w]hether a warrantless blood test of a drunk-driving suspect

is    reasonable     must     be   determined        case      by    case    based    on   the

totality of the circumstances."                 Id. at 156.

       ¶77    The    constitutionality          of    a     warrantless        blood       draw

returned to the Supreme Court in the context of the "search

incident to arrest" doctrine in Birchfield.                          136 S. Ct. at 2179,

2185.         There,    the    Court       said      this       doctrine      justifies       a

warrantless breath test when the individual has been arrested
for OWI; however, it does not justify a warrantless blood draw

(at least when the suspect is conscious).                           See id. at 2185.         In

reaching this conclusion, the Court placed heavy emphasis on the

differing levels of intrusiveness between the two tests.                              Id. at

2178.    Thus, for example, it said that "[b]ecause breath tests

are significantly less intrusive than blood tests and in most

cases amply serve law enforcement interests, we conclude that a

breath test, but not a blood test, may be administered as a



                                            6
                                                                        No.    2015AP304-CR.dk


search incident to a lawful arrest for drunk driving."                                  Id. at

2185.

     ¶78    Availability            of   the      breath       test,   however,     was    the

driving motivation for its ruling.                           In the absence of such an

option,     the        reasonableness            of      a    warrantless       blood     test

increases:

          We reach a different conclusion with respect to
     blood tests.     Blood tests are significantly more
     intrusive, and their reasonableness must be judged in
     light of the availability of the less invasive
     alternative of a breath test.         Respondents have
     offered no satisfactory justification for demanding
     the more intrusive alternative without a warrant.
Id. at 2184.

     ¶79    Combining        the     reasoning           of    Schmerber,     McNeely,      and

Birchfield provides the necessary guidance for Mr. Mitchell's

case.     Schmerber established the ground-rule principle that a

warrantless blood draw can be constitutional.                               See Schmerber,

384 U.S. at 770-71.             McNeely refined the Schmerber holding when

it   explained          that,       under        the     right     circumstances,          "the

dissipation       of    alcohol      from        the    bloodstream     will     support    an
exigency     justifying         a    properly           conducted      warrantless        blood

test."     See McNeely, 569 U.S. at 153.                          Birchfield added two

important pieces to the analysis.                       First, it established that an

individual arrested for OWI may be searched incident to his

arrest for evidence             of intoxication without a warrant.                          See

Birchfield, 136 S. Ct. at 2184.                        And second, it determined that

the method by which law enforcement conducts the search (by

breath     test        as   opposed         to        blood    test)    depends      on    the
availability of the less-intrusive option.                        See id. at 2185.
                                                  7
                                                                   No.    2015AP304-CR.dk


       ¶80    Here is how the Supreme Court's instructions apply in

this case.       Mr. Mitchell, of course, was arrested for OWI, so

Schmerber and McNeely recognize that critical evidence of his

intoxication      was       continually    metabolizing          away.      They     also

explain that although metabolization alone would not support a

warrantless blood draw, when combined with other elements it

may.    Birchfield says his privacy interest in the evidence of

intoxication within his body is no longer a factor because the

"search incident to arrest" doctrine is a recognized exception

to the warrant requirement.               So the only question remaining is

whether the search should be conducted via a breath test or a

blood   test.        Birchfield    tells       us    that   we   must     consider    the

availability of the less intrusive test in making this decision.

Mr. Mitchell, however, was unconscious, so the breath test was

not    an    option.        A   warrantless         blood   test    was    reasonable,

therefore, because he had been arrested for OWI, evidence of the

offense was continually dissipating, there was no telling how

long    he   would     be    unconscious,      his     privacy     interest     in    the
evidence of intoxication within his body had been eviscerated by

the arrest, and no less intrusive means were available to obtain

the evanescent evidence.

       ¶81    I recognize that Birchfield holds a cautionary note

about   blood    tests       performed    on    unconscious        suspects,    but    it

appears to be in the form of an explanation for why the Court

devoted just two sentences to the subject:

            It is true that a blood test, unlike a breath
       test, may be administered to a person who is
       unconscious (perhaps as a result of a crash) or who is
       unable to do what is needed to take a breath test due
                                  8
                                                          No.   2015AP304-CR.dk

     to profound intoxication or injuries. But we have no
     reason to believe that such situations are common in
     drunk-driving arrests, and when they arise, the police
     may apply for a warrant if need be.
Birchfield,    136    S. Ct.   at   2184-85.   Nothing     in    the   opinion

indicates     the    Supreme   Court   considered   how    its    analytical

structure would apply in the context of an unconscious suspect

arrested for OWI, and it would be too much like reading tea

leaves to give any substantive weight to a statement that simply

gives the Court's reasons for not addressing the question we are

deciding.2



     2
       The dissent believes Birchfield has already answered this
question, and therefore concludes my "analytical exercise
ultimately   fails  because   it    cannot  be  reconciled  with
Birchfield's central holding:    'a breath test, but not a blood
test, may be administered as a search incident to a lawful
arrest for drunk driving.'"         Dissent, ¶101 n.6 (quoting
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016))
(emphasis omitted).     The Supreme Court stated that central
holding, however, in the context of a suspect who, unlike Mr.
Mitchell, was conscious. This is a distinction that Birchfield
itself advanced, so it's entirely justifiable to explore its
significance, as I have done in this opinion.

     But there is an even more important reason the dissent
should be chary of finding such a categorical prohibition in
that precedent: Birchfield is not comfortable in its own skin.
Its central logic is actually self-contradictory, which explains
why both the court and the dissent are able to call on it for
support. If the Supreme Court had endorsed implied-consent laws
as sufficient to authorize a breath or blood test (as our court
says), then it would have held that implied consent justified
the breath test. But it didn't. It said the "search incident
to   arrest"  exception   to  the   Fourth   Amendment's warrant
requirement justified the breath test.     On the other hand, if
Birchfield forbids blood draws pursuant to an implied-consent
law, as the dissent claims, then such a law could not justify
the breath test either, inasmuch as the law either provides
constitutionally-sound consent for both, or for neither.

                                                                 (continued)
                                       9
                                                                      No.    2015AP304-CR.dk


                                              *

    ¶82      Apropos of nothing relevant to this case, the lead

opinion says a quartet of the court's members, including the

author of this concurrence and the justice who joins it, "label

refusal of chemical testing a constitutional right [in State v.

Dalton, 2018 WI 85, ¶61, __ Wis. 2d __, __ N.W.2d __]."                                   See

lead op., ¶53 n.13.         If the lead opinion means to say that we

understand    the     people     of    Wisconsin       have      a    constitutionally-

protected     right    to   be        free    from    warrantless,            unreasonable

searches, then it is spot-on.                 And if the lead opinion further

means to say that we recognize that the people of Wisconsin may

operationalize that constitutionally-protected right by refusing

warrantless,    unreasonable           searches,       then      it       again   hits    the

bulls-eye.     But none of that happened in Dalton.                           It happened

when the people of this nation ratified the Bill of Rights.                               We

have done nothing new here; we only recognize what is already

the law.

    ¶83      Ultimately,       the     lead       opinion   is       of     two   minds   on
whether a suspect may refuse a blood test, and it expressed both

of them.     On the one hand, it says that, "in a state with civil


     So I disagree with the dissent that I cannot reconcile my
analytical exercise to Birchfield's central holding.    When the
Supreme Court speaks with two contradictory voices in one
opinion, the best we can do is follow its logic until it starts
contending with itself. Here, that means Birchfield stands for
the proposition that, with respect to conscious drunk-driving
suspects, the "search incident to arrest" doctrine covers breath
tests, but not blood draws.      Because Mr. Mitchell was not
conscious, Birchfield does not control the disposition of this
case.


                                             10
                                                                         No.   2015AP304-CR.dk


penalties        for     refusal     to       submit   to    a   blood   draw,    'a   person

suspected of drunk driving has no constitutional right to refuse

to take a blood-alcohol test.'"                        Lead op., ¶38 (quoting South

Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983)).                               But almost

immediately           afterwards         it    also    said:       "Of    course,      consent

voluntarily-given before a blood draw may be withdrawn with or

without a statutory reminder."                         Lead op., ¶40 (citing United

States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005)).                              So which

is it?         May a suspect refuse a blood test or not?

       ¶84      Perhaps, however, the lead opinion means to say that

when       a    blood        test   is    conducted         pursuant     to    consent——real

consent,        the     kind    that     people       provide,    not    legislatures——the

consent         can     be    withdrawn,        but     when     conducted     pursuant    to

legislatively-provided consent, it cannot.                            That seems to be the

import of the observation that the "right to refuse the blood-

alcohol        test . . . is         simply      a     matter    of    grace    bestowed   by

the . . . legislature."                  See lead op., ¶39 (quoting Neville, 459

U.S. at 565).            But if that is so, what possible jurisprudential
theory allows a statute to make permanent what the constitution

makes revocable?3



       3
       The right to refuse a search, and to revoke consent once
given, has been a part of Fourth Amendment jurisprudence for a
very long time.    See Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973) (stating that consent may be refused); United States
v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) (stating that
consent may be withdrawn); United States v. Black, 675 F.2d 129,
138 (7th Cir. 1982) (same); Mason v. Pulliam, 557 F.2d 426, 428
(5th Cir. 1977) (stating that nothing in Schneckloth prevents
consent from being withdrawn).


                                                 11
                                                       No.   2015AP304-CR.dk


                                   *

    ¶85   For   these   reasons,   I    respectfully    concur     in   our

court's mandate.

    ¶86   I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.




                                   12
                                                                 No.    2015AP304-CR.awb


    ¶87     ANN WALSH BRADLEY, J.               (dissenting).         A blood draw is

a particularly intrusive search.                 It invades the interior of the

human     body    and    implicates    interests          in   human     dignity     and

privacy.     Schmerber v. California, 384 U.S. 757, 769-70 (1966).

To allow a blood draw without a warrant runs counter to these

significant      interests,     not    to       mention    United      States   Supreme

Court precedent.

    ¶88     The    police    took     Gerald      Mitchell's     blood       without   a

warrant    while    he    was   unconscious.              According     to   the     lead

opinion1, this is perfectly fine because Mitchell by implication

"voluntarily      consented"     to    a    blood     draw     and,     while   he   was

unconscious, did not revoke such consent.
    1
       I use the term "lead" opinion for two reasons. First, I
am concerned that without this cue, the reader may mistakenly
believe that the lead opinion has any precedential value.
Although five justices join in the mandate of the opinion to
affirm the court of appeals (Roggensack, C.J., joined by
Ziegler, J., Gableman, J., Rebecca Grassl Bradley, J., and
Kelly, J.,), it represents the reasoning of only three justices
(Roggensack, C.J., joined by Ziegler, J., and Gableman, J.).
Justices Rebecca Grassl Bradley and Kelly joined in the mandate,
but they would rely on contrary reasoning. Other paragraphs of
the lead opinion that Justice Kelly indicates that he joins
provide only uncontested factual and legal background that do
not include the lead opinion's reasoning.    See Justice Kelly's
concurrence, ¶67 n.1.

     Although set forth in two separate opinions, four justices
disagree with the reasoning of the lead opinion.   Importantly,
contrary to the lead opinion, four justices determine that the
implied consent laws cannot justify the warrantless blood draw
performed in this case (Abrahamson, J., Ann Walsh Bradley, J.,
Rebecca Grassl Bradley, J., and Kelly, J.).

     The lead opinion fails to alert readers as to the non-
precedential status of its essential reasoning.    Lest the rule
of law be unclear to courts and litigants:    BY THEMSELVES, THE
IMPLIED CONSENT LAWS CANNOT JUSTIFY A WARRANTLESS BLOOD DRAW.

                                            1
                                                                      No.    2015AP304-CR.awb


     ¶89    Contrary       to    the       lead      opinion,     I     determine        that

"implied    consent"       is    not   the         same   as   "actual       consent"     for

purposes    of    a    Fourth    Amendment          search.      By     relying     on    the

implied consent laws, the lead opinion attempts to create a

statutory    per      se   exception       to      the    constitutionally         mandated

warrant requirement.            Thus, it embraces a categorical exception

over the constitutionally required consideration of the totality

of the circumstances.                Consent provided solely by way of an

implied consent statute is constitutionally untenable.2

     ¶90    Accordingly, I respectfully dissent.

                                               I

     ¶91    Mitchell was arrested for operating while intoxicated.

En route to a nearby hospital, he lost consciousness.                               Despite

Mitchell's       incapacitation,           a    police      officer         read   him    the

Informing    the      Accused     form.            Mitchell    provided       no   response

because he was unconscious.                The officer then directed hospital

staff to draw a sample of Mitchell's blood, and they did so.

Mitchell remained unconscious as his skin was pierced and his
blood taken.

     ¶92    Seeking to exclude the evidence obtained as a result

of the blood draw, Mitchell filed a motion to suppress.                                    He

premised    his       motion    on   the       contention      that    the     warrantless


     2
       I observe that the concurrence and this dissent are in
accord on this point. The concurrence "do[es] not believe that
the state can waive the people's constitutional protections
against the state."       Concurrence, ¶67.     Accordingly, it
concludes that "the consent implied by § 343.305 cannot justify
the blood draw performed on Mr. Mitchell." Id., ¶73.


                                               2
                                                       No.   2015AP304-CR.awb


taking of his blood while he was unconscious violated his Fourth

Amendment rights.

      ¶93   The     lead   opinion     rejects     Mitchell's      argument,

concluding that the consent exception to the Fourth Amendment's

warrant requirement applies.          Lead op., ¶3.     According to the

lead opinion, Mitchell "voluntarily consented to a blood draw by

his conduct of driving on Wisconsin's roads and drinking to a

point evidencing probable cause of intoxication."            Id.     Further,

in the lead opinion's view, Mitchell "forfeited all opportunity,

including     the     statutory      opportunity    under     Wis.     Stat.

§ 343.305(4), to withdraw his consent previously given . . . ."

Id.

                                      II

      ¶94   The Fourth Amendment to the United States Constitution

and Article I, Section 11 of the Wisconsin Constitution protect

against unreasonable searches and seizures.             State v. Eason,

2001 WI 98, ¶16, 245 Wis. 2d 206, 629 N.W.2d 625.            A warrantless

search is presumptively unreasonable unless an exception to the
warrant requirement applies.          State v. Tullberg, 2014 WI 134,

¶30, 359 Wis. 2d 421, 857 N.W.2d 120.

      ¶95   One such exception to the warrant requirement is a

search conducted pursuant to consent.            State v. Artic, 2010 WI

83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430.              The lead opinion

correctly states that relevant words, gestures or conduct may

support a finding of consent.         Lead op., ¶20 (citing Artic, 327




                                      3
                                                                   No.   2015AP304-CR.awb


Wis. 2d 392,       ¶30).3         However,      it   errs     by     departing      from

Mitchell's "words, gestures or conduct" to determine that he

impliedly consented for the state to draw his blood.

       ¶96     The lead opinion's conclusion is based on Wisconsin's

implied consent laws, one subsection of which provides that any

person operating a motor vehicle in Wisconsin "is deemed to have

given consent to one or more tests of his or her breath, blood

or urine" when requested to do so by a law enforcement officer

in certain circumstances.             Wis. Stat. § 343.305(2).

       ¶97     Another       subsection         specifically         addresses       the

situation       where    a   driver    is    unconscious.           Wisconsin     Stat.

§ 343.305(3)(b) provides that "[a] person who is unconscious or

otherwise not capable of withdrawing consent is presumed not to

have       withdrawn    consent    under    this     subsection."          It   further

states that a law enforcement officer may administer a breath,

blood, or urine test if probable cause exists that the driver

has committed any of a list of offenses.                Id.



       3
       The lead also cites State v. Phillips, 218 Wis. 2d 180,
197, 577 N.W.2d 794 (1998), for the proposition that consent to
search need not be given verbally. Lead op., ¶21. In Phillips,
when asked by law enforcement whether they could search the
defendant's bedroom, "the defendant did not respond verbally,
but he opened the door to and walked into his bedroom, retrieved
a small baggie of marijuana, handed the baggie to the agents,
and pointed out a number of drug paraphernalia items."       218
Wis. 2d at 197.    The court concluded that "[t]he defendant's
conduct provides a sufficient basis on which to find that the
defendant consented to the search of his bedroom."     Id.   The
affirmative assistance provided by the defendant in response to
a request to search in Phillips is a far cry from the complete
lack of response from the defendant here.


                                            4
                                                                    No.    2015AP304-CR.awb


      ¶98       In   determining    whether        the    warrantless       taking        of    a

blood draw from an unconscious person pursuant to Wis. Stat.

§ 343.305(3)(b)          violates       the   Fourth        Amendment,      I   begin          my

analysis with Birchfield v. North Dakota, 579 U.S. __, 136 S.

Ct. 2160 (2016).          In Birchfield, the United States Supreme Court

determined that "a breath test, but not a blood test, may be

administered as a search incident to a lawful arrest for drunk

driving."        Id. at 2185.

      ¶99       Birchfield emphasized the invasive nature of a blood

test, which is significant for Fourth Amendment purposes.                                  See

id. at 2184.           In comparison to a breath test, a blood test is

"significantly more intrusive[.]"                   Id.     As an intrusion "beyond

the   body's         surface,"      a    blood       test     implicates        paramount

"interests in human dignity and privacy[.]"                        Id. at 2183 (citing

Schmerber,       384    U.S.   at   769-70).          Indeed,      a    blood      test    can

provide     a    lot    more   information         than     just    a     person's    blood

alcohol content.4

      ¶100 The         Birchfield   court         further    addressed       the    precise
circumstances that have arisen in this case:

      It is true that a blood test, unlike a breath test,
      may be administered to a person who is unconscious
      (perhaps as a result of a crash) or who is unable to

      4
       "[A] blood test, unlike a breath test, places in the hands
of law enforcement authorities a sample that can be preserved
and from which it is possible to extract information beyond a
simple BAC reading.     Even if the law enforcement agency is
precluded from testing the blood for any purpose other than to
measure BAC, the potential remains and may result in anxiety for
the person tested."    Birchfield v. North Dakota, 579 U.S. __,
136 S. Ct. 2160, 2178 (2016).


                                              5
                                                                   No.   2015AP304-CR.awb

     do what is needed to take a breath test due to
     profound intoxication or injuries.    But we have no
     reason to believe that such situations are common in
     drunk-driving arrests, and when they arise, the police
     may apply for a warrant if need be.
136 S. Ct. at 2184-85 (emphasis added).

     ¶101 This     language     compels        a    single        conclusion:        law

enforcement needed a warrant here.                      First, the State concedes

that there were no exigent circumstances that would justify a

departure from the warrant requirement.5                     Second, the ultimate

holding   in    Birchfield     was    that          a     blood     test    cannot    be

administered as a search incident to arrest for drunk driving.

Id. at 2185.      The lead opinion's interpretation of the implied

consent   statutes      attempts     to       accomplish          exactly    what    the

Birchfield     court   said   violates        the   Fourth        Amendment——a      blood

test as a search incident to the arrest of an unconscious person

for drunk driving.6




     5
       See State v. Tullberg, 2014 WI 134, ¶30, 359 Wis. 2d 421,
857 N.W.2d 120.
     6
       The concurrence focuses on language in Birchfield stating
a blood test's "reasonableness must be judged in light of the
availability of the less intrusive alternative of a breath
test."   Birchfield, 136 S. Ct. at 2184; see concurrence, ¶¶77-
79.   It creatively interprets this language to indicate that,
because a breath test was unavailable due to Mitchell's
unconsciousness, a blood test was constitutionally reasonable.
Id., ¶80.     The concurrence's analytical exercise ultimately
fails because it cannot be reconciled with Birchfield's central
holding:    "a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk
driving." Birchfield, 136 S. Ct. at 2185 (emphasis added).

                                                                            (continued)
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      ¶102 Unlike the lead opinion, I would follow, rather than

attempt to overrule, the court of appeals in State v. Padley,

2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867.                      The Padley

court   emphasized     that,    when    analyzing    whether     there    was   a

consensual search, the determining factor was whether the driver

gave actual consent to the blood draw:

      [T]he implied consent law is explicitly designed to
      allow the driver, and not the police officer, to make
      the choice as to whether the driver will give or
      decline to give actual consent to a blood draw when
      put to the choice between consent or automatic
      sanctions. Framed in the terms of "implied consent,"
      choosing the "yes" option affirms the driver's implied
      consent and constitutes actual consent for the blood
      draw.   Choosing the "no" option acts to withdraw the
      driver's implied consent and establishes that the
      driver does not give actual consent.
354   Wis. 2d 545,     ¶39.     As    Justice    Abrahamson     has   explained,

"[t]he Padley court concluded that a driver's actual consent

occurs after the driver has heard the Informing the Accused

Form,   weighed      his   or   her    options    (including      the    refusal

penalties),    and    decided    whether    to    give   or   decline     actual

consent."     State v. Brar, 2017 WI 73, ¶116, 376 Wis. 2d 685, 898

N.W.2d 499 (Abrahamson, J., dissenting).




     Federal and state courts around the country have cited the
"but not a blood test" language a multitude of times.       See,
e.g., Robertson v. Pichon, 849 F.3d 1173, 1184 n.7 (9th Cir.
2017; Espinoza v. Shiomoto, 215 Cal. Rptr. 3d 807, 829 (Ct. App.
2017); State v. Ryce, 396 P.3d 711, 717 (Kan. 2017); State v.
Reynolds, 504 S.W.3d 283, 307 (Tenn. 2016). The concurrence is
unable to cite to any court that eschews the clear language of
Birchfield's   central   holding   in  favor   of   the   unique
interpretation it now embraces.


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       ¶103 That implied consent and actual consent are separate

and distinct concepts is confirmed by an analysis of recent

United States Supreme Court precedent in addition to Birchfield.7

In    Missouri      v.     McNeely,      the    Supreme         Court      determined           that

"[w]hether a warrantless blood test of a drunk-driving suspect

is    reasonable     must     be    determined          case    by    case     based       on    the

totality of the circumstances."                        569 U.S. 141, 156 (2013).                   A

case by case determination is the antithesis of a categorical

exception.         Although McNeely was an exigent circumstances case,

the    court's      emphasis       on    the    totality        of     the     circumstances

suggests broad application of the case by case determinations it

requires.           Brar,     376       Wis. 2d 685,           ¶122     (Abrahamson,             J.,

dissenting).

       ¶104 Indeed,         the     Supreme        Court       implied        such     a    broad

application of McNeely in Aviles v. Texas, 571 U.S. 1119 (2014).

In    Aviles,      the    Court     vacated        a    Texas     judgment      upholding         a

warrantless        blood    draw     based      not      on    actual      consent         but   on

implied consent derived through the Texas implied consent law.
571 U.S. 1119 (2014).               The Court further remanded the Aviles

case to the Texas court of appeals for further consideration in

light of McNeely.           Id.

       ¶105 "Aviles suggests that McNeely should be read broadly

to    apply   to    all    warrantless         blood      draws      and   that      the    Texas

implied consent statute was not a per se exception to the Fourth

       7
       For further in-depth analysis of this assertion, see State
v. Brar, 2017 WI 73, ¶¶119-126, 376 Wis. 2d 685, 898 N.W.2d 499
(Abrahamson, J., dissenting).


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                                                                     No.   2015AP304-CR.awb


Amendment     justifying          warrantless          blood     draws."         Brar,      376

Wis. 2d 685, ¶123 (Abrahamson, J., dissenting).                            On remand the

Texas court of appeals concluded that the Texas implied consent

statute "flies in the face of McNeely's repeated mandate that

courts must consider the totality of the circumstances of each

case."       Aviles v. State, 443 S.W.3d 291, 294 (Tex. Ct. App.

2014).

      ¶106 The upshot of these United States Supreme Court cases

is that reliance on an implied consent statute to provide actual

consent      to    a     Fourth       Amendment        search      violates        McNeely's

requirement that each blood draw in a drunk driving case be

analyzed on a case by case basis.                      The implied consent statute

attempts      to       create     a    per    se       exception     to      the      warrant

requirement.           Of course, categorical consent is by definition

not individualized.

      ¶107 The lead opinion employs the simple act of driving an

automobile as justification for a search.                         The untenability of

the   lead    opinion's         position     is    aptly       illustrated       by   Justice
Kelly's concurrence in Brar, 376 Wis. 2d 685, ¶¶59-66 (Kelly,

J., concurring).              As Justice Kelly explains, a court's normal

constitutional inquiry into whether consent is given involves an

examination        of    the      totality        of    the     circumstances         and    a

determination          that     the   consent      was     voluntary       and     not   mere

acquiescence to authority.                 Id., ¶¶59-62.           On the other hand,

"[f]or 'consent' implied by law, we ask whether the driver drove

his car."     Id., ¶64.



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                                                                   No.   2015AP304-CR.awb


     ¶108 Further, the lead opinion errs by relying not on a

constitutionally        well-recognized           exception        to      the       warrant

requirement,    but     instead     on    a     Wisconsin    statute,          to    curtail

constitutional protections.               By seeking to create a statutory,

per se consent exception to the warrant requirement, the lead

opinion further steps into a minefield.                     See lead op., ¶¶53-55

(asserting that Mitchell "forfeited the statutory opportunity to

withdraw the consent to search that he had given.").

     ¶109 A     blood    draw       is    plainly     a     "search"        for      Fourth

Amendment     purposes.            Birchfield,       136      S.     Ct.        at     2185.

Accordingly,     one    has    a    constitutional          right,       not     merely    a

statutory right, to refuse such a search absent a warrant or an

applicable exception.8         See State v. Dalton, 2018 WI 85, ¶61, __

Wis. 2d __, __ N.W.2d __.                Under the lead opinion's analysis,

however, the opportunity to refuse an unconstitutional search is

merely   a   matter     of    legislative        grace.       If     the       ability    to

withdraw     consent    is    merely      statutory,      could      the    legislature

remove the ability to withdraw consent entirely?                         For the Fourth
Amendment to have any meaning, such a result cannot stand.

     ¶110 I     therefore          conclude       that      implied        consent        is

insufficient for purposes of a Fourth Amendment search.                              As the

     8
       The lead opinion's reliance on South Dakota v. Neville,
459 U.S. 553, 560 n.10 (1983), is misplaced.      See lead op.,
¶¶38-39.   Neville was decided pre-McNeely and pre-Birchfield.
Both McNeely and Birchfield have had a significant effect on
drunk driving law, and highlight the constitutional nature of a
blood draw. Both cases analyze breath and blood tests as Fourth
Amendment searches and appear to supersede the statement from
the Fifth Amendment Neville case on which the lead opinion
relies.


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court of appeals explained in Padley, the implied consent law

does     not    authorize    searches.            Rather,     it        authorizes    law

enforcement      to    require   a   driver      to   make    a    choice:       provide

actual consent and potentially give the state evidence that the

driver    committed      a   crime,    or       withdraw     implied       consent    and

thereby suffer the civil consequences of withdrawing consent.

Padley, 354 Wis. 2d 545, ¶39.

       ¶111 A person who is unconscious cannot make this choice.

Because    he    was    unconscious,       Mitchell     did       not    react   to   the

Informing the Accused Form when law enforcement presented him

with his options.        He exhibited no "words, gestures, or conduct"

that would indicate his actual consent to a blood draw.                               See

Artic, 327 Wis. 2d 392, ¶30.

       ¶112 Because consent provided solely by way of an implied

consent statute is not constitutionally sufficient, I determine

that the results of Mitchell's blood draw must be suppressed.

Accordingly, I respectfully dissent.

       ¶113 I    am    authorized     to    state     that    Justice       SHIRLEY   S.
ABRAHAMSON joins this dissent.




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