                                                                                2017 WI 77

                  SUPREME COURT                 OF     WISCONSIN
CASE NO.:              2015AP450-CR
COMPLETE TITLE:
                       State of Wisconsin,
                                 Plaintiff-Appellant,
                            v.
                       Adam M. Blackman,
                                 Defendant-Respondent-Petitioner.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at 371 Wis. 2d 635, 886 N.W.2d 94
                                  PDC No: 2016 WI App 69 - Published

OPINION FILED:         July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 12, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Fond du Lac
   JUDGE:              Gary R. Sharpe

JUSTICES:
   CONCURRED:          ZIEGLER, J. concurs, joined by GABLEMAN, J.
                       (opinion filed).
  DISSENTED:           ROGGENSACK, C.J. dissents (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-respondent-petitioner, there were briefs
by Dennis M. Melowski and Melowski & Associates, LLC, Sheboygan,
with    whom      on   the    briefs    were    Chad   A.   Lanning    and        Lubar   &
Lanning,        LLC,   West     Bend,     and   oral   argument       by        Dennis    M.
Melowski.


       For the plaintiff-appellant there was a brief by Michael C.
Sanders,        assistant      attorney    general,     and    Brad        D.     Schimel,
attorney general, and an oral argument by Michael C. Sanders.
                                                                            2017 WI 77
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2015AP450-CR
(L.C. No.    2013CF659)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Appellant,
                                                                         FILED
      v.
                                                                     JUL 7, 2017
Adam M. Blackman,
                                                                       Diane M. Fremgen
              Defendant-Respondent-Petitioner.                      Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                      Reversed and

remanded.


      ¶1      SHIRLEY     S.   ABRAHAMSON,   J.       This    is    a   review     of    a

published decision of the court of appeals reversing a decision

of the Circuit Court for Fond du Lac County, Gary R. Sharpe,

Judge.1      The circuit court granted Adam M. Blackman's motion to

suppress the results of a blood test obtained under Wisconsin's




      1
       State v. Blackman, 2016 WI App 69, 371 Wis. 2d 635, 886
N.W.2d 94.
                                                          No.    2015AP450-CR



implied consent law, Wis. Stat. § 343.305(3)(ar)2. (2013-14).2

The court of appeals reversed the order of the circuit court.

     ¶2   The issue presented is whether the consequences for

refusing to submit to a blood test requested under Wis. Stat.

§ 343.305(3)(ar)2. were misrepresented to Blackman and, if so,

whether that misrepresentation rendered Blackman's consent to

the blood draw coerced, that is, not freely and voluntarily

given under the Fourth Amendment.3       Furthermore, if the court




     2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
     3
       Blackman   presented   three   issues   in   his     petition     for
review:

     1. Whether the circuit court properly suppressed Mr.
     Blackman's warrantless blood test because he was
     unconstitutionally coerced into taking the test when
     he was read the informing the accused form which
     incorrectly told him that he faced a revocation and
     other penalties if he refused chemical testing, when
     he was actually only facing a possible arrest?

     2. Whether the circuit court below properly suppressed
     Mr. Blackman's blood test where Mr. Blackman was
     unconstitutionally coerced into taking the blood test,
     under the totality of the circumstances, when he
     acquiesced to the unlawful assertion by the officer
     that they take blood samples in cases like his——in
     addition to being told that he faced a revocation and
     other penalties if he refused?

     3.     Whether      Section    343.305(3)(ar)2.     is
     unconstitutional on its face and as-applied because it
     coerces consent to otherwise unconstitutional searches
     without due process of law?

                                                                (continued)
                                  2
                                                                 No.   2015AP450-CR



concludes that Blackman's consent to the blood draw was not

voluntary consent under the Fourth Amendment, the issue becomes

whether the court should apply the good faith exception to the

exclusionary rule and admit the evidence of the blood alcohol

concentration from the blood draw.

       ¶3     For the reasons set forth, we reverse the decision of

the   court    of   appeals,   affirm        the   suppression    order     of   the

circuit court, and decline to apply the good faith exception to

the exclusionary rule in the instant case.

       ¶4     The   Fourth   Amendment       ordinarily    requires     a   search

warrant for a blood draw unless one of the exceptions to the

warrant requirement exists.         Birchfield v. North Dakota, 136 S.

Ct. 2160, 2173 (2016).         In the instant case, the only exception

to    the   warrant   requirement    at       issue   is   whether     Blackman's

consent to the blood draw was given freely and voluntarily under

the Fourth Amendment.        When the legality of a warrantless search

is based on the consent of the defendant, that consent must be

freely and voluntarily given.                State v. Johnson, 2007 WI 32,
¶16, 299 Wis. 2d 675, 729 N.W.2d 182 (citing State v. Phillips,

218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998); Bumper v. North

Carolina, 391 U.S. 543, 548 (1968)).



     We need not and do not address the second and third issues
presented.   The second issue is substantially the same as the
first issue. Our decision on the first issue is dispositive of
the instant case.   Accordingly, we need not and do not address
the third issue challenging the constitutionality of Wis. Stat.
§ 343.305(3)(ar)2.


                                         3
                                                                     No.     2015AP450-CR



       ¶5     Blackman     submitted     to     a    blood    draw       after     Deputy

Sheriff John Abler stated the consequences of refusing to submit

to a test:         Blackman (who was not suspected of a drunk-driving

offense) was told that his operating privilege would be revoked

if he refused to submit to a blood draw.                     This information was

not accurate.         A driver who was not suspected of a drunk-driving

offense would prevail at a refusal hearing and his operating

privilege          would   not     be     revoked.            See          Wis.     Stat.

§ 343.305(9)(a)5.a.

       ¶6     For the reasons set forth, we conclude that the State

did not prove by clear and convincing evidence that Blackman's

consent to the blood draw was valid, that is, that it was freely

and voluntarily given under the Fourth Amendment.                          Because the

exclusionary rule's deterrent effect will be served in instant

case    by    suppressing     evidence     of       Blackman's   blood        test,   we

decline to apply the good faith exception to the exclusionary

rule.        The    results   of   Blackman's        blood   draw     are     therefore

suppressed.
       ¶7     Accordingly,       the   cause    is    remanded      to     the    circuit

court to reinstate its order suppressing the evidence and for

further proceedings not inconsistent with the decision of this

court.

       ¶8     Our decision is organized as follows:

       I. We state the facts.

       II. We state the standard of review.

       III. Our analysis proceeds as follows:


                                          4
                                                                            No.    2015AP450-CR



          (A) We examine Wis. Stat. § 343.305 to determine whether

                license       revocation        is     a    statutory      consequence         had

                Blackman refused to submit to a chemical test under

                Wis. Stat. § 343.305(3)(ar)2.                     We conclude that it is

                not.

          (B) We determine whether Blackman's consent to the blood

                draw        was        obtained          through         misrepresentation,

                rendering his consent coerced, that is, not voluntary

                and    free    consent         under       the    Fourth    Amendment.             We

                conclude       that       the       consent       was     obtained       through

                misrepresentation and was coerced.

          (C) We       determine         whether         to      apply     the    good     faith

                exception         to    the    exclusionary         rule    in    the    instant

                case.       We conclude that the good faith exception does

                not apply in the instant case.

                                                I

    ¶9      For purposes of the motion to suppress evidence of

Blackman's blood test, the statement of facts is brief and not
in dispute.

    ¶10     At about 10 A.M. on the morning of June 22, 2013,

Blackman was driving his car in a northeast direction on County

Highway    WH    in     the    Town      of    Taycheedah,         Fond     du    Lac    County.

Blackman    made       a    left       turn   onto       Lakeview       Road.      As    he    was

turning,    his       car   collided          with   a     bicyclist       travelling         in    a

southwest direction on County Highway WH.

    ¶11     A witness at the scene explained that Blackman's car
collided with the bicyclist, causing the bicyclist to "fly up in
                                                5
                                                                  No.     2015AP450-CR



the air, over the car, and land on the roadway."                       The bicyclist

suffered    great    bodily   harm,    including     a     mandibular      fracture,

fractures to both forearms, rib fracture, sinus fracture, a C6

vertebrae    fracture,    liver    laceration,       lung       contusion,      and   a

subdural hemorrhaging brain bleed.

    ¶12     Blackman and the witness both stopped to check on the

bicyclist.

    ¶13     Shortly    after     the   collision,         Fond    du     Lac    Deputy

Sheriff John Abler was dispatched to the scene.

    ¶14     Deputy    Sheriff     Abler       testified    at    the     suppression

hearing that he had reason to believe that Blackman may have

violated a state or local traffic law by failing to yield to the

bicyclist and that the bicyclist sustained great bodily harm.

    ¶15     Deputy Sheriff Abler also testified that before the

blood test was administered he did not have reason to believe

that Blackman was under the influence of intoxicants.                           Deputy

Sheriff     Abler    testified    in    response      to     questions         by   the

prosecutor about any signs of intoxication as follows:

    Q: You noticed no odor of intoxicants coming from him?

    A: That's correct.

    Q: You noticed no slurred speech

    A: That is correct.

    Q: You noticed no bloodshot eyes?

    A: Correct.

    Q: You noticed no glassy eyes?

    A: Correct.

                                          6
                                                                 No.    2015AP450-CR


    Q: You noticed no glassy eyes?

    A: Correct.

    Q: Okay. You noticed no signs with his balance or
    coordination?

    A: I did not notice anything.

    Q: You did not notice any mental impairment on his
    part, meaning it didn't seem like he was intoxicated
    or impaired in any way. Would you agree?

    A: I agree.

    Q: Okay. And, in fact, during your entire contact with
    Mr. Blackman, you never observed anything that you
    would have attributed to even the consumption of
    alcohol. Would you agree?

    A: I agree.
    ¶16     Despite the absence of any signs that Blackman was

intoxicated, Deputy Sheriff Abler testified that he explained to

Blackman   that    it     was   "standard     operating    procedure      for   the

department, when drivers are involved in accidents of a serious

nature,    to    obtain    a    blood   sample."     Blackman      went    to   the

hospital and submitted to a blood test.              Although Blackman rode

in Deputy Sheriff Abler's squad car to the hospital, he was not

considered under arrest.

    ¶17     At    the     hospital,     Deputy   Abler    read    the    statutory

Informing the Accused Form4 to Blackman verbatim and requested

that Blackman submit to a blood draw.                The test of his blood

revealed an alcohol concentration of .104.



    4
        The form is set forth verbatim in Wis. Stat. § 343.305(4).


                                          7
                                                                               No.       2015AP450-CR



     ¶18       The    State       charged    Blackman          with     multiple          offenses:

Reckless       driving        causing        great          bodily      harm,5        injury       by

intoxicated use of a vehicle,6 injury by use of a vehicle with a

prohibited       alcohol          concentration             (PAC),7    operating            a   motor

vehicle while under the influence of an intoxicant (OWI) first

offense,8 and operating a motor vehicle with a PAC.9

     ¶19       At a pretrial suppression hearing, the circuit court

suppressed the evidence obtained from the blood draw on the

ground    that       Blackman's      consent          was     obtained    by       misstatements

about    the    consequences         of     his       refusal    to     take       the    test   and

therefore his consent was coerced.

     ¶20       According      to     the    circuit          court,     the     Informing        the

Accused Form under Wis. Stat. § 343.305(4) misstates the law by

declaring        that        the      refusal           to      take      a          test       under

§ 343.305(3)(ar)2.            will     lead       to        revocation        of     a      driver's

operating       privilege.             The        circuit        court        concluded          that

revocation      for     a   refusal        under       Wis.    Stat.     § 343.305(3)(ar)2.

would be "statutorily unenforceable" because the issues at a
refusal     hearing         are    "limited           to"     whether    the         officer     had

probable cause to arrest for an OWI-related offense, whether the


     5
         Wis. Stat. § 346.62(4).
     6
         Wis. Stat. § 940.25(1)(a).
     7
         Wis. Stat. § 940.25(1)(b).
     8
         Wis. Stat. § 346.63(2)(a)1.
     9
         Wis. Stat. § 346.63(2)(a)2.


                                                  8
                                                                      No.    2015AP450-CR



officer complied with and read the Informing the Accused form,

and whether the driver refused to permit the test.

      ¶21    Because the Deputy Sheriff had no probable cause to

arrest Blackman for an OWI-related offense, the circuit court

concluded    that    "if     the    statutory      scheme     does    not    support   a

revocation that is threatened, this Court finds that coercion

has occurred."        The circuit court ordered the evidence of the

blood test suppressed.

      ¶22    The    court    of     appeals     reversed      the    circuit     court's

order.      It ruled, relying on State v. Padley, 2014 WI App 65,

354   Wis. 2d 545,         849     N.W.2d 867,      that      Blackman       "impliedly

consented"    to    the     blood    draw     by   driving     in    Wisconsin;     that

Blackman had a choice to submit a sample (actual consent) or to

withdraw consent (refusal); that Blackman freely chose not to

withdraw consent; that the Deputy Sheriff's misstatement of the

statute     did    not    "transform        Blackman's       freely     given     actual

consent under Wisconsin's implied consent law into a coerced

submittal."        State v. Blackman, 2016 WI App 69, ¶¶2, 5, 10-12,
371 Wis. 2d 635, 886 N.W.2d 94.

      ¶23    The    concurring        opinion      in   the     court       of   appeals

acknowledged that Blackman had a "legitimate gripe" about the

form read to him.           According to the concurrence, even if the

form is "technically correct," it is "incomplete and imprecise,




                                            9
                                                                           No.    2015AP450-CR



no doubt" but "not inaccurate," and the "threat of revocation

was real, even if its longer term effects were in doubt."10

      ¶24       For the reasons set forth, we reverse the decision of

the court of appeals,                affirm the circuit court's order, and

remand the cause to the circuit court for further proceedings

not inconsistent with the decision of this court.

                                                 II

      ¶25       We first address the standard of review.                         "Our review

of an order granting or denying a motion to suppress evidence

presents a question of constitutional fact."                           State v. Tullberg,

2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d 120.                               We review a

question        of    constitutional         fact        under    a    two-step     inquiry:

First,     we    will       uphold    the    circuit       court's      findings    of     fact

unless those findings are clearly erroneous.                           Second, we conduct

an   independent,            de    novo     analysis        of    the      application      of

constitutional             principles       to     the    facts       found.       State     v.

Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463.

      ¶26       We are also asked to interpret and apply Wis. Stat.
§ 343.305,           the    implied       consent        law.         Interpretation        and

application of a statute is generally a question of law that

this court decides independently of the circuit court or court

of   appeals,         but    benefiting          from    their    analyses.        State     v.

Harrison, 2015 WI 5, ¶37, 360 Wis. 2d 246, 858 N.W.2d 372; State

v. DuBose, 2005 WI 126, ¶16, 285 Wis. 2d 143, 699 N.W.2d 582.

      10
       Blackman,             371     Wis. 2d 635,         ¶¶16,       18   (Hagedorn,       J.,
concurring).


                                                 10
                                                                       No.      2015AP450-CR



                                         III

      ¶27   As we stated earlier, the issue presented is whether

the    consequences        for    refusing       to     submit    to      a    blood     test

requested        under       Wis.       Stat.            § 343.305(3)(ar)2.              were

misrepresented        to     Blackman         and,       if      so,      whether        that

misrepresentation rendered Blackman's consent to the blood draw

coerced under the Fourth Amendment.                      We answer both parts of

this question in the affirmative.

                                            A

      ¶28   We first consider the statutory provisions.

      ¶29   Under Wis. Stat. § 343.305(2), any person who drives

or    operates    a   motor       vehicle        upon    the     public       highways    of

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 under [Wis. Stat. § 343.305]

sub. (3)(a) or (am) or when required to do so under sub. (3)(ar)

or (b)."

      ¶30   In the instant case, Deputy Sheriff Abler requested
Blackman    to   submit      to   a   blood       draw    pursuant     to      Wis.    Stat.

§ 343.305(3)(ar)2., which provides in relevant part as follows:

      If a person is the operator of a vehicle that is
      involved in an accident that causes the death of or
      great bodily harm to any person         and the law
      enforcement officer has reason to believe that the
      person violated any state or local traffic law, the
      officer may request the operator to provide one or
      more samples of his or her breath, blood, or
      urine . . . . If a person refuses to take a test under
      this subdivision, he or she may be arrested under par.
      (a). (Emphasis added.)


                                            11
                                                                     No.     2015AP450-CR



       ¶31   Five observations about Wis. Stat. § 343.305(3)(ar)2.:

       ¶32   First, Wis. Stat. § 343.305(3)(ar)2. provides that if

the driver refuses to take a test, he or she may be arrested.11

Blackman's blood was drawn for a test.                He was not arrested.

       ¶33   Second, Wis. Stat. § 343.305(3)(ar)2. does not provide

that    if   the   driver     refuses    to    take     a    test,     the     driver's

operating privilege will be revoked.

       ¶34   Third,    under    Wis.    Stat.       § 343.305(3)(ar)2.,           unlike

under other provisions of § 343.305, an officer may request a

blood draw without having a scintilla of a suspicion that the

driver is intoxicated.         The officer need have reason to believe

only that a driver violated a state or local traffic law and was

in an accident that caused great bodily harm.12

       ¶35   Fourth,    the    State     argues       that    if     Blackman       were

arrested     for   refusing      to     take    a     test    under        Wis.   Stat.

       11
       Upon a Wis. Stat. § 343.305(3)(ar)2. refusal, the person
may be arrested, and asked to submit to a test under
§ 343.305(3)(a).   A refusal under § 343.305(3)(a) will lead to
revocation and "other penalties" under § 343.305(9)(a):    "If a
person refuses to take a test under sub. (3)(a), the law
enforcement officer shall immediately prepare a notice of intent
to revoke . . . ."

     In discussing arrest in the instant case, the circuit court
exclaimed: "The question of the century is arrested for what?"
       12
       In    2009,    the   legislature    added   Wis.    Stat.
§ 343.305(3)(ar)2. to the implied consent law.    See 2009 Wis.
Act 163.    Prior to this Act, a law enforcement officer was
authorized to request that a driver submit to a test only after
the driver had been arrested for an OWI-related violation or the
officer had probable cause to believe the driver was under the
influence. See Wis. Stat. § 343.305(3)(a)-(b) (2006-07).


                                         12
                                                               No.        2015AP450-CR



§ 343.305(3)(ar)2., and if the officer then requested a sample

under § 343.305(3)(a), and if Blackman refused to give a sample,

the officer would be required to prepare a notice of intent to

revoke    Blackman's    operating    privilege    by     court       order       under

§ 343.305(9)(a).        Thus   the   State    argues    that     revocation        is

ultimately      available       under        § 343.305(3)(ar)2.              through

§§ 343.305(3)(a) and 343.305(9)(a).13

     ¶36    Fifth,    Wis.   Stat.   § 343.305(4)      sets    forth       the    text

that a law enforcement officer shall read to a person from whom

a test specimen is requested under Wis. Stat. § 343.305(3)(a),

(am), or (ar).         We refer to the text as the "Informing the

Accused" form.

     ¶37    Deputy Sheriff Abler read the full text of the form to

Blackman as provided in Wis. Stat. § 343.305(4) as follows:



     13
          Wisconsin    Stat.   § 343.305(3)(a)      provides         in     relevant
part:

     [U]pon arrest subsequent to a refusal under par. (ar),
     a law enforcement officer may request the person to
     provide one or more samples of his or her breath,
     blood or urine for the purpose specified under sub.
     (2). Compliance with a request for one type of sample
     does not bar a subsequent request for a different type
     of sample.

     Wisconsin Stat. § 343.305(9)(a) provides in relevant part:

     (9) Refusal; Notice and Court Hearing.      (a) If a
     person refuses to take a test under sub. (3)(a), the
     law enforcement officer shall immediately prepare a
     notice of intent to revoke, by court order under sub.
     (10) . . . .


                                      13
                                                 No.   2015AP450-CR


    Wis. Stat. § 343.305(4) Information.    [At the time
    that a chemical test specimen is requested under sub.
    (3)(a), (am), or (ar), the law enforcement officer
    shall read the following to the person from whom the
    test specimen is requested]:[14]

    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 both, 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, or
    you are suspected of driving or being on duty time
    with respect to a commercial motor vehicle after
    consuming an intoxicating beverage.

    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 any test shows more alcohol in your
    system than the law permits while driving, your
    operating privilege will be suspended.  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.

    If you take all the requested tests, you may choose to
    take further tests. You may take the alternative test
    that this law enforcement agency provides free of
    charge.    You also may have a test conducted by a
    qualified person of your choice at your expense. You,
    however, will have to make your own arrangements for
    that test.

    If you have a commercial driver license or were
    operating   a    commercial  motor    vehicle,  other
    consequences may result from positive test results or
    from refusing testing, such as being placed out of
    service or disqualified. (Emphasis added.)

    14
       We include this introductory material to demonstrate that
the legislature requires a law enforcement officer to read the
full text.   We assume that the law enforcement officer did not
read this introductory material to Blackman.


                               14
                                                                            No.     2015AP450-CR



       ¶38    The form differs from Wis. Stat. § 343.305(3)(ar)(2),

the statute applicable in the instant case.                             The form states

that    if        a        driver     refuses        to     take      any         test        under

§ 343.305(3)(ar)2., the driver's "operating privilege                                    will    be

revoked" and the driver "will be subject to other penalties."

The statute states only that if a driver refuses to take any

test under § 343.305(3)(ar)2. the driver may be arrested.                                       The

form, therefore, does not comport with § 343.305(3)(ar)2.                                       The

proper advice to Blackman under § 343.305(3)(ar)2. was that his

operating privilege would be revoked if he failed to request a

refusal hearing.

       ¶39    Blackman contends that the text of the form applied to

him    is    erroneous           as   a   matter     of     law,     misrepresented             the

consequences          if    he    refused      a   blood    test,     and     rendered          his

consent      to    the      blood     test    coerced      consent    under        the    Fourth

Amendment.

       ¶40    We      agree       with       Blackman      that    revocation            of     the

operating privilege is unenforceable against a driver who has
refused a test under Wis. Stat. § 343.305(3)(ar)2. if the driver

requests a refusal hearing.

       ¶41    Wisconsin Stat. § 343.305(9)(a) provides the penalty

for refusing a post-arrest request for a chemical test under

§ 343.305(3)(a); this is not the penalty for refusing to take a

test under Wis. Stat. § 343.305(3)(ar)2.                          Section 343.305(9)(a)

states in part:

       If a person refuses to take a test under sub. (3)(a),
       the law enforcement officer shall immediately prepare

                                                15
                                                         No.   2015AP450-CR


    a notice of intent to revoke, by court order under
    sub. (10), the person's operating privilege.15
    ¶42   Following receipt of notice of the State's intent to

revoke his or her operating privilege pursuant to Wis. Stat.

§ 343.305(9)(a),   the   driver    may   request   "a   hearing   on    the

revocation within 10 days . . . . If no request for a hearing is

received within the 10-day period, the revocation commences 30

days after the notice is issued."        Wis. Stat. § 343.305(9)(a)4.

See also § 343.305(10)(a).

    ¶43   Regarding      the      refusal    hearing,      Wis.        Stat.

§ 343.305(9)(a)5. limits the issues as follows:

    5. [The] issues of the hearing are limited to:

          a. Whether the officer had probable cause to
          believe the person was driving or operating a
          motor vehicle while under the influence of
          alcohol, a controlled substance or a controlled
          substance analog or any combination of alcohol, a
          controlled substance and a controlled substance

    15
       Under Wis. Stat. § 343.305(10)(a), the circuit court
shall revoke the driver's license only after it determines that
the driver improperly refused to take a test or that the driver
did not request a refusal hearing.       Section 343.305(10)(a)
provides:

    (a) If the court determines under sub. (9)(d) that a
    person improperly refused to take a test or if the
    person does not request a hearing within 10 days after
    the person has been served with the notice of intent
    to revoke the person's operating privilege, the court
    shall proceed under this subsection.    If no hearing
    was requested, the revocation period shall begin 30
    days after the date of the refusal. If a hearing was
    requested, the revocation period shall commence 30
    days after the date of refusal or immediately upon a
    final determination that the refusal was improper,
    whichever is later.


                                   16
                                                                No.     2015AP450-CR


           analog, under the influence of any other drug to
           a degree which renders the person incapable of
           safely driving, or under the combined influence
           of alcohol and any other drug to a degree which
           renders the person incapable of safely driving,
           having a restricted controlled substance in his
           or her blood, or having a prohibited alcohol
           concentration . . . .

           b. Whether the officer complied with sub. (4).[16]

           c. Whether      the person refused           to     permit       the
           test. . . .      (Emphasis added.)
    ¶44    Were    Blackman    to    have   had   a    refusal      hearing,      the

issues would have been "limited to" the State proving (a) that

the officer had probable cause to believe that the driver was

driving or operating a motor vehicle "under the influence"; (b)

that the officer complied with reading the Informing the Accused

form set forth in § 343.305(4); and (c) that the driver refused

to permit the blood test.           If the State did not prove all three

issues——and in the instant case, it could not prove that the

Deputy Sheriff had probable cause to believe that Blackman was

driving or operating a motor vehicle while under the influence

of alcohol——Blackman's operating privilege would not have been
revoked at the refusal hearing.

    ¶45    The     State      challenges      this      interpretation            and

application of Wis. Stat. § 343.305.

    ¶46    The State contends that if the driver refuses a test

under    Wis.    Stat.   § 343.305(3)(ar)2.,          which,     as    we    stated


    16
       Wisconsin Stat. § 343.305(4) pertains                   to     reading     the
Informing the Accused form to the driver.


                                       17
                                                                    No.     2015AP450-CR



previously,       is   not    an   OWI-related      offense,       the    officer    can

arrest      the   driver.          On     arrest,    the     driver       comes     under

§ 343.305(3)(a),        and    the      officer   can    request    the     driver    to

submit to a blood test under Wis. Stat. § 343.305(3)(a).                          If the

driver refuses to submit to a blood test under § 343.305(3)(a),

the officer may issue a notice of intent to revoke the person's

operating privilege.          Wis. Stat. § 343.305(9)(a).

      ¶47    The State acknowledges that Deputy Sheriff Abler did

not   arrest       Blackman,       did     not    proceed     under       Wis.      Stat.

§ 343.305(3)(a), and did not inform Blackman of each step of the

process.      But the State argues that the Deputy Sheriff properly

informed Blackman of the end result, that is, that Blackman's

operating privilege would be revoked.

      ¶48    The State further contends that Blackman would have

had   his    operating       privilege     revoked      at   the   refusal        hearing

because under Wis. Stat. § 343.305(9)(a)5. the only issues that

a driver who refused a test under Wis. Stat. § 343.305(3)(ar)2.

may raise at a refusal hearing are whether he or she was read
the Informing the Accused form and whether he or she actually

refused to submit to a chemical test.

      ¶49    The State supports this interpretation of Wis. Stat.

§ 343.305(9)(a)5. by relying on the legislative history of 2005

Wis. Act 413 and 2009 Wis. Act 163.                 According to the State, the

legislature did not intend to allow a person from whom a sample

is requested under Wis. Stat. § 343.305(3)(ar)2. to challenge

probable cause to arrest for an OWI-related offense at a refusal
hearing; the legislature intended that the only issues at the
                                           18
                                                                           No.      2015AP450-CR



refusal hearing would be those listed in § 343.305(9)(a)5.b. and

c.: "whether the officer complied with sub. (4)," and "whether

the person refused to permit the test."                            The State argues that

the     failure              to      remove        an    OWI-related     probable           cause

determination from a refusal hearing under                              § 343.305(3)(ar)2.

was a drafting error.17

       ¶50        An        alternative       interpretation,       however,         which       we

adopt,       based           on     the     text    of   the    statute,      is     that    the

legislature's failure to amend Wis. Stat. § 343.305(9)(a) meant

that        it        did     not     remove       the    OWI-related      probable         cause

requirement from a refusal hearing.                            The text of the statute

clearly provides that when an officer requests a blood test

pursuant          to    Wis.        Stat.    § 343.305(3)(ar)2.,        the   State        cannot

prevail          at    the    refusal       hearing      because   probable        cause    is   a

prerequisite to revocation of an operating license.

       ¶51        Because the State cannot prevail at a refusal hearing

following a driver's denial of a request for a blood test under

Wis. Stat. § 343.305(3)(ar)2., the Deputy Sheriff's reading of
the text of the "Informing the Accused" form misstated that

Blackman's operating privilege will be revoked.


       17
        The court of appeals seemed persuaded in the instant case
that the legislature committed a drafting error.     The court of
appeals wrote: "The fact that Blackman could have prevailed at
a refusal hearing due to the legislature's failure to amend the
refusal hearing statute does not transform Blackman's freely
given actual consent under Wisconsin's implied consent law into
a coerced submittal."   Blackman, 371 Wis. 2d 635, ¶12 (emphasis
added).


                                                    19
                                                              No.     2015AP450-CR



                                      B

     ¶52   We next determine whether Blackman's consent to the

blood draw was obtained through misrepresentation, rendering his

consent coerced, that is, not voluntarily and freely given under

the Fourth Amendment.

     ¶53   Blood draws are searches under the Fourth Amendment to

the United States Constitution18 and Article I, Section 11 of the

Wisconsin Constitution.19       See Birchfield, 136 S. Ct. at 2173;

Schmerber v. California, 384 U.S. 757, 767 (1966).                   Warrantless

searches are per se unreasonable and are unlawful, subject to a

few "clearly delineated" exceptions.                 State v. Artic, 2010 WI

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




     18
       The Fourth Amendment to the United States Constitution
provides:

     The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable
     searches and seizures, shall not be violated, and no
     Warrants shall issue, but      upon probable cause,
     supported by Oath or affirmation, and particularly
     describing the place to be searched, and the persons
     or things to be seized.
     19
       Article   I,   Section    11       of   the    Wisconsin     Constitution
provides:

     The right of the people to be secure in their persons,
     houses, papers, and effects against unreasonable
     searches and seizures shall not be violated; and no
     warrant shall issue but upon probable cause, supported
     by oath or affirmation, and particularly describing
     the place to be searched and the persons or things to
     be seized.


                                      20
                                                                No.    2015AP450-CR



      ¶54   In the instant case, the State relies on the consent

exception to the Fourth Amendment's warrant requirement.                       The

State must prove that consent to the blood draw was "given in

fact by words, gestures, or conduct" and that the consent was

"voluntary."       Artic,    327    Wis. 2d 392,      ¶30   (emphasis     added).

Further,    the   State     must    satisfy    that   burden     by    clear   and

convincing   evidence.        Artic,    327    Wis. 2d 392,     ¶32;    see    also

Bumper v. North Carolina, 391 U.S. 543, 548 (1968).20

      ¶55   Whether the consent was given in fact is a "question

of historical fact."         The finding of the circuit court will be

upheld "if it is not contrary to the great weight and clear

preponderance of the evidence."               Artic, 327 Wis. 2d 392, ¶30.

The   circuit     court     found    that     the   defendant     consented     to

providing a blood sample but concluded that the consent was

coerced.




      20
       The State appears to argue that, under the implied
consent law, all persons are deemed to have given actual consent
to a blood draw when they operate a vehicle on a Wisconsin
highway.      The State does not argue, however, that law
enforcement officers have the authority to compel drivers to
submit to a blood draw without a warrant or an exception to the
warrant requirement. The State acknowledges that drivers have a
"statutory opportunity to withdraw [their] consent."     Brief and
Supplemental Appendix of Plaintiff-Appellant-Petitioner (State
of Wisconsin) at 17. According to the State, a driver's choice
when asked to submit to a blood test "is to submit and affirm
the consent the person has already given, or refuse and withdraw
that consent, and face penalties."         Brief and Supplemental
Appendix   of    Plaintiff-Appellant-Petitioner  (State)   at  10.
Withdrawal of consent is not an issue in the instant case.


                                       21
                                                                         No.     2015AP450-CR



     ¶56    If the State establishes consent in fact, the State

must prove that the consent was given voluntarily and freely.

Schneckloth       v.    Bustamonte,          412     U.S.    218,    222,      225    (1973).

Voluntary        consent        must     be         "'an     essentially         free    and

unconstrained choice,' not 'the product of duress or coercion,

express    or    implied.'"          Artic,        327     Wis. 2d 392,     ¶32      (quoting

Schneckloth, 412 U.S. at 225, 227 (emphasis added)).21

     ¶57    The determination of voluntariness is based upon an

evaluation      of     the   totality        of    the     surrounding    circumstances.

Artic, 327 Wis. 2d 392, ¶32.                  Misrepresentation is an important

aspect of the totality of circumstances in the instant case.

     ¶58    In Birchfield, 136 S. Ct. at 2186, the Court concluded

that the officer inaccurately advised the accused that the law

required him to submit to a warrantless blood test.                               The Court

remanded     the       cause    to     the    state        court    to   reevaluate      the

accused's consent in light of the inaccuracy.

     ¶59    In Artic, quoting State v. Phillips, 218 Wis. 2d 180,

¶33, 577 N.W.2d 794 (1998), the court provided multiple non-
exclusive       factors,       including          misrepresentation,        to    determine

whether consent was given voluntarily:

     (1) whether the police used deception, trickery, or
     misrepresentation in their dialogue with the defendant
     to persuade him to consent; (2) whether the police
     threatened or physically intimidated the defendant or

     21
        See also Bumper v. North Carolina, 391 U.S. 543, 548-49
(1968):    "[A] prosecutor [who] seeks to rely upon consent to
justify the lawfulness of a search[ ] has the burden of proving
that the consent was, in fact, freely and voluntarily given.").


                                              22
                                                            No.     2015AP450-CR


    "punished" him by the deprivation of something like
    food or sleep; (3) whether the conditions attending
    the request to search were congenial, non-threatening,
    and cooperative, or the opposite; (4) how the
    defendant responded to the request to search; (5) what
    characteristics   the   defendant  had   as  to   age,
    intelligence,   education,   physical  and   emotional
    condition, and prior experience with the police; and
    (6) whether the police informed the defendant that he
    could refuse consent.
Artic, 327 Wis. 2d 392, ¶33 (citing Phillips, 218 Wis. 2d at

198-203) (emphasis added).

    ¶60    Although     the     most   pertinent     consideration     in   the

instant case is       whether misrepresentation        rendered Blackman's

consent coerced, we also consider the other factors described in

Artic and Phillips.     See Artic, 327 Wis. 2d 392, ¶33.

    ¶61    Here   are     the     other     considerations.         This    was

Blackman's first OWI offense.          There is nothing in the record to

indicate   that   Blackman       was    physically    intimidated     or    that

Blackman was uncooperative.            The Deputy Sheriff testified that

Blackman's response to the request for a blood draw was that he

did not specifically agree or disagree or refuse or give any

indication that he was going to refuse.22             Blackman was informed

    22
       The prosecutor's question and the Deputy Sheriff's answer
at the suppression hearing regarding whether Blackman was
coerced into taking a blood test is as follows:

    Q: [Prosecutor] . . . Is there anything else you can
    tell me that would give us some information as to
    whether or not Mr. Blackman was forced or coerced or
    threatened in any way to consent to an evidentiary
    chemical test of his blood?

    A: [Deputy Sheriff Abler] No, he was not. In fact he
    was very cooperative throughout the whole procedure.

                                                                  (continued)
                                       23
                                                        No.    2015AP450-CR



that he could refuse to take the test.              He was incorrectly

informed that his operating privilege would be revoked if he

refused the request for a blood draw.

    ¶62   We    therefore   address     the    effect   of    the   Deputy

Sheriff's "inaccuracy" or "misrepresentation" of consequences on

the validity of Blackman's consent under the Fourth Amendment.

    ¶63   We conclude that because Blackman's consent was the

product   of   misrepresentation   by    the   State,   and    under   the

totality of the circumstances, the State has not carried its

burden of proving that Blackman's consent was voluntarily and

freely given under the Fourth Amendment.            The State did not



     The circuit court's questioning of the Deputy Sheriff about
Blackman's taking a blood test is as follows:

    Q: [The Circuit Court] Did you tell him why you were
    going to the hospital and why he should ride in your
    car?

    A: [Deputy Sheriff Abler] Well, I'm sure I told him
    that. I know I explained our normal procedure is when
    there is a serious accident like this that we do take
    blood samples.

    Q: Okay. So he knew he was going to the hospital for
    a blood sample?

    A: Yes, he did.

    Q: Did he say anything to you about agreeing to have a
    blood sample and when you got in the car and before
    you guys took off to go to the hospital?

    A: I don't know that he specifically agreed, but he
    did not disagree or refuse or give me any indication
    that he was going to refuse.


                                   24
                                                                       No.   2015AP450-CR



prove Blackman's consent was the result of "an essentially free

and unconstrained choice."             Schneckloth, 412 U.S. at 225.

       ¶64    In the instant case, Deputy Sheriff Abler was directed

by statute to read the Informing the Accused form to Blackman.

The text of the form advised Blackman that the Deputy Sheriff

was requesting to test a sample of Blackman's blood.                           The form

inaccurately advised Blackman of the penalty for refusal.                             The

text    of    the    form      inaccurately       advised        Blackman     that     his

operating privilege would be revoked.                      This penalty did not

apply to Blackman.

       ¶65    The    Deputy      Sheriff         advised     Blackman         that     the

Department's        standard    operating        procedure       was   to    take    blood

under   the    circumstances          in   the   instant     case.       Although     the

Deputy Sheriff did not tell Blackman that a blood draw would be

performed without his consent, Blackman could have drawn this

inference     from    the   statement       of    the    Department's        policy    and

could have concluded that he had no real choice but to take a

blood test.
       ¶66    Considering       the    totality     of     the    circumstances,        we

conclude that the State failed to meet its burden to prove that

Blackman     voluntarily       and    freely     consented       to    the   blood    draw

under the Fourth Amendment.                All things considered, Blackman's

consent to the blood draw was not voluntary and free, and was

not an unconstrained choice; it was the product of coercion,

express or implied, and therefore was invalid under the Fourth

Amendment.


                                            25
                                                                        No.        2015AP450-CR



    ¶67        Thus, the evidence obtained through the blood draw was

the result of an unlawful search.

                                            C

    ¶68        Ordinarily,       evidence       obtained      through         an     unlawful

search is excluded at trial.                 The exclusionary rule generally

serves    to    "deter     deliberate,      reckless,         or   grossly          negligent

conduct,       or   in     some    circumstances            recurring         or     systemic

negligence."          Herring v. United States, 555 U.S. 135, 150-51

(2009).     In State v. Dearborn, 2010 WI 84, ¶36, 327 Wis. 2d 252,

786 N.W.2d 97, the court stated the circumstance under which the

exclusionary rule applies as follows:

    To trigger the exclusionary rule, police conduct must
    be   sufficiently   deliberate  that   exclusion   can
    meaningfully deter it, and sufficiently culpable that
    such deterrence is worth the price paid by the justice
    system.   As laid out in our cases, the exclusionary
    rule serves to deter deliberate, reckless, or grossly
    negligent conduct, or in some circumstances recurring
    or systemic negligence.
    ¶69        The State asks that the results of the blood draw in

the instant case be admitted in evidence because Deputy Sheriff

Abler acted in good faith.

    ¶70        Courts     have    applied       the    good    faith     exception         and

deviated from the exclusionary rule in only a few types of cases

and in limited circumstances.                    The good faith exception has

generally      been      applied   when     a    law    enforcement           officer      has

reasonably       and     objectively      relied       on     settled     law        (whether

statute23 or binding judicial precedent24) that was subsequently
    23
          Illinois v. Krull, 480 U.S. 340, 349-50 (1987).


                                            26
                                                                     No.    2015AP450-CR



overruled or a warrant that was subsequently invalidated25 or

that was based on erroneous information resulting from isolated

police negligence attenuated from the arrest.26

     ¶71    The parties cite no case, and we have found none,

applying the good faith exception to the exclusionary rule to a

situation    in     which        a   law   enforcement     officer       followed   the

requirements      of        a    statute   and     gave   an     accused    inaccurate

information upon which the accused's coerced consent was based.

     ¶72    The State argues that Deputy Sheriff Abler's conduct

and the Department's procedure complied with the statute; that a

     24
          Davis v. United States, 564 U.S. 229, 241 (2011).
     25
       Arizona v. Evans, 514 U.S. 1, 14 (1995); United States v.
Leon, 468 U.S. 897, 918 (1984).

     Although the court often interprets Article I, Section 11
of   the   Wisconsin   Constitution  in   conformity   with  the
interpretation of the Fourth Amendment, in State v. Eason, 2001
WI 98, ¶3, 245 Wis. 2d 206, 629 N.W.2d 625, the court adopted a
"Leon-plus" good faith rule relying on Article I, Section 11 of
the Wisconsin Constitution.      The court concluded that this
provision "guarantees more protection than the Fourth Amendment
provides under the good faith exception as adopted in Leon:"

     We hold that the good faith exception applies where
     the State has shown, objectively, that the police
     officers reasonably relied upon a warrant issued by an
     independent magistrate. The burden is upon the State
     to also show that the process used in obtaining the
     search warrant included a significant investigation
     and a review by either a police officer trained and
     knowledgeable in the requirements of probable cause
     and   reasonable   suspicion,   or   a   knowledgeable
     government attorney. (Emphasis added.)
     26
          Herring      v.       United   States,    555   U.S.    135,     137,   147-48
(2009).


                                            27
                                                                       No.     2015AP450-CR



law   enforcement        officer         cannot    be     expected     to     question     a

legislative       enactment         or     Department        procedure;        that      the

exclusionary rule is not intended to deter the legislature; and

that the exclusionary rule's deterrent effect on law enforcement

conduct would not be served by suppressing the evidence of the

blood draw in the instant case.

      ¶73   The State's argument is not persuasive.                          The error in

the instant case is not an error attributable solely to the

legislature.      Nor does the instant case present an isolated or

nonrecurring error in the criminal justice system.                             It evinces

the potential of a "recurring or systemic" error, a widespread

error, affecting the rights of an accused.                          The accused has a

constitutional right under the Fourth Amendment, unless another

exception to the warrant requirement exists, for law enforcement

officers to obtain his or her free and voluntary consent to a

blood draw or to obtain a search warrant for the blood draw.

Unless   the   evidence        in   the     instant       case   is    suppressed,       law

enforcement officers across the state will continue to read the
Informing the Accused form to accuseds in the same situation as

Blackman without providing correct information to provide the

basis for the accused's voluntary consent.

      ¶74   The    exclusionary           rule's        deterrent     effect     will     be

served if the evidence in the instant case is suppressed.

      ¶75   The application of the good faith exception to the

exclusionary      rule    is    not       appropriate       in   the    instant       case.

Accordingly, we conclude that the evidence of Blackman's blood
test should be suppressed.
                                             28
                                                                    No.   2015AP450-CR



       ¶76    The dissent contends that Washburn County v. Smith,

2008    WI   23,   308    Wis. 2d 65,      746    N.W.2d 243,       contravenes      our

holding that the misrepresentation in the Informing the Accused

Form requires suppression of the evidence and that the good

faith exception to the exclusionary rule does not apply in the

instant case.       The dissent errs.           Smith is inapposite.

       ¶77    In Smith, unlike in the instant case, the information

in     the   Informing     the     Accused      Form    was   not    challenged      as

incorrectly applying to the accused.                      Smith, 308 Wis. 2d 65,

¶¶65, 77.

       ¶78    The alleged misrepresentation in Smith was that the

law    enforcement       officer    gave   additional      information        that   was

incorrect to the accused from whom a breath test (not a blood

test) was requested.             Smith, 308 Wis. 2d 65, ¶¶54, 78.                    The

accused      did   not    take     the   breath    test    and   faced    a    refusal

hearing.

       ¶79    The accused, who held a Louisiana driver's license,

argued at the refusal hearing that the deputy gave him incorrect
information about the penalties under Louisiana law and that

therefore his refusal was justified.                   The court was unconvinced

by the accused's argument about Louisiana law.                       The court held

that the Informing the Accused Form accurately stated Wisconsin

law and that neither the deputy nor the accused believed that

the deputy was stating Louisiana law.                     Smith, 308 Wis. 2d 65,

¶¶81, 82.

       ¶80    The accused also alleged that the deputy gave him an
additional item of misinformation.                 Because no factual finding
                                           29
                                                                   No.     2015AP450-CR



had   been   made       about     this   allegation,     the    court    assumed     for

purposes of its decision that the deputy misinformed the accused

that he would be entitled to a refusal hearing within 10 days.

Smith, 308 Wis. 2d 65, ¶84.                The correct information was that

the accused could request a refusal hearing within 10 days.

      ¶81    Under the applicable law at that time, in order to

prevail, the accused in the Smith case had the burden to make a

prima facie showing that the deputy's erroneous statement about

the timing of the refusal hearing contributed to his refusal to

submit to the breath test.                 Smith, 308 Wis. 2d 65, ¶86.               The

accused failed to make this essential showing.                    Accordingly, the

court concluded that the accused improperly refused to submit to

the   breath      test    under    the   Implied   Consent      Law.      Smith,     308

Wis. 2d 65, ¶¶87-89.

      ¶82    The Smith court did not address the driver's Fourth

Amendment rights regarding a breath or blood test, the concept

of    voluntary         consent    under    the    Fourth      Amendment,       or   the

exclusionary rule.           These issues were not raised in the Smith
decision.        The Smith case is not pertinent to the instant case.

                                         * * * *

      ¶83    For the reasons set forth, we conclude that the State

did not prove by clear and convincing evidence that Blackman's

consent     to    the    blood    draw   was    valid,   that    is,     that   it   was

voluntarily and freely given under the Fourth Amendment.

      ¶84    Because the exclusionary rule's deterrent effect will

be served by suppressing the evidence of Blackman's blood test,
we decline to apply the good faith exception to the exclusionary
                                           30
                                                             No.    2015AP450-CR



rule.     The   results   of   Blackman's     blood   draw    are    therefore

suppressed.

    ¶85    Accordingly,    the   cause   is    remanded      to    the   circuit

court to reinstate the order suppressing the evidence and for

further proceedings not inconsistent with the decision of this

court.

    By the Court.——The decision of the court of appeals is

reversed and the cause remanded.




                                    31
                                                               No.    2015AP450-CR.akz


       ¶86   ANNETTE KINGSLAND ZIEGLER, J.               (concurring).        I join

the court's opinion with a few exceptions and a few caveats.

Because I am able to join most, but not all, of the court's

opinion, I write to provide further clarity of that opinion.

       ¶87   At the outset, I am compelled to clarify what was and

was not the "misrepresentation" in this case.                        Here, the term

"misrepresentation"        is   being      used    in    the    context      of    law

enforcement reading a required form completely accurately but

the standard form that was read verbatim inaccurately stated the

law.     This court has framed that misstatement of law by using

the phrase "misrepresentation."               To be clear, there are a number

of     occasions   where    law     enforcement         may    appropriately       use

"misrepresentations"       in     the    context    of    an    investigation       or

otherwise.     See, e.g., Lewis v. United States, 385 U.S. 206,

208-09 (1966) ("Indeed, it has long been acknowledged by the

decisions of this Court that, in the detection of many types of

crime, the Government is entitled to use decoys and to conceal

the identity of its agents." (citations omitted)); United States
v. Peters, 153 F.3d 445, 464 (7th Cir. 1998) (Easterbrook, J.,

concurring) ("Police engage in deceit all the time in order to

induce    suspects   to    reveal       evidence. . . . Deception          plays    an

important and legitimate role in law enforcement.").

       ¶88   In the case at issue, the word "misrepresentation" is

used not because law enforcement spoke in an effort to induce

coercion, but rather, is used in the literal sense that the

language on the form read misrepresented what the law actually
was.     Thus, it is not law enforcement action that caused the

                                          1
                                                        No.   2015AP450-CR.akz


misrepresentation,     but   rather       the   inaccuracy    of   the   form,

properly read verbatim, that inaccurately informed the defendant

of the state of the law.      The phrase "misrepresentation" is used

in the opinion but the use of that term should not be confused

with a more typical scenario involving misrepresentations made

by law enforcement.1       The opinion should not be read to suggest

that       any   misrepresentation        by    law    enforcement       would

automatically render a subsequent action to be deemed coerced.

One does not automatically influence the other.

       ¶89   Second, I further write to clarify that the court's

opinion should not be read as inconsistent with my view of the

constitutional theory behind Wisconsin's implied consent law.

See, e.g., State v. Howes, 2017 WI 18, ¶¶52-87, 373 Wis. 2d 468,

893 N.W.2d 812 (Gableman, J., concurring).             The court sensibly

does not opine on this matter in this case and I write to alert

the reader that this decision should not be interpreted as doing

so.

       ¶90   Third, I do not join that part of the opinion which
discusses the inferences that Blackman might have drawn from one

of Deputy Abler's statements in this case.              See majority op.,

¶65.       Specifically,   Deputy    Abler's     reference    to   department

policy to draw blood and what Blackman might have thought that

       1
       When it comes to misrepresentations by law enforcement,
the proposition that misrepresentation is or is not deemed to be
permissible oversimplifies the reality of when or if a
misrepresentation by law enforcement has been approved by the
courts. See, e.g., Lewis v. United States, 385 U.S. 206, 208-09
(1966); United States v. Peters, 153 F.3d 445, 464 (7th Cir.
1998) (Easterbrook, J., concurring).


                                      2
                                                        No.   2015AP450-CR.akz


to mean is a disputed fact between the parties.               Resolution of

the meaning of the statement is not necessary to the disposition

of this case.    If we were to review this, the inquiry would not

be as subjective as the court's discussion might seem.                   Cf.,

e.g., Florida v. Jimeno, 500 U.S. 248, 251 (1991) ("The standard

for measuring the scope of a suspect's consent under the Fourth

Amendment is that of 'objective' reasonableness——what would the

typical    reasonable    person   have     understood   by    the    exchange

between the officer and the suspect?").

    ¶91    Fourth, the good faith exception applies in specific,

narrowly-defined circumstances.           See, e.g., State v. Dearborn,

2010 WI 84, ¶46, 327 Wis. 2d 252, 786 N.W.2d 97 ("[U]nder our

holding today, the exclusionary rule is inappropriate only when

the officer reasonably relies on clear and settled precedent.

Our holding does not affect the vast majority of cases where

neither this court nor the United States Supreme Court have

spoken with specificity in a particular fact situation."); Davis

v. United States, 564 U.S. 229, 238-39 (2011) (listing cases).
In my view, the facts of this case do not constitute one of the

rare occasions where the good faith exception applies.               This is

not a case, for example, where law enforcement followed the law

in existence at the time, where the error will not occur in the

future given the current state of the law, and where future

action is already deterred because of the correction in the law.

Instead,   the   law    enforcement   officer    inaccurately       explained

existing law, and this error might continue to occur in the
future such that the deterrent effect will be served by the

                                      3
                                                                          No.   2015AP450-CR.akz


suppression of evidence.                While deterrent effect is not the sole

consideration,        I      am     able     to       join     the    court's         discussion

understanding         that        although       "[r]eal       deterrent         value        is    a

'necessary       condition            for    exclusion,' . . . it                is     not         'a

sufficient'      one.           The    analysis        must     also      account       for        the

'substantial social costs' generated by the rule."                                 Id. at 237

(citation omitted) (quoting Hudson v. Michigan, 547 U.S. 586,

596   (2006)).            The      result        reached       in     this      case     is        not

inconsistent with this approach.

      ¶92    Fifth,       while        I    agree       with        the   court        that        the

information given to Blackman in the instant case was inaccurate

under the law, I do not necessarily join the court's inference

that certain advice should be given to Blackman under Wis. Stat.

§ 343.305(3)(ar)2.           We need not go that far.

      ¶93    For the foregoing reasons, I respectfully concur.

      ¶94    I   am    authorized           to    state      that     Justice     MICHAEL          J.

GABLEMAN joins this opinion.




                                                  4
                                                                        No.     2015AP450-CR.pdr


      ¶95    PATIENCE       DRAKE            ROGGENSACK,              C.J.      (dissenting).

Wisconsin's legislature repeatedly has enacted laws to lessen

the     carnage    that    drunk       drivers       inflict          on     those     who   use

Wisconsin      roads.           Today,       the     majority          opinion       overturns

legislation that holds those who drive with a prohibited alcohol

concentration       responsible          for       the    injuries           they    cause    by

violating a traffic law when their intoxication is not readily

apparent.

      ¶96    The majority opinion errs for three reasons:                              Adam M.

Blackman's     consent     to     blood       tests       was    not       obtained     by   law

enforcement       coercion;      the     majority         opinion       misinterprets        the

relevant statutes; and Deputy Sheriff Abler acted with a good

faith    belief     that   he    was     doing       what       the    statutes      required.

Stated more fully:         (1) Deputy Abler's reading the Informing the

Accused form to Adam Blackman was not sufficient to overcome

Blackman's free will such that the reaffirmation of his consent

to evidentiary tests was coerced rather than voluntary; (2) the

controlling statutes, correctly interpreted, comport with the
deputy's reading the Informing the Accused form to Blackman; and

(3)   Deputy      Abler,   in    good    faith,          read    what      he   believed     the

statutes required.          Accordingly, I would affirm the court of

appeals, and I respectfully dissent from the majority opinion.

                                        I.     BACKGROUND

      ¶97    The    majority      opinion          ably    sets       forth     most    of   the

factual background of this controversy, so I shall relate only

those facts necessary to attuning the reader to my discussion
that follows.

                                               1
                                                              No.   2015AP450-CR.pdr


       ¶98      At approximately 10:00 in the morning while driving

his automobile, Blackman made a left-hand turn from a county

highway onto an intersecting street.                In so doing, he crossed

the path of an oncoming bicyclist, who collided with the right

side       of   Blackman's    car   causing    great    bodily      harm     to     the

bicyclist.

       ¶99      While medical personnel were attending to the injured

bicyclist, Deputy Sheriff Abler spoke with Blackman, who had

remained at the scene of the accident.               Abler testified that he

believed that Blackman violated a traffic law by not yielding

the right-of-way to the bicyclist when he made his left-hand

turn.

       ¶100 Because of the great bodily harm that the bicyclist

suffered,       Abler   asked    Blackman     to   provide    a     blood    sample.

Blackman agreed and was taken to a local hospital for the blood

draw.       At the hospital, Abler read Blackman the Informing the

Accused form.        Wisconsin Stat. § 343.305(4) directs that it be

read before a chemical evidentiary test is undertaken based on a
driver's alleged traffic violation that causes great bodily harm

to     another      person,      i.e.,    a    violation      of      Wis.        Stat.

§ 343.305(3)(ar)2.

       ¶101 The      Informing      the   Accused      form    describes          civil

penalties that may follow from refusing to permit a chemical

test.       The following questions were asked of the deputy about

his interactions with Blackman and Blackman's consent to the

evidentiary test in response to the Informing the Accused form.

       Q        Do you recall, did Mr. Blackman consent to an
                evidentiary chemical test of his blood?
                                      2
                                               No.   2015AP450-CR.pdr

    A    Yes, he did.

    Q    Okay.    At that time do you recall, did          Mr.
         Blackman have any questions for you about         the
         nature of that form?

    A    No, I don't recall any questions.

    Q    Okay.    At the time that was       read,   was   Mr.
         Blackman confined in any way?

    A    No, other than the fact that we were just sitting
         in a room at the hospital.

    Q    Okay.   Is there anything else that you can tell
         me that would give us some information as to
         whether or not Mr. Blackman was forced or coerced
         or threatened in any way to consent to an
         evidentiary chemical test of his blood?

    A    No, he was not. In fact, he was very cooperative
         throughout the whole procedure.

    . . . .

         THE COURT:   Did you tell him why you were going
    to the hospital and why he should ride in your car?

         THE WITNESS:  Well I'm sure I told him that.    I
    know I explained our normal procedure is when there is
    a serious accident like this that we do take blood
    samples.

         THE COURT: Okay. So he knew he was going to the
    hospital for a blood sample?

         THE WITNESS:   Yes, he did.

         THE COURT:   Did he say anything to you about
    agreeing to have a blood sample and when you got in
    the car and before you guys took off to go to the
    hospital?

         THE WITNESS:   I don't know that he specifically
    agreed, but he did not disagree or refuse or give me
    any indication that he was going to refuse.
    ¶102 Blackman, who was 20 years of age on the date he was
requested to give a blood sample, reaffirmed his consent and his

                                3
                                                                No.     2015AP450-CR.pdr


blood was drawn.1       The tests showed he had a .104 blood alcohol

concentration.       He was charged with several crimes that related

to his unlawful blood alcohol concentration and the great bodily

harm the bicyclist suffered.

    ¶103 Blackman moved to suppress the results of his blood

test, claiming that his consent was not valid because the deputy

misinformed    him    that   he    faced       the   civil   penalty       of    license

revocation if he refused, when he actually faced only an arrest

for refusing the blood draw.             He also argued that if the implied

consent law applied to him, and if his consent was valid, Wis.

Stat. § 343.305(3)(ar)2. was unconstitutional, both facially and

as applied to him.

    ¶104 The      circuit        court    concluded      that      Abler        did     not

misinform    Blackman      "because      the   potential     for      revocation        was

ultimately     available     through       section     (3)(a)      if    the     refusal

continued."      However,        the     circuit     court   granted       Blackman's

motion to suppress because it concluded Blackman's consent was

coerced when he was told that if he refused to permit a blood
draw his operating privileges would be revoked.                     The court based

this "coercion" on its conclusion that revocation for refusal

under   Wis.    Stat.      § 343.305(3)(ar)2.          would       be    "statutorily

unenforceable."            The    court        concluded     that        Wis.         Stat.

§ 343.305(9)(a)5.a. required the State to prove that Abler had

probable     cause    to     arrest       Blackman     for     a      driving         while

    1
       The record reflects that Adam Blackman was born November
23, 1992 and his blood sample was drawn on June 22, 2013, the
date of the offenses.


                                           4
                                                                          No.    2015AP450-CR.pdr


intoxicated offense when the deputy had no facts to support

probable cause at the time the blood sample was taken.

      ¶105 The     court       of    appeals         reversed.          It      concluded      that

Blackman was correctly informed that if he withdrew the consent

he   first    provided        by    driving       on      the    Wisconsin       roadways       and

refused to submit to the requested blood draw, his operating

privileges would have been revoked.                             State v. Blackman, 2016

WI App 69, ¶1, 371 Wis. 2d 635, 886 N.W.2d 94.

      ¶106 The      majority         opinion         disagrees      with        the    court     of

appeals and suppresses the results of Blackman's blood test.

                                          II.    DISCUSSION

                                    A.    Standard of Review

      ¶107 Whether        Blackman's            reaffirmation        of      his      consent    to

search was voluntarily given, in contrast to being obtained by

law enforcement coercion, is a question of constitutional fact.

State   v.    Phillips,       218     Wis.      2d     180,     195-96,      577      N.W.2d    794

(1998).      We apply a two-step process to make this determination.

Id. at 191.        Historical facts relevant to consent are affirmed
unless clearly erroneous.                  Id. at 190.             Voluntary consent is

consent "given in the absence of duress or coercion, either

express      or   implied."              Id.    at     197      (citing        Schneckloth       v.

Bustamonte,       412     U.S.       218,        248-49         (1973)).           Accordingly,

voluntariness       is    a        question      of       law    that     we     decide     after

considering       the    totality        of     the    circumstances.              Id.    at    198

(citing      Schneckloth,          412    U.S.       at    226)).         The      totality      of

circumstances include "both the circumstances surrounding the
consent and the characteristics of the defendant."                                 Id. (citing

                                                 5
                                                                   No.    2015AP450-CR.pdr


State v. Xiong, 178 Wis. 2d 525, 534-36, 504 N.W.2d 428 (Ct.

App. 1993)).

      ¶108 This case also involves statutory interpretation and

application.     These are questions of law that we independently

determine.     State v. Hanson, 2012 WI 4, ¶14, 338 Wis. 2d 243,

808 N.W.2d 390.

      ¶109 And   finally,    whether          Deputy   Sheriff       Abler     read   the

Informing the Accused form to Blackman in good faith such that

the   exclusionary   rule        is    inapplicable           to    the     results    of

Blackman's blood tests is also a question of law.                              State v.

Dearborn, 2010 WI 84, ¶33, 327 Wis. 2d 252, 786 N.W.2d 97.

                          B.      Coercive or Voluntary

      ¶110 The majority opinion concludes that Blackman's consent

given in response to Abler's request for blood tests was not

voluntarily given because it was coerced by Abler's reading the

Informing the Accused form to Blackman.                   The form relates that

refusal   will   result     in    revocation,          when    Blackman's        driving

privileges would not have been revoked if he had refused to
provide an evidentiary sample.2               In so concluding, the majority

opinion totally ignores the legal principles that come into play

when a court assesses whether a defendant's free will has been

overcome by law enforcement conduct for purposes of the Fourth

Amendment.

                             1.       General principles

      2
       "He was incorrectly informed that his operating privilege
would be revoked if he refused the request for a blood draw."
Majority op., ¶61.


                                          6
                                                                   No.       2015AP450-CR.pdr


       ¶111 When the State asserts that a search was consensual,

we    must     determine       whether      consent       was     voluntarily        given.

Phillips, 218 Wis. 2d 180, ¶23.                  The test for voluntariness of a

search is "whether consent to search was given in the 'absence

of    actual      coercive,     improper         police    practices          designed     to

overcome the resistance of a defendant.'"                       Xiong, 178 Wis. 2d at

532 (quoting State v. Clappes, 136 Wis. 2d 222, 245, 401 N.W.2d

759, 769 (1987)).            Mere acquiescence to police authority, such

as when police display a search warrant to a defendant and he

permits      entry    into   his    home,     is    not    coerced      consent      in   the

context      that    Blackman      contends       occurred      herein.         Rather,    we

consider a search done without a warrant that was based on law

enforcement's request to search and Blackman's response to that

request.      Schneckloth, 412 U.S. at 234.

       ¶112 Whether a defendant's will was overborne such that his

consent to search was not voluntary requires us to examine the

details      of    the   interactions       between       law   enforcement         and   the

defendant and the characteristics of the defendant.                            Id. at 226.
There is no one factor that will determine whether consent was

coerced.       As the United States Supreme Court has explained, "The

problem      of    reconciling      the    recognized        legitimacy        of   consent

searches with the requirement that they be free from any aspect

of    official       coercion    cannot      be     resolved      by    any     infallible

touchstone."         Id. at 229.

       ¶113 In regard to the interaction between law enforcement

and    the        defendant,       we     examine     whether          law     enforcement
"threatened, physically intimidated, or punished the defendant,"

                                             7
                                                                     No.    2015AP450-CR.pdr


Phillips, 218 Wis. 2d at 199; whether the interactions between

law    enforcement      and     the    defendant       were       under         cooperative,

nonthreatening conditions, id. at 200; whether the consent was

the result of custodial interrogation, which the Supreme Court

concluded was "inherently coercive" in Miranda v. Arizona, 384

U.S. 436 (1966).        Schneckloth, 412 U.S. at 240.

       ¶114 Some      factors    relating        to   the     defendant          are:     his

youth, Haley v. Ohio, 332 U.S. 596, 599 (1948); education or

lack thereof, Payne v. Arkansas, 356 U.S. 560, 562 (1958); low

intelligence or mentally compromised, see Fikes v. Alabama, 352

U.S. 191, 196 (1957); questioning that occurred while defendant

was in custody, State v. Michels, 141 Wis. 2d 81, 92, 414 N.W.2d

311 (Ct. App. 1987).

       ¶115 In a consent-search, it is the State's burden to show

voluntariness; however, the State does not have the burden to

show    that    the    defendant's       consent       was     "informed          consent."

Phillips, 218 Wis. 2d at 203 (citing Xiong, 178 Wis. 2d at 532).

Stated otherwise, the State has no obligation to prove that the
defendant consented to the search knowingly and intelligently,

or    that   the    defendant     knew      he    could      refuse        to    permit    the

requested search.         State v. Rodgers, 119 Wis. 2d 102, 109-10,

349 N.W.2d 453 (1984) (citing Schneckloth, 412 U.S. at 229-32).

       ¶116 Furthermore,         the        obligation        to      prove        that      a

defendant's waiver of a trial right is knowing and intelligent

is     vastly      different     from       the       test     for         assessing       the

constitutional sufficiency of consent to search.                                Illinois v.
Rodriguez,      497   U.S.    177,    183    (1990).         As    the      United      States

                                             8
                                                                   No.    2015AP450-CR.pdr


Supreme Court has explained, "what is generally demanded of the

many   factual       determinations      that       must      regularly     be   made   by

agents   of    the     government——whether              the    magistrate     issuing    a

warrant, . . . or        the    police    officer         conducting      a   search    or

seizure under one of the exceptions to the warrant requirement——

is not that they always be correct, but that they always be

reasonable."     Id. at 185.

                                 2. Blackman's consent

       ¶117 There      is    nothing     in       the    record    that    shows    Abler

coerced Blackman.           No threats were made to obtain his consent to

the blood draw.         He was not punished by denying food, drink or

rest periods.        No coercive, improper police conduct designed to

overcome Blackman's free will occurred.                       All that happened prior

to the blood draw was Abler's reading the Informing the Accused

form to Blackman.

       ¶118 In regard to Blackman, he was 20 years of age when the

accident occurred.           There is nothing in the record that would

indicate he did not have the capacity to freely consent, or
withdraw consent, for the blood draw.                     He willingly went to the

hospital and permitted blood to be drawn for testing.                              Deputy

Abler said that "he was very cooperative throughout the whole

procedure."

       ¶119 As I will explain below, I have concluded that the

deputy properly read the Informing the Accused form, which Wis.

Stat. § 343.305(4) requires.             However, even if I were to assume

that   the    form    should    not    have       been    read    because     Blackman's
driving privileges could not have been revoked if he refused to

                                              9
                                                                  No.   2015AP450-CR.pdr


permit the       blood test, law enforcement had no obligation to

provide additional information to Blackman.                        Constitutionally

sufficient   consent       may    be    obtained     when   the     consent      is   not

knowingly and intelligently given.                   Schneckloth, 412 U.S. at

229-32; Rodgers, 119 Wis. 2d at 109-10; Xiong, 178 Wis. 2d at

532.    Reading the form simply gave Blackman a choice:                         he could

say yes or he could say no.

       ¶120 Furthermore, if reading the Informing the Accused form

to Blackman coerced his consent to a blood draw, reading the

Informing the Accused form coerces every driver to whom it is

read.    All have the same choice:              say yes or say no.           Requiring

that accurate consequences of refusing to permit a blood draw

are known to the defendant before his consent is held to be

voluntary    is        contrary    to     Schneckloth,      Rogers        and     Xiong.

Knowledge of the consequences of refusal is outside the scope of

Fourth Amendment consent to search protections.

       ¶121 A common example shows the fallacy of the majority

opinion's conclusion that Blackman's consent was coerced.                          Let's
assume that a driver belongs to a religious sect that prohibits

blood-letting.          He refuses to give a blood sample after the

Informing the Accused form is read to him.                  The form is the same

for all to whom it is read; yet, if a driver refuses to provide

a blood sample based on a sincerely held religious belief, it is

likely that his license will not be revoked.                       See Schmerber v.

California, 384 U.S. 757, 771 (1966).                 Therefore, the form will

not    provide    an    accurate       description    of    the    consequences       of



                                           10
                                                                 No.    2015AP450-CR.pdr


refusing   to      provide     the      requested     blood    sample    for     such   a

driver.

      ¶122 No coercion forced Blackman to provide a blood sample.

Coercion requires unlawful police conduct designed to override

the free will of a defendant.                There is nothing in this record

to suggest unlawful police conduct; and there is nothing in this

record to suggest that this 20-year-old man did not freely and

voluntarily consent to the blood test.

                             C.    Statutory Interpretation

      ¶123 Proper interpretations of Wis. Stat. § 343.305 and its

subsections show that the deputy correctly followed directives

established      by    the    legislature,        which      included    reading      the

Informing the Accused form, § 343.305(4), and upon refusal, a

refusal hearing would have followed, § 343.305(9)(c).

                                   1.   General principles

      ¶124 Statutory interpretation begins with the language of

the   statute.        If     the    meanings     of    the    words    chosen    by   the

legislature are plain, ordinarily we stop the inquiry.                          State ex
rel Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110.               "Plain meaning may be ascertained

not only from the words employed in the statute, but also from

the context."         Prince Corp. v. Vandenberg, 2016 WI 49, ¶17, 369

Wis. 2d 387, 882 N.W.2d 371.

      ¶125 Interpreting a statute in context requires that we do

not interpret statutory language in isolation, but rather in

relation      to       surrounding         and        closely-related        statutory
provisions.        Id.       Here, I interpret the subsections of Wis.

                                           11
                                                            No.   2015AP450-CR.pdr


Stat. § 343.305 as they relate to each other within Wisconsin's

statutory scheme of implied consent.3

                              2.   Relevant Statutes

     ¶126 Wisconsin        Stat.   §§ 343.305(3)(ar)2.,        343.305(4),      and

343.305(9)    are   implicated      by    Blackman's      arguments    that     the

majority opinion finds persuasive.4                 Accordingly, I interpret

those provisions in the context of Wisconsin's implied consent

law, as they relate to each other.

     ¶127 A vehicle operator whom a law enforcement officer has

reason to believe committed a violation of a traffic law that

caused    great   bodily    harm   to    another    may   be   charged    with   a

violation of Wis. Stat. § 343.305(3)(ar)2.                An alleged violation

of   § 343.305(3)(ar)2.       permits     a   law    enforcement      officer    to

request the vehicle operator to provide one or more samples of

breath, blood or urine.        § 343.305(3)(ar)2.         There is no dispute

that that interpretation is what the statute plainly provides.

     ¶128 In regard to a request for samples to test for alcohol

concentration, Wis. Stat. § 343.305(4) states in relevant part:

     At the time that a chemical test specimen is requested
     under sub. (3)(a), (am), or (ar), the law enforcement
     officer shall read the following to the person from
     whom the test specimen is requested:



     3
       I note that the "purpose behind the implied consent law is
to combat drunk driving 'by facilit[ating] the gathering of
evidence against drunk drivers.'"     State v. Piddington, 2001
WI 24, ¶17, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting State v.
Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828 (1980)).
     4
         Majority op., ¶¶30, 44.


                                         12
                                                  No.   2015AP450-CR.pdr

         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 . . . .
    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 Informing the Accused form, which is read before samples for

chemical testing are secured, repeats the statutory admonitions

of § 343.305(4).    The plain wording of subsec. (4) requires the

officer to read the statutory provisions.       There is no dispute

that the statutory provisions are contained within the Informing

the Accused form.

    ¶129 Where I part company with the majority opinion is in

its interpretation of Wis. Stat. § 343.305(9).      It is not until

there is a refusal and a timely request for a refusal hearing

that § 343.305(9)    comes into play.    Neither of these events

occurred in the pending matter.      However, given the arguments

made to us and the majority opinion's interpretation of the

various provisions of subsec. (9), I, too, address § 343.305(9).

    ¶130 I begin with Wis. Stat. § 343.305(9)(c) because it is

the paragraph in subsec. (9) that addresses refusal by a person

from whom submission of a sample for testing was requested under

subd. (3)(ar)2.    Paragraph (9)(c) provides:

    If a law enforcement officer informs the circuit or
    municipal court that a person has refused to submit to
    a test under sub (3)(a), (am), or (ar), the court
    shall be prepared to hold any requested hearing to
    determine if the refusal was proper. The scope of the
    hearing shall be limited to the issues outlined in
    par. (a)5. or (am)5.    Section 967.055 applies to any
    hearing under this subsection.
                               13
                                                                 No.   2015AP450-CR.pdr


      ¶131 When a vehicle operator who is not a commercial motor

vehicle   operator    refuses       a    request     to   submit       a    sample    for

testing     based    on     a     suspected        violation      of        Wis.   Stat.

§ 343.305(3)(ar)2., any requested hearing cannot encompass more

issues than those identified in subd. (9)(a)5.                         However, there

is   nothing   in   para.       (9)(c)   that      requires     all     three      issues

identified in subd. (9)(a)5. to be tried.                       Rather, the issues

that must be tried are whether the officer complied with sub.

(4), subd. para. (9)(a)5.b., and whether the person's refusal

was due to a physical inability to submit to the requested test

because   of   a    cause       unrelated     to   the    use    of     a    prohibited

substance, subd. para. (9)(a)5.c.

      ¶132 Wisconsin Stat. § 343.305(9)(c) states that the "scope

of the hearing shall be limited to the issues outlined in par.

(a)5."    It does not say that the issues outlined in para. (a)5.

shall be tried.

      ¶133 When issues to be considered in a claim or a type of

review are "limited," no unlisted issues can be considered, but
every enumerated issue identified in the list does not have to

be tried.      For example, in certiorari review the issues are

limited to:

      (1) whether the board kept within its jurisdiction;
      (2) whether it proceeded on a correct theory of law;
      (3) whether its action was arbitrary, oppressive, or
      unreasonable and represented its will and not its
      judgment; and (4) whether the board might reasonably
      make the order or determination in question based on
      the evidence.
FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶8, 301 Wis. 2d 321,
733 N.W.2d 287.           However, there is no need to try all four
                                         14
                                                                 No.    2015AP450-CR.pdr


issues in order to prevail; simply proving that the board did

not proceed on a correct theory of law is sufficient.                         Id.

      ¶134 Furthermore,             even          though              Wis.          Stat.

§ 343.305(9)(a)5.a. permits consideration of whether the officer

had probable cause to believe the person was operating a motor

vehicle    with   a    prohibited    alcohol        concentration,           nothing     in

para. (9)(c) requires that issue be tried.                     A plain reading of

subd. (9)(a)5. in the context of Wis. Stat. § 343.305(3)(ar)2.

demonstrates that requiring the State to litigate whether the

officer had probable cause to believe the driver was impaired or

had   a   prohibited     alcohol     concentration        would        make    no   sense

because    § 343.305(3)(ar)2.        is     based    on    the       violation      of    a

traffic law that causes death or great bodily injury, not on

apparent intoxication.

                  3.    Application of statutes to Blackman

      ¶135 Deputy Abler had reason to believe that Adam Blackman

violated a traffic law by failing to yield the right-of-way to

oncoming traffic, which caused great bodily harm to another.
Accordingly, Blackman was alleged to have violated Wis. Stat.

§ 343.305(3)(ar)2.        There     is     no   question       that     the    bicyclist

suffered great bodily harm and no question that it was pursuant

to § 343.305(3)(ar)2. that Abler requested that Blackman submit

to a blood test.         It is also beyond dispute that the deputy

complied with Wis. Stat. § 343.305(4) by reading Blackman the

Informing the Accused form.

      ¶136 Even though statutory interpretation arising from a
refusal    is   not   present   in    this      case,     if    it     were,    I   would

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conclude that Wis. Stat. § 343.305(9)(c) does not require that

the issue of whether the deputy had probable cause to believe

Blackman      was    impaired          must    be     tried     because         Blackman    was

proceeded     against         pursuant        to    Wis.     Stat.       § 343.305(3)(ar)2.

There is nothing in the record to show that if Blackman had

refused, such refusal would be excused because of an inability

to submit to blood tests.                     Accordingly, if he were to have

refused, his driving privileges would have been revoked.

      ¶137 The legislature made a policy choice to test whether a

vehicle's     operator         was     under       the    influence       of     intoxicating

substances when accidents cause death or great bodily harm.                                   It

did so because intoxication is not always readily apparent at

the   scene    of    a       serious    accident,        but    can      nevertheless       have

contributed to loss of life and serious injuries.                                 That policy

choice is Wis. Stat. § 343.305(3)(ar)2.

      ¶138 Blackman's           blood        test    showed     a     prohibited        alcohol

concentration of .104, well above the legal limit of .08 for an

adult, and absolutely prohibited for a man who was underage to
drink any alcohol on the date of the accident.

                                         D.        Good Faith

      ¶139 Even if I were to assume that Blackman's consent was

coerced and were to agree with the majority opinion's statutory

interpretation,          I    nevertheless          would    conclude          that   the   good

faith exception to the exclusionary rule applies; and therefore,

I would not suppress the results of the blood test.

      ¶140 At       the      outset,     I    note       that   the      majority       opinion
incorrectly     frames         the     exclusionary         rule    as    a    remedy    courts

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apply liberally.           Without citation, the majority opinion states:

"Ordinarily,        evidence       obtained    through      an    unlawful    search    is

excluded at trial."5             This is contrary to well-established law

when       innocent    police      conduct     is    the    foundation       from   which

objection to a search arises.

       ¶141 The        Supreme        Court         has    concluded         that     "the

[exclusionary] rule's 'costly toll' upon truth-seeking and law

enforcement objectives presents a high obstacle for those urging

application of the rule."                  Pennsylvania Bd. of Probation v.

Scott, 524 U.S. 357, 364-65 (1998) (quoting United States v.

Payner,      447    U.S.    727,    734    (1980)).        The     Supreme    Court    has

repeatedly stated that "[s]uppression of evidence" should be the

"last resort, not our first impulse."                      Hudson v. Michigan, 547

U.S. 586, 591 (2006); see also Utah v. Strieff, 136 S. Ct. 2056,

2061 (2016); Herring v. United States, 555 U.S. 135, 140 (2009).

We     have     used       similar        admonitions       when      describing       the

exclusionary rule.           Dearborn, 327 Wis. 2d 252, ¶35 (reasoning,

"exclusion [of evidence] is the last resort").
       ¶142 "The       rule's      sole    purpose . . . is          to   deter     future

Fourth Amendment violations."                 Davis v. United States, 564 U.S.

229,       236–37     (2011).         "Where       suppression       fails    to    yield

'appreciable                    deterrence,'                     exclusion              is

'clearly . . . unwarranted.'"                Id. at 237 (quoting United States

v. Janis, 428 U.S. 433, 454 (1976)).                      "Police practices trigger

the harsh sanction of exclusion only when they are deliberate


       5
           Majority op., ¶68.


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enough to yield '[meaningfu[l]' deterrence, and culpable enough

to be 'worth the price paid by the justice system.'"                                Davis, 564

U.S. at 240 (quoting Herring, 555 U.S. at 141).

       ¶143 Moreover,       "marginal          deterrence          is     not       enough     to

justify exclusion; 'the benefits of deterrence must outweigh the

costs.'"     Dearborn, 327 Wis. 2d 252, ¶35 (quoting Herring, 555

U.S. at 129).        "The principal cost of applying the rule is, of

course,    letting       guilty    and       possibly       dangerous         defendants       go

free—something      that       'offends       basic       concepts      of      the    criminal

justice system.'"           Herring, 555 U.S. at 141 (quoting                              United

States v. Leon, 468 U.S. 897, 908 (1984)).                         Given the high cost

to society of excluding probative evidence against a defendant

in a criminal trial, suppression of the evidence is "the last

resort"    and    the     burden       is    on     the     defendant         to    show     that

exclusion is warranted.            Scott, 524 U.S. at 364-65.

       ¶144 Good     faith        is     a    well-defined          exception           to    the

exclusionary rule.          See Dearborn, 327 Wis. 2d 252, ¶37.                              "The

exclusionary rule does not serve its purpose when police act
with   a   reasonable,      good       faith       belief    that       their       conduct    is

lawful."    State v. Oberst, 2014 WI App 58, ¶9, 354 Wis. 2d 278,

847    N.W.2d    892;    see     also       Leon,    468    U.S.     at       919     ("We   have

frequently questioned whether the exclusionary rule can have any

deterrent       effect    when     the       offending       officers         acted     in    the

objectively reasonable belief that their conduct did not violate

the Fourth Amendment.").               The "good-faith inquiry is confined to

the    objectively       ascertainable            question     whether          a    reasonably
well-trained      officer       would        have    known     that       the       search    was

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illegal in light of all of the circumstances."                                  Herring, 555

U.S. at 145 (internal quotations omitted).

      ¶145 The           good     faith     exception         applies    when     an     officer

relies     on       a    statute     that    is       later    found    unconstitutional.6

Illinois       v.       Krull,    480     U.S.   340,    349-50      (1987).          "Unless    a

statute        is       clearly    unconstitutional,            an     officer        cannot    be

expected to question the judgment of the legislature that passed

the       law.            If      the      statute       is     subsequently            declared

unconstitutional,               excluding    evidence         obtained     pursuant       to    it

prior     to     such      a    judicial     declaration        will    not     deter     future

Fourth      Amendment           violations       by     an    officer     who     has     simply

fulfilled his responsibility to enforce the statute as written."

Id.

      ¶146 In the present case, there is no deterrent value in

suppressing the results of Blackman's blood test.                                Deputy Abler

was required to read the Informing the Accused form to Blackman.

Specifically,            Wis.     Stat.    § 343.305(4)        provides        that    "the    law

enforcement officer shall read the following to the person from
whom the test specimen is requested."                          Excluding the results of

Blackman's blood test "will not deter future Fourth Amendment


      6
       The good faith exception is not cabined to the factual
circumstances in which it has previously been applied by the
United States Supreme Court.    See People v. LeFlore, 32 N.E.3d
1043, 1050 (Ill. 2015) ("Clearly, application of the good-faith
inquiry is not limited to the specific circumstances addressed
by the Supreme Court in Davis [v. United States, 564 U.S. 229
(2011)] or any other Supreme Court case."); United States v.
Stephens, 764 F.3d 327, 337 (4th Cir. 2014) (declining to limit
"the   good-faith   inquiry   only   to   the   precise  factual
circumstances addressed by the Supreme Court").


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violations"       because     the    "officer . . . simply           fulfilled     his

responsibility to enforce the statute as written."                       Krull, 480

U.S. at 349-50.

     ¶147 The deputy did not act with "deliberate, reckless, or

grossly negligent conduct" and therefore, this case is not one

in   which      suppression      would   yield    "appreciable         deterrence."

Weighed against the high societal cost of exclusion, suppression

of the blood test is not warranted in the present case.                           After

all, suppression is the "last resort."                      The deputy did that

which he was statutorily obligated to do; nothing more, nothing

less.

     ¶148 The        majority    opinion     concludes      that     suppression    is

necessary to deter officers from continuing to read individuals

"in the same situation as Blackman" the Informing the Accused

form.7      However,      this   argument     fails   for    an    obvious    reason:

After the majority opinion in the present case concludes that it

is impermissible for an officer to rely solely on reading the

Informing the Accused form to obtain consent when a defendant is
alleged    to    have     violated    Wis.    Stat.    § 343.305(3)(ar)2.,          an

officer that does so will be unable to rely on the good faith

doctrine.       Cf. Leon, 468 U.S. at 924 ("Nor are we persuaded that

application      of   a   good-faith     exception     to    searches      conducted

pursuant        to     warrants      will      preclude       review         of    the

constitutionality of the search or seizure, deny needed guidance

from the courts, or freeze Fourth Amendment law in its present

state.").
     7
         Majority op., ¶73.

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       ¶149 Additionally,                 the   United     States         Supreme      Court   has

"'never    applied'        the       exclusionary         rule       to    suppress     evidence

obtained as a result of nonculpable, innocent police conduct."

Davis,    564    U.S.           at    240.          In    this       case,       the    purported

"misconduct" was the incorrect information provided to Blackman.

Ironically, the author of the majority opinion has previously

permitted       officers             to     misinform          an     individual         of    the

consequences         of    refusal         specific       to    that       individual.         See

Washburn Cty v. Smith, 2008 WI 23, ¶80, 308 Wis. 2d                                      65, 746

N.W.2d 243.          In Smith, an officer read an individual with a

Louisiana driver's license the Informing the Accused form.                                     Id.,

¶53.     The Court recognized that the penalties in the form did

not apply to the individual.                        Id., ¶54.         Yet, the Court held

that the misinformation provided to the defendant was irrelevant

so long as the officer correctly read the Informing the Accused

form.     Id., ¶81.         Here, the officer also read the Informing the

Accused form correctly even if the penalties in the implied

consent laws were not accurate with respect to the defendant.
       ¶150 In sum, the deputy acted in good faith and his actions

were confirmed by the court of appeals.                             Accordingly, I conclude

that    even    if    I    were       to    assume       that    Blackman's         consent    was

coerced and were to agree with the majority opinion's statutory

interpretation,           the    good       faith     exception       to    the     exclusionary

rule    would    apply,         and       the   results        of    the    blood      tests   are

admissible.




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                               III.    CONCLUSION

      ¶151 I    conclude   that:      (1)    Deputy   Abler's    reading    the

Informing the Accused form to Adam Blackman was not sufficient

to overcome Blackman's free will such that the reaffirmation of

his   consent    to   evidentiary     tests    was    coerced    rather    than

voluntary; (2) the controlling statutes, correctly interpreted,

comport with the deputy's reading the Informing the Accused form

to Blackman; and (3) Deputy Abler, in good faith, read what he

believed the statutes required.            Accordingly, I would affirm the

court of appeals, and I respectfully dissent from the majority

opinion.




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