                                                             2018 WI 85

                  SUPREME COURT               OF   WISCONSIN
CASE NO.:              2016AP2483-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Patrick H. Dalton,
                                 Defendant-Appellant-Petitioner.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 377 Wis. 2d 730, 902 N.W.2d 810
                                       (2017 – unpublished)

OPINION FILED:         July 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 12, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Washington
   JUDGE:              Todd K. Martens

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


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Hannah Schieber Jurss, assistant
state public defender.


       For the plaintiff-respondent, there was a brief filed and
an   oral       argument    by   David   H.   Perlman,   assistant   attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
                                                                      2018 WI 85
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.       2016AP2483-CR
(L.C. No.    2014CM117)

STATE OF WISCONSIN                          :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                FILED
      v.                                                       JUL 3, 2018
Patrick H. Dalton,                                               Sheila T. Reiff
                                                              Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




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

cause remanded.



      ¶1      ANN   WALSH   BRADLEY,   J.   The       petitioner,         Patrick

Dalton, seeks review of an unpublished court of appeals decision
affirming his judgment of conviction and sentence and upholding

the circuit court's order denying his postconviction motion.1

Dalton asserts that he is entitled to withdraw his no contest

pleas because his trial counsel was ineffective for failing to


      1
       State v. Dalton, No. 2016AP2483-CR, unpublished slip op.
(Wis. Ct. App. July 19, 2017) (affirming the judgment and order
of the circuit court for Washington County, Todd K. Martens,
Judge).
                                                                           No.     2016AP2483-CR



move to suppress blood evidence collected without a warrant.                                   In

the alternative, he argues that he is entitled to resentencing

because   the        circuit    court    relied      on    an     improper         sentencing

factor.

    ¶2        Specifically,       Dalton        contends        first        that        because

police lacked the exigent circumstances necessary to draw his

blood without a warrant, his counsel was ineffective for failing

to move to suppress the evidence.                     He asserts next that the

circuit       court     impermissibly       lengthened               his     sentence          for

exercising      his    constitutional       right         to    refuse       a    warrantless

blood draw.

    ¶3        We     conclude     that     exigent          circumstances               existed,

permitting      police     to    draw    Dalton's         blood      absent        a   warrant.

Accordingly, his counsel was not ineffective for failing to file

a meritless motion to suppress.

    ¶4        We further conclude that the circuit court violated

Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-

86 (2016),2 by explicitly subjecting Dalton to a more severe
criminal penalty because he refused to provide a blood sample

absent    a     warrant.          Consequently,           Dalton       is        entitled      to

resentencing.

    ¶5        Accordingly,       although       we    agree       with       the       court   of

appeals       that     Dalton's     counsel          was       not     ineffective,             we

    2
       As relevant here, the Supreme Court in Birchfield
determined that it is impermissible to impose criminal penalties
for refusing to submit to a warrantless blood draw. Birchfield
v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-86 (2016).


                                            2
                                                                   No.    2016AP2483-CR



nevertheless       reverse    and     remand     to   the    circuit       court     for

resentencing.

                                         I

    ¶6      This    case     arises    from     a   single    car     crash     in   the

Village of Richfield in which Patrick Dalton (Dalton) was the

driver.     After     driving       erratically       and    at    speeds      reaching

approximately one hundred miles per hour, Dalton crashed his car

into a ditch.       Both Dalton and his passenger were injured.

    ¶7      Washington County sheriff's deputies responded to the

scene of the crash at 10:07 p.m. on December 12, 2013.                               Upon

arrival, the passenger in the car informed deputies that Dalton

had been drinking and that Dalton was the driver of the car.

When law enforcement arrived, Dalton was lying on the roof of

the car, unconscious, and smelled of alcohol.                      Dalton was taken

about a mile from the crash scene by ambulance, where he awaited

the arrival of a Flight for Life helicopter.

    ¶8      After     Dalton     was     driven       away    from       the     scene,

Washington County Deputy Dirk Stolz remained and took the lead
in investigating the scene.              Deputy Stolz was accompanied by

Deputies    Charles     Vanderheiden,          Chad    Polinske,         and    Michael

Anderson.    They were later joined by Lieutenant Robert Martin.

Ten to 15 members of the Richfield Fire Department were also

present, working to keep the area safe and blocking traffic to

ensure officer safety.

    ¶9      While    Deputy    Polinske        interviewed        witnesses,     Deputy

Vanderheiden left the crash scene to await the helicopter with
Dalton, who remained in the ambulance and unconscious.                          Deputy
                                         3
                                                                   No.    2016AP2483-CR



Venderheiden    arrived      at    the   landing      zone    at   10:37      p.m.    and

testified that it took about 45 minutes from the time he got

there for the helicopter to arrive.                   Upon its arrival, Flight

for Life airlifted Dalton from the landing zone to Froedtert

Hospital in Milwaukee.

     ¶10    Subsequent to Dalton being airlifted from the scene,

Deputy Vanderheiden traveled to Community Memorial Hospital in

Menomonee Falls to speak with the passenger.                   Leaving the crash

scene at 11:14 p.m., Deputy Stolz drove to Froedtert Hospital in

Milwaukee to reconnect with Dalton.

     ¶11    When   Deputy    Stolz       arrived   at    Froedtert        Hospital    at

11:54 p.m., Dalton was receiving emergency treatment.                         After the

treatment    was   complete,       Deputy     Stolz     was   able       to   speak   to

Dalton, who had regained consciousness.

     ¶12    Upon interacting with Dalton, Deputy Stolz observed

that Dalton had glassy bloodshot eyes and the strong odor of

alcohol     emanating    from      his    mouth.         Dalton      also      appeared

lethargic.
     ¶13    At approximately 12:05 a.m., nearly two hours after

being    dispatched     to   the    crash     scene,    Deputy      Stolz      informed

Dalton that he was under arrest and read Dalton the "Informing

the Accused" form.3      Dalton refused a blood draw.


     3
       The Informing the Accused form in the record indicates
that Deputy Stolz read to Dalton the following:

     Under Wisconsin's Implied Consent Law, I am required
     to read this notice to you:

                                                                          (continued)
                                          4
                                                   No.   2016AP2483-CR



    ¶14   Believing that there were exigent circumstances that

would obviate the need to obtain a warrant, Deputy Stolz then

instructed   a   nurse   to   draw   Dalton's   blood,   which    was


    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.

    In addition, your operating privileges will also be
    suspended if a detectable amount of a restricted
    controlled substance is in your blood.


                                 5
                                                             No.     2016AP2483-CR



accomplished at 12:14 a.m.           A subsequent blood test indicated

that Dalton's blood alcohol content was 0.238 grams per 100

milliliters, nearly three times the legal limit of 0.08.

       ¶15    At the time Deputy Stolz read Dalton the Informing the

Accused      form,   there   were   nine    deputy    sheriffs      on   duty    in

Washington County, along with one supervisor.                Several of those

who were present at the crash scene left and proceeded directly

to other incidents that had taken place in the county that night

requiring immediate attention.

       ¶16    Deputy Polinske, who had initially responded to the

crash scene, ended his work day at 11:00 p.m.                    Deputy Anderson

arrived on the scene at 10:15 p.m. and was cleared to leave at

11:42 p.m.      He and one other deputy were subsequently dispatched

to an auto theft call in the Village of Richfield.

       ¶17    Lieutenant Martin arrived at the scene at 11:01 p.m.

and was cleared to leave at 11:46 p.m.               After leaving the crash

site    he   proceeded   immediately       to   another   auto    accident   that

involved personal injury in which the driver had fled the scene,
the vehicle was in the middle of the road, and power poles were

downed.      Three additional deputies accompanied Lieutenant Martin

to this scene.

       ¶18    With Deputy Stolz in Milwaukee attending to Dalton and

Deputy Vanderheiden in Menomonee Falls with the passenger, only

two deputies were left to cover all of Washington County.                       One

of these deputies was assigned to the northern half of the 432

square mile county, while the other was assigned to the southern
half.
                                       6
                                                                No.        2016AP2483-CR



       ¶19      Dalton   was    ultimately     charged   with   three        offenses:

operating while intoxicated (OWI) as a second offense, operating

with       a   prohibited      alcohol   concentration    (PAC)       as     a   second

offense, and operating after revocation (OAR).                    Dalton entered

no contest pleas to the OWI and OAR charges, and the PAC charge

was dismissed and read in.4                The case proceeded directly to

sentencing.

       ¶20      At sentencing, the circuit court heard argument from

the State and Dalton's counsel, as well as a brief statement

from Dalton himself.             In pronouncing its sentence, the circuit

court observed the nature of the offense, addressing Dalton:

       You certainly were driving like a maniac this night,
       and   you  were   extremely  uncooperative  with  the
       officers.   You could have killed your friend, you
       could have killed yourself, or you could have killed
       someone completely innocent, and you acted in total
       disregard of those risks, endangering anyone else who
       was on the road at the time.
       ¶21      The circuit then proceeded to address Dalton's refusal

to submit to a blood test:

       The other thing you did is anybody who drives a motor
       vehicle in Wisconsin impliedly consents to a blood or
       breath draw after they're arrested.     And you were
       arrested, and you disregarded that, and you will be
       punished for that today. You don't have the right not


       4
       When the State and a defendant agree that charges will be
read in, those charges are expected to be considered at
sentencing.   State v. Frey, 2012 WI 99, ¶68, 343 Wis. 2d 358,
817 N.W.2d 436.    The defendant understands that the read-in
charges could increase the sentence up to the maximum that the
defendant could receive for the conviction in exchange for the
promise not to prosecute those additional offenses. Id.


                                           7
                                                                            No.     2016AP2483-CR


     to consent.   And that's going to result in a higher
     sentence for you.
Dalton was sentenced to 180 days in jail on the OWI count and 90

days on the OAR count, to be served consecutively.

     ¶22    Dalton         filed     a     postconviction             motion       seeking       to

withdraw his no contest pleas.                   He asserted that his counsel was

ineffective     for        failing       to    file     a    motion        to     suppress     the

evidence resulting from the warrantless blood draw.                                       In the

event   his     ineffective          assistance             of     counsel        claim    proved

unsuccessful,         he     alternatively             sought        resentencing.              He

contended     that     the    circuit          court     erroneously            exercised      its

discretion     by     explicitly          punishing          him     for     exercising         his

constitutional right to refuse a warrantless blood draw.

     ¶23    The     circuit        court       denied       Dalton's       motion     for      plea

withdrawal without holding an evidentiary hearing.                                 It concluded

"that exigent circumstances justified the warrantless blood draw

in   this     case"    and     that           therefore          "trial    counsel        is   not

ineffective for failing to file a meritless motion[.]"

     ¶24    Dalton's motion for resentencing was also denied.                                   In
denying the motion, the circuit court stated, "everybody knows a

court may not punish a person for exercise of the constitutional

right, a right to trial, right to remain silent, but there is no

right to refuse, so the [c]ourt has discretion and I think [has]

the responsibility to consider a refusal an aggravating factor

in sentencing an offender accordingly."

     ¶25    Dalton appealed both the denial of his plea withdrawal
motion and his motion for resentencing.                            During the pendency of


                                                8
                                                  No.   2016AP2483-CR



the appeal, the United States Supreme Court decided Birchfield,

136 S. Ct. 2160.

    ¶26     The court of appeals reversed the circuit court.     See

State v. Dalton, No. 2016AP6-CR, unpublished slip op. (Wis. Ct.

App. July 20, 2016) (Dalton I).       It remanded the case to the

circuit court for a Machner5 hearing and directed the circuit

court to address Dalton's claim for resentencing in light of

Birchfield.

    ¶27     On remand, the circuit court held a Machner hearing,

where Dalton's trial counsel testified.       Counsel stated that

prior to entering his pleas, Dalton had raised concerns about

the fact that the police had taken his blood without a warrant.

Counsel researched the issue and wrote a memo for her file.       In

discussing with Dalton whether to file a motion to suppress,

counsel informed him that she "did not believe there was a basis

for it, and based on reviewing the discovery in conjunction with

the case law, and the facts surrounding the case, we talked

about it and determined there was not a basis for suppressing
the blood."

    ¶28     Following the Machner hearing, the circuit court again

denied Dalton's motion to withdraw his pleas, concluding that

exigent circumstances were present.    In making this decision, it

observed:



    5
       See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905
(Ct. App. 1979).


                                 9
                                                                         No.     2016AP2483-CR


     This was a complicated and fluid situation.     There's
     potentially   life-threatening    injuries    to    the
     Defendant, injuries to another individual.       Sounds
     like a chaotic night in Washington County in terms of
     the need for law enforcement work in a variety of
     contexts and relatively serious incidents.           In
     addition to the responsibilities the deputy had here
     for the traffic stop, he had to secure the accident,
     examine the scene, talk to witnesses, help get the
     Defendant out of the vehicle, get him into an
     ambulance, arrange for transport by helicopter, and
     then follow him down there promptly, and had to wait
     for him to get [] medical clearance before he could
     have contact with him.    And this happened outside of
     Washington County.   These are highly unusual factors.
     These are the kind of factors that are appropriate to
     consider   on  a   case-by-case  basis   in  making   a
     determination about whether exigent circumstances
     exist.
     ¶29     With regard to counsel's decision not to file a motion

to suppress, the circuit court stated: "[counsel] considered the

propriety of a motion to suppress here.                   She decided not to file

one, because she didn't think it had legal merit.                              She talked to

the Defendant about it before deciding."                          The circuit court

viewed     counsel's       decision    as   "the    result      of       an     exercise    of

reasonable        professional        judgment"     and     determined            that     her
assistance was "not ineffective for failing to file a meritless

motion."

     ¶30     Further, the circuit court determined that Birchfield

had no effect on its earlier sentencing decision.                                  It found

Birchfield     distinguishable          from     this    case     because         "Wisconsin

doesn't criminalize a refusal."                  In the circuit court's view,

"[i]ncreasing a punishment of a defendant because of his refusal

is   not    the     same    as   making      that       refusal      a     crime . . . ."



                                            10
                                                                     No.       2016AP2483-CR



Accordingly,         the     circuit      court        denied      the      motion      for

resentencing.

       ¶31    Dalton again appealed, renewing his arguments that he

is entitled to withdraw his plea due to ineffective assistance

of counsel and that he is entitled to resentencing pursuant to

Birchfield.         The court of appeals affirmed the circuit court,

concluding that "exigent circumstances existed that justified

the warrantless draw of [Dalton's] blood, and the circuit court

did not err in considering Dalton's refusal to the blood draw as

an aggravating factor in sentencing."                       State v. Dalton, No.

2016AP2483-CR, unpublished slip op., ¶1 (Wis. Ct. App. July 19,

2017) (Dalton II).

                                            II

       ¶32    This    case     presents     Dalton's        claim     of     ineffective

assistance of counsel.             For a claim of ineffective assistance of

counsel to be successful, a defendant must demonstrate both that

(1)    counsel's      representation          was       deficient;       and     (2)    the

deficiency was prejudicial.             State v. Maloney, 2005 WI 74, ¶14,
281    Wis. 2d 595,          698     N.W.2d 583          (citing      Strickland         v.

Washington, 466 U.S. 668, 687 (1984)).                   We need not address both

components of the inquiry if the defendant makes an insufficient

showing on one.        Id.

       ¶33    Appellate      review    of     an       ineffective       assistance      of

counsel claim is a mixed question of law and fact.                               State v.

Erickson,     227    Wis. 2d 758,      ¶21,      596     N.W.2d 749      (1999).        The

circuit court's findings of fact will not be disturbed unless
they    are    clearly       erroneous.          Id.       However,        the    ultimate
                                            11
                                                                            No.        2016AP2483-CR



determination of whether the attorney's performance falls below

the    constitutional         minimum     is        a    question      of    law        we    review

independently         of    the   determinations              rendered       by    the       circuit

court and court of appeals.               Id.

       ¶34     To demonstrate deficient performance, a defendant must

show    that    counsel's         representation              fell   below        an     objective

standard of reasonableness considering all the circumstances.

State     v.    Carter,      2010    WI     40,          ¶22,    324     Wis. 2d 640,            782

N.W.2d 695 (citing Strickland, 466 U.S. at 688).                                  Counsel has a

duty to reasonably investigate or to make a reasonable decision

that renders particular investigations unnecessary.                                 Carter, 324

Wis. 2d 640, ¶23.

       ¶35     In    evaluating     counsel's            performance,         this       court    is

highly deferential to counsel's strategic decisions.                                     State v.

Balliette, 2011 WI 79, ¶26, 336 Wis. 2d 358, 805 N.W.2d 334.

Counsel's performance need not be perfect, or even very good, to

be constitutionally adequate.               State v. Thiel, 2003 WI 111, ¶19,

264 Wis. 2d 571, 665 N.W.2d 305.
       ¶36     We are also asked to determine whether the circuit

court erroneously exercised its discretion at sentencing.                                         A

circuit court's sentence is a discretionary decision.                                     McCleary

v.    State,    49    Wis. 2d 263,        277,          182    N.W.2d 512         (1971).         On

appeal,      review    is    limited      to    determining            if    discretion          was

erroneously exercised.              State v. Gallion, 2004 WI 42, ¶17, 270

Wis. 2d 535,         678    N.W.2d 197.             An    exercise      of    discretion          is

erroneous if it is based on an error of fact or law.                                     Zarder v.
Humama       Ins.    Co.,    2010    WI     35,          ¶21,    324     Wis. 2d 325,            782
                                               12
                                                   No.   2016AP2483-CR



N.W.2d 682.   Additionally, a circuit court erroneously exercises

its sentencing discretion when it "actually relies on clearly

irrelevant or improper factors."     State v. Alexander, 2015 WI 6,

¶17, 360 Wis. 2d 292, 858 N.W.2d 662 (quoting State v. Harris,

2010 WI 79, ¶66, 326 Wis. 2d 685, 786 N.W.2d 409).

                               III

    ¶37   We begin by setting forth the principles of Fourth

Amendment law that govern blood draws in OWI cases.          Next we

apply those principles to the facts of this case, examining

Dalton's contention that his counsel was ineffective for failing

to file a motion to suppress the results of the warrantless

blood draw.   We then turn to Dalton's request for resentencing

due to the circuit court's alleged violation of Birchfield.

                                A

    ¶38   The Fourth Amendment to the United States Constitution

and Article I, Section 11 of the Wisconsin Constitution protect

against unreasonable searches and seizures.6       State v. Eason,
    6
       The Fourth Amendment to the United States Constitution
sets forth:

    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 of affirmation, and particularly
    describing the place to be searched, and the persons
    or things to be seized.

U.S. Const., Amend. IV. Article I, Section 11 of the Wisconsin
Constitution contains substantially the same language.     See
State v. Scull, 2015 WI 22, ¶18 n.3, 361 Wis. 2d 288, 862
N.W.2d 562.


                               13
                                                             No.   2016AP2483-CR



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

searches are presumptively unreasonable unless an exception to

the warrant requirement applies.            State v. Tullberg, 2014 WI

134, ¶30, 359 Wis. 2d 421, 857 N.W.2d 120 (citations omitted).

      ¶39   An exception to the warrant requirement applies when

there are exigent circumstances, i.e. if the need for a search

is urgent and there is insufficient time to obtain a warrant.

Id.    There are four circumstances which, when measured against

the time needed to obtain a warrant, constitute the exigent

circumstances required for a warrantless search:               (1) an arrest

made in "hot pursuit," (2) a threat to safety of a suspect or

others, (3) a risk that evidence will be destroyed, and (4) a

likelihood that the suspect will flee.            State v. Hughes, 2000 WI

24, ¶25, 233 Wis. 2d 280, 607 N.W.2d 621.

      ¶40   In an OWI case, the natural dissipation of alcohol in

the   bloodstream    may   present    a    risk   that     evidence   will   be

destroyed and may therefore support a finding of exigency in a

specific case.      Missouri v. McNeely, 569 U.S. 141, 156 (2013).
"While experts can work backwards from the BAC at the time the

sample was taken to determine the BAC at the time of the alleged

offense, longer intervals may raise questions about the accuracy

of    the   calculation."       Id.         For    this     reason,    exigent

circumstances to justify a warrantless blood draw "may arise in

the regular course of law enforcement due to delays from the

warrant application process."        Id.

      ¶41   Evidentiary rules reflect the fact that blood tests
decrease in accuracy as more time passes.                 Results of a blood
                                      14
                                                                       No.    2016AP2483-CR



test       are   automatically        admissible       to     prove    intoxication        or

demonstrate a prohibited alcohol concentration "if the sample

was taken within 3 hours after the event to be proved."                                  Wis.

Stat. § 885.235(1g) (2013-14).7                     After this three-hour window,

the evidence "is admissible only if expert testimony establishes

its probative value and may be given prima facie effect only if

the effect is established by expert testimony."                        § 885.235(3).

       ¶42       Yet the dissipation of alcohol in the blood does not

create an exigency per se.                McNeely, 569 U.S.            at 144.      Rather,

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

is    reasonable        must   be    determined       case    by    case   based    on    the

totality of the circumstances."                    Id. at 156.

       ¶43       The    test   for    determining       the    existence      of   exigent

circumstances           is   objective.        Tullberg,      359     Wis. 2d 421,       ¶41.

Courts      must       determine     whether    the    police      officers    under      the

circumstances known to them at the time reasonably believed that

a delay in procuring a warrant would risk the destruction of

evidence.         Id. (quoting State v. Robinson, 2010 WI 80, ¶30, 327
Wis. 2d 302, 786 N.W.2d 463).

                                               B

       ¶44       Here the totality of the circumstances amounted to, in

the    words       of    the   circuit    court,       a     "complicated     and    fluid

situation" and a "chaotic night in Washington County."                             Although

McNeely establishes that exigent circumstances "may arise in the

       7
       All subsequent references to the Wisconsin statutes are to
the 2013-14 version unless otherwise indicated.


                                               15
                                                                                No.       2016AP2483-CR



regular course of law enforcement due to delays from the warrant

application process[,]" 569 U.S. at 156, the circumstances with

which law enforcement officers were presented in this case went

well beyond the "regular course of law enforcement."

       ¶45     Events        on     the     evening       in       question         presented          the

officers       with        many    moving       parts     that       inform         our     analysis.

First, there were two injured people who needed urgent medical

attention.         A law enforcement officer "who is confronted with an

accident        scene[]           should        first     attend          to        the     emergency

circumstances at hand."                    Tullberg, 359 Wis. 2d 421, ¶49.                             The

officers' decision to tend to Dalton and his passenger's medical

needs    at     the    expense       of     requesting         a    warrant          was    certainly

reasonable.

       ¶46     Second, there was a need to examine and secure the

scene.        An      officer's       responsibilities              at    an        accident      scene

include       securing          evidence     and       ensuring      the       safety       of    those

traveling on the road near and through the scene.                                           State v.

Howes, 2017 WI 18, ¶46, 373 Wis. 2d 468, 893 N.W.2d 812.                                              That
the safety of passersby would take precedence over applying for

a warrant is, again, reasonable.

       ¶47     Third, it was imperative that law enforcement speak

with Dalton's passenger while events were fresh in his mind.

Just    as     alcohol          dissipates       in     the    blood,          the    memories         of

witnesses       fade.             Interviewing          witnesses         can       give     officers

necessary information to determine whether they have probable

cause     for      a       warrant        and     therefore         may        be     a     necessary
prerequisite          to    a     warrant       application.             Accordingly,            it   was
                                                  16
                                                                   No.    2016AP2483-CR



reasonable for Deputy Vanderheiden to drive to the hospital in

Menomonee Falls to speak with the passenger before applying for

a warrant for Dalton's blood.

      ¶48    Finally, the crash at issue here was not the only

incident requiring law enforcement attention that evening.                          Four

officers     were    needed     to   respond     to     an    accident      involving

personal injury, a fleeing driver, a vehicle in the middle of

the road, and downed power poles.              Two others were dispatched to

an auto theft.       This left two deputies to patrol the entirety of

Washington County, one assigned to the northern half and one to

the southern half of the 432 square mile county.                         Given these

other      incidents,   law     enforcement's         actions      were        certainly

reasonable under the circumstances.

      ¶49    This court is not in the business of second-guessing

law     enforcement's       reasonable    allocation         of   resources       in   a

complex and evolving situation.               See U.S. v. Sokolow, 490 U.S.

1,    11    (1989)   (explaining     that      courts    do       not    "indulge      in

unrealistic     second-guessing"         of   police's       "swift,      on-the-spot
decisions.")         When    presented    with    multifaceted           and    chaotic

circumstances like those presented here, law enforcement needs

flexibility to determine its priorities.

      ¶50    Dalton essentially contends that officers should have

prioritized arresting him over his medical needs and the safety

of the scene, not to mention the additional happenings in the

county.      His assertion is unpersuasive.                  Police serve a dual

purpose at an accident scene.             They are present to investigate
the cause of the accident and gather evidence of wrongdoing, but
                                         17
                                                                       No.    2016AP2483-CR



they are also there as first responders to injuries.                                 See 3

Wayne R. LaFave, Search & Seizure § 6.6 (5th ed. 2012) ("The

police have complex and multiple tasks to perform in addition to

identifying and apprehending persons committing serious criminal

offenses[,]" including "aid[ing] individuals who are in danger

of     physical        harm"     and    "provid[ing]       other       services     on   an

emergency basis.").

       ¶51       The     touchstone         of     the     Fourth        Amendment       is

reasonableness.               Ohio v. Robinette, 519 U.S. 33, 39 (1996).

Officers' prioritizing safety and medical needs over a warrant

application            when    presented         with    these     circumstances         was

reasonable.

       ¶52       Given the surrounding circumstances, the dissipation

of alcohol in Dalton's blood and the rapidly closing three-hour

window      to    accomplish      a    presumptively      admissible         and   accurate

blood      draw,        Deputy    Stolz     was     presented      with       an   exigent

circumstance.           Wis. Stat. § 885.235(1g).            Such events gave rise

to a reasonable belief that a delay in procuring a warrant would
risk       the     destruction         of   evidence.8           See    Tullberg,        359

Wis. 2d 421, ¶41.

       8
       We observe also that the record reflects that at the time
of these events, Washington County did not have a procedure in
place for warrants to be fully completed by email or phone.
Deputy Vanderheiden testified that Washington County's then-
existing protocol did not include emailing a search warrant to a
judge, conducting a telephonic search warrant, or faxing a
warrant application. Rather, the protocol required an in-person
meeting with the judge that, according to Deputy Vanderheiden's
testimony, would take about ten minutes.

                                                                              (continued)
                                             18
                                                                   No.     2016AP2483-CR



    ¶53    Consequently, a motion to suppress the blood evidence

would have been meritless, and the failure to file it does not

constitute      deficient    performance.9          State     v.     Cummings,       199

Wis. 2d 721, 747 n.10, 546 N.W.2d 406.                     Because we determine

that Dalton's counsel was not deficient, we need not address the

prejudice prong of the analysis.               State v. Breitzman, 2017 WI

100, ¶81, 378 Wis. 2d 431, 904 N.W.2d 93.

    ¶54    We     therefore     conclude       that       exigent        circumstances

existed,   permitting       police   to      draw   Dalton's       blood     absent   a

warrant.      Accordingly,     his     counsel      was    not     ineffective       for

failing to file a meritless motion to suppress.

                                        IV

    ¶55    Having     determined       that     Dalton's         counsel     was    not

ineffective,     we   turn    next   to      Dalton's      contention        that   the

circuit    court      erroneously         exercised        its      discretion        at

sentencing.      Specifically, Dalton argues that the circuit court

impermissibly     lengthened     his      sentence      because      he    refused    a



     Accordingly, Deputy Stolz testified that in order to obtain
a warrant, he would have needed to fill out a form and contact
the judge by phone. The judge would then direct him to an in-
person meeting place.    Thus, we consider Washington County's
protocol at the time of this incident as part of the totality of
the circumstances.
    9
       Further, Dalton's trial counsel diligently researched the
legal issue presented. The record reflects that Dalton's trial
counsel wrote a memo for her file on the issue of suppressing
the blood draw evidence. She concluded that there was no basis
for such a motion, and after discussing the issue with Dalton,
did not proceed with filing one.


                                        19
                                                                      No.    2016AP2483-CR



warrantless blood draw, thereby violating Birchfield, 136 S. Ct.

2160.

      ¶56   A circuit court must set forth the reasons for its

sentence on the record.           Wis. Stat. § 973.017(10m); Gallion, 270

Wis. 2d 535, ¶4.      In crafting a sentence, circuit courts are to

consider    the   protection       of    the   public,        the     gravity    of   the

offense,    and     the    rehabilitative         needs        of     the     defendant.

Gallion, 270 Wis. 2d         535, ¶44.          A circuit court erroneously

exercises its discretion when it bases its decision on an error

of law or fact.      Zarder, 324 Wis. 2d 325, ¶21.

      ¶57   In    Birchfield,       the    United        States        Supreme      Court

considered whether a law making "it a crime for a motorist to

refuse to be tested after being lawfully arrested for driving

while   impaired"    violates      the    Fourth       Amendment's          proscription

against unreasonable searches and seizures.                    136 S. Ct. at 2166-

67.     The Court concluded "that motorists cannot be deemed to

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

criminal offense."        Id. at 2186.
      ¶58   Moving    to    the    final       issue     in     its     analysis,     the

Birchfield court acknowledged that "prior opinions have referred

approvingly to the general concept of implied-consent laws that

impose civil penalties and evidentiary consequences on motorists

who refuse to comply."         Id. at 2185.            Yet, the court emphasized

that criminal penalties may not be imposed for a refusal.                             "It

is another matter, however, for a State not only to insist upon

an intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test."                     Id.     "There must be a
                                          20
                                                                    No.    2016AP2483-CR



limit to the consequences to which motorists may be deemed to

have   consented        by    virtue   of   a    decision   to     drive    on   public

roads."      Id.

       ¶59    In sum,        Birchfield     dictates that criminal penalties

may not be imposed for the refusal to submit to a blood test.

136 S. Ct. at 2185.             A lengthier jail sentence is certainly a

criminal      penalty.           See    Doering     v.    WEA      Ins.    Grp.,    193

Wis. 2d 118,        141,       532     N.W.2d 432        (1995)        (referring    to

imprisonment       as   a    criminal     penalty);      State    v.    Peterson,   104

Wis. 2d 616, 621, 312 N.W.2d 784 (1981) (same).

       ¶60    In setting forth the reasons for its sentence on the

record, the circuit court stated in relevant part:

       The other thing you did is anybody who drives a motor
       vehicle in Wisconsin impliedly consents to a blood or
       breath draw after they're arrested.     And you were
       arrested, and you disregarded that, and you will be
       punished for that today. You don't have the right not
       to consent.   And that's going to result in a higher
       sentence for you.
It was thus definitive in its intent to give Dalton a longer

sentence for the sole reason that he refused to submit to a

blood test.        This is a violation of Birchfield.

       ¶61    Pursuant to the circuit court's unequivocal sentencing

remarks,     Dalton      was    criminally       punished    for       exercising   his




                                            21
                                                                              No.    2016AP2483-CR



constitutional right.10               Established case law indicates that this

is   impermissible.              Harman      v.    Forssenius,          380    U.S.       528,    540

(1965); Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.2d 406

(1972) (explaining that "[a] defendant cannot receive a harsher

sentence      solely       because      he     availed         himself        of    one    of    his

constitutional           rights.");          see       also      Kubart       v.     State,        70

Wis. 2d 94,        97,     233      N.W.2d 404          (1975)    ("A     defendant          cannot

receive a harsher sentence solely because he has availed himself

of the important constitutional right of trial by jury.").

       ¶62    The    State          attempts       to     avoid     this       conclusion         by

contending that refusal to submit to a blood test is not a

stand-alone        crime       in    Wisconsin.           It     also    asserts          that   any

increase in a sentence within the statutorily prescribed range

does    not   morph        a    sentencing         consideration          into       a    criminal

penalty.      We find each of these contentions unconvincing.

       ¶63    As    to     the      State's       first       argument,       the     fact       that

refusal is not a stand-alone crime does not alter our analysis.11

       10
       Chief Justice Roggensack's dissent's reliance on South
Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983), is misplaced.
Neville was decided pre-McNeely and pre-Birchfield.        Both
McNeely and Birchfield have had a significant effect on drunk
driving law, and highlight the constitutional nature of a blood
draw.   Both cases analyze breath and blood tests as Fourth
Amendment searches and appear to supersede the statement from
the Fifth Amendment Neville case on which Chief Justice
Roggensack's dissent relies.
       11
       The circuit court distinguished Birchfield on the basis
that Wisconsin does not criminalize refusal.   See supra, ¶30.
For the same reasons we refute the State's argument here, we
find the circuit court's distinction inapt.


                                                  22
                                                                No.    2016AP2483-CR



This is not a distinction the Birchfield Court drew.                        Although

Birchfield     states      that   "motorists    cannot     be   deemed      to    have

consented to submit to a blood test on pain of committing a

criminal       offense[,]"         it    also       addresses         the         wider

impermissibility      of    criminal    penalties    for    refusal,        not    only

criminal charges.        See Birchfield, 136 S. Ct. at 2185-86.

       ¶64    Dalton's     sentencing    transcript       indicates      that       the

circuit court's comments were straightforward and unequivocal.

The circuit court plainly signaled that it was giving Dalton a

harsher penalty because of his refusal.12                 The fact that Dalton

could not be charged with a separate crime does not change the

fact that he explicitly received a stiffer sentence based solely

on his refusal to submit to an evidentiary blood test.

       ¶65    Second, the State asserts that refusal is a legitimate

sentencing consideration because it reflects on the character of

the defendant, and it may be taken into account as long as it

does    not   push   the    punishment    above     the    statutorily       allowed

maximum for OWI.           Accepting the State's argument would render
the limitations of Buckner and Kubart a nullity.                      Taken to its


       12
       The dissents disregard the circuit court's unambiguous
words, instead insisting that the circuit court considered
Dalton's refusal to submit to a blood draw as a factor
demonstrating Dalton's disregard of the law. See Chief Justice
Roggensack's dissent, ¶96; Justice Ziegler's dissent, ¶¶104-05.
The record does not bear out their assertion. The circuit court
stated, "You don't have the right not to consent.    And that's
going to result in a higher sentence for you." The causal link
between the Dalton's refusal and his lengthier sentence could
not have been made more apparent.


                                         23
                                                                                No.     2016AP2483-CR



logical      extreme,      the      State's      argument       would       allow        a    circuit

court to increase a sentence because a defendant exercised the

right to a jury trial, did not consent to a search of his home,

or exercised his right to remain silent, as long as the sentence

is   within        the    statutory       range.             Contrarily,          our     case    law

indicates that a defendant may not be punished in this manner.

       ¶66       The Birchfield court recognized that "[t]here must be

a limit to the consequences to which motorists may be deemed to

have   consented          by   virtue     of     a     decision       to    drive        on   public

roads."          136 S. Ct. at 2185.                  The limitation it established

directs:          no criminal penalties may be imposed for refusal.

Here     the      record       demonstrates            that     Dalton          was     criminally

penalized        for     his   refusal      to       submit    to     a    blood        draw.      By

explicitly         punishing      Dalton       for      refusal,          the     circuit        court

violated Birchfield.              In denying Dalton's postconviction motion

after remand, it made an error of law by misapplying Birchfield.

Such error constitutes an erroneous exercise of discretion.

       ¶67       We therefore conclude that the circuit court violated
Birchfield        by     explicitly     subjecting            Dalton       to    a     more    severe

criminal penalty because he refused to provide a blood sample

absent       a    warrant.           Consequently,            Dalton        is        entitled     to

resentencing.

                                                 V

       ¶68       In    sum,    we     conclude          that        exigent           circumstances

existed,         permitting      police     to        draw    Dalton's          blood     absent    a

warrant.          Accordingly,        his      counsel        was    not        ineffective       for
failing to file a meritless motion to suppress.                                         We further
                                                 24
                                                            No.   2016AP2483-CR



conclude    that    the   circuit   court     violated       Birchfield     by

explicitly subjecting Dalton to a more severe criminal penalty

because he refused to provide a blood sample absent a warrant.

Consequently, Dalton is entitled to resentencing.

    ¶69     Accordingly, we reverse the decision of the court of

appeals, and remand to the circuit court for resentencing.

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

reversed, and the cause remanded to the circuit court.




                                    25
                                                                No.   2016AP2483-CR.pdr


       ¶70   PATIENCE DRAKE ROGGENSACK, C.J.                    (dissenting).        The

circuit      court's   sentencing        of     Patrick    H.     Dalton    does    not

conflict with      Birchfield v. North Dakota,                  579 U.S. ___,        136

S. Ct.    2160   (2016)      and    is   well    within     the    circuit     court's

sentencing       discretion.             Because      the        majority      opinion

misunderstands       the    directive      of    Birchfield       and   expands      the

statutory opportunity to withdraw consent pursuant to Wis. Stat.

§ 343.305(4) into a constitutional right to refuse a blood draw

contrary to South Dakota v. Neville, 459 U.S. 553 (1983), I

respectfully dissent.

                                   I.    BACKGROUND

       ¶71   The majority opinion ably narrates the circumstances

surrounding Dalton's arrest and conviction for Operating While

Intoxicated      (OWI),      second       offense,        and     Operating        After

Revocation (OAR).          Therefore, I shall relate only that which is

necessary to assist the reader's understanding of this dissent.

       ¶72   Dalton was involved in a high-speed crash in which he

and his passenger were seriously injured.                   They were transported
to two different hospitals.                Dalton exhibited overt signs of

intoxication and Deputy Stolz arrested him for driving while

intoxicated.      Deputy Stolz read Dalton the Informing the Accused

form and Dalton withdrew his consent to a blood draw.

       ¶73   Deputy Stolz asked a nurse to draw a blood sample and

she did so.      Dalton had a blood alcohol level of 0.238.                    This is

nearly three times the level of 0.08 for which Dalton could have

been     convicted     of     unlawful          intoxication.           Wis.       Stat.
§§ 340.01(46m)(a) and 346.63(1)(b).

                                           1
                                                                     No.    2016AP2483-CR.pdr


    ¶74    At sentencing after Dalton's conviction for OWI, as a

second   offense,       and     conviction          for    OAR,   the       circuit       court

discussed the seriousness of the accident and how Dalton could

have killed his friend and himself.                       The court commented on his

level of intoxication and the foul language he used with the

arresting officer, who also had assisted in securing the med-

flight that Dalton needed.                  The court commented on Dalton's

withdrawal of consent to a blood draw as additional evidence of

Dalton's   disregard       of      his     obligations        under        the    law.       The

majority   opinion      elicits       no    other      comment    by       the    sentencing

court that it concludes was objectionable.

                                   II.     DISCUSSION

                              A.    Standard of Review

    ¶75    We    review       whether       Dalton's        sentencing           for    an   OWI

conviction      comes     within         the        proscriptions          of     Birchfield,

independent     of   the       court       of       appeals    and     circuit          court's

decisions while benefitting from their discussions.                                    State v.

Brereton, 2013 WI 17, ¶17, 345 Wis. 2d 563, 826 N.W.2d 369.                                   We
review a circuit court's sentencing decision under the erroneous

exercise of discretion standard.                    State v. Alexander, 2015 WI 6,

¶16, 360 Wis. 2d 292, 858 N.W.2d 662; State v. Gallion, 2004 WI

42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197.

                          B.       Birchfield Principles

    ¶76    Birchfield is the latest United States Supreme Court

decision in the saga of implied-consent laws.                               The Birchfield




                                                2
                                                                      No.   2016AP2483-CR.pdr


decision is a combination of three cases, but I will focus on

Danny Birchfield's circumstances.1

       ¶77    Coming upon Birchfield after he drove his vehicle off

a    North    Dakota     highway,    a    state      trooper          stopped     to   help.

Birchfield, 136 S. Ct. at 2170.                 It soon became apparent that

Birchfield       was    intoxicated.           Id.          The        trooper     arrested

Birchfield      and    informed     him   of    his     obligations           under     North

Dakota law to agree to a blood alcohol concentration (BAC) test

and that refusing to submit to a blood draw would subject him to

criminal penalties.2          Id.   Nevertheless, Birchfield refused.                     Id.

He then pleaded guilty to a misdemeanor violation of the refusal

statute, while contending that the Fourth Amendment prohibited

criminalizing his refusal.           Id. at 2170-71.

       ¶78    The     Court   explained    that       it    granted         certiorari    in

Birchfield      and    the    two   companion     cases         "in     order     to   decide

whether motorists lawfully arrested for drunk driving may be

convicted of a crime or otherwise penalized for refusing to take

a warrantless test measuring the alcohol in their bloodstream."
Id. at 2172.          The Court sharply focused on the Fourth Amendment

issue.       "The question, then, is whether the warrantless searches

at   issue     here    were   reasonable,"        id.      at   2173,       and   "how    the

       1
       The decision in Birchfield v. North Dakota, 579 U.S. ___,
136 S. Ct. 2160 (2016), addressed the contentions of Danny
Birchfield, William Bernard, Jr., and Steve Beylund.    Although
all involved implied-consent laws, all were different.     Those
circumstances relating to Danny Birchfield are most relevant to
my discussion.
       2
       In North Dakota, criminal penalties applied to breath,
blood and urine refusals. Id. at 2170.


                                           3
                                                                 No.    2016AP2483-CR.pdr


search-incident-to-arrest doctrine applies to breath and blood

tests incident to such arrests," id. at 2174.

       ¶79    Although the Court approved warrantless breath tests

for those arrested for operating a vehicle while intoxicated,

concluding       they   do     not    implicate      any    significant         privacy

concerns, id. at 2178, the Court concluded that blood draws did

involve privacy concerns due to "significant bodily intrusions"

required for blood draws, id.               However, the Court also concluded

that "requiring the police to obtain a warrant in every case

would impose a substantial burden but no commensurate benefit."

Id. at 2181-82.         Although the Court concluded that "Birchfield

was threatened with an unlawful search," because his refusal

would be criminalized under North Dakota law, id. at 2186, the

Court was less than clear about whether implied consent laws

that    impose      civil    penalties      and   evidentiary      consequences       on

motorists who refuse required a warrant for a blood draw.

       ¶80    The Court seemed to approve blood draws "based on the

driver's legally implied consent to submit to them."                              Id. at
2185.      The Court confirmed its approval of "implied-consent laws

that    impose      civil    penalties      and   evidentiary      consequences       on

motorists who refuse to comply."                   Id.     Therefore, refusal to

comply with an implied-consent law's consent to submit to a

blood draw could be sanctioned administratively.                          "Petitioners

do not question the constitutionality of those laws, and nothing

we   say     here   should    be     read   to    cast   doubt     on    them."      Id.

(emphasis added).



                                            4
                                                                           No.       2016AP2483-CR.pdr


       ¶81        However, the Court concluded that imposing criminal

penalties for withdrawing consent to a blood draw went too far.

"It is another matter, however, for a State not only to insist

upon       an    intrusive         blood     test,      but    also    to        impose       criminal

penalties on the refusal to submit to such a test."                                          Id.     The

Court then concluded that "motorists cannot be deemed to have

consented to submit to a blood test on pain of committing a

criminal offense."                 Id. at 2186.

       ¶82        Under the circumstances Dalton presents in the case

before          us,       his    refusal     was    not      criminalized.              Wis.       Stat.

§ 343.305(4).                   Rather,    the     misdemeanor        of       which    Dalton       was

convicted            was    a    consequence       of   his    withdrawing             consent     that

resulted in a revocation under § 343.305(10), which then counted

as     his        second          OWI      conviction         pursuant          to      Wis.       Stat.

§ 346.65(2)(am)2.                 Wis. Stat. § 343.307(1)(f).                     If his refusal

were counted as his first OWI, there would have been no criminal

penalties.            § 346.65(2)(am)1.

       ¶83        Stated        otherwise,        the   criminal      sanction          was    due    to
Dalton's          repetitive            driving     while     intoxicated.               Moving       to

criminal penalties because of repetitive OWI's was noted without

objection            in    Birchfield.            Id.   at    2169    ("the          State     imposes

increased             mandatory           minimum       sentences          for        drunk-driving

recidivists.").

       ¶84        The majority opinion aligns Birchfield with what it

asserts is Dalton's "more severe criminal penalty because he

refused         to    provide       a     blood    sample     absent       a    warrant."3           The
       3
           Majority op., ¶4.

                                                    5
                                                                     No.    2016AP2483-CR.pdr


"penalty" to which the majority refers was its own evaluation of

the discretionary sentencing of the circuit court for Dalton's

second OWI and first OAR convictions.                     Birchfield has nothing to

do with discretionary sentencing decisions.                          It turns entirely

on a mandatory criminal misdemeanor charge that North Dakota

imposed for refusing to submit to a blood draw.                        Id. at 2170-71.

      ¶85    The     majority      opinion       is    expanding       Birchfield          into

discretionary         sentencing      decisions           for    a         repetitive      OWI

conviction that required a criminal penalty.                               See Wis. Stat.

§ 346.65(2)(am)2.            Birchfield's expansion is apparent from the

majority     opinion's        definition         of    "criminal           penalty":        "A

lengthier jail sentence is certainly a criminal penalty."4                                 That

is not how "criminal penalty" was defined in Birchfield.                               There,

the comparison was between administrative penalties for refusal

and     statutorily      required         criminal        penalties          for    refusal.

Administrative          penalties         for         withdrawing           consent        were

permissible and criminal penalties were not.                       Id. at 2186.

      ¶86    In the case before us, the majority opinion misleads
the   reader       because    it   does   not      explain      that       Dalton    did   not

receive a criminal penalty for refusing to submit to a blood

draw.      Rather, he received a criminal penalty because he had

committed      a    second    OWI.     Wis.       Stat.    §§ 343.305(10)(b)1.              and

343.307(2)(f).

      ¶87    The     majority      opinion       doubles    down      on    its     erroneous

conclusion of law by asserting "Dalton was criminally punished


      4
          Majority op., ¶59.


                                             6
                                                                 No.    2016AP2483-CR.pdr


for exercising his constitutional right."5                   First, the majority

opinion contradicts the United States Supreme Court which has

held, Dalton had no constitutional right to withdraw his consent

that he gave when he drove his vehicle on Wisconsin highways

after drinking to the point of intoxication.                      Neville, 459 U.S.

at 560 n.10 & 565 (explaining that "a person suspected of drunk

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

alcohol test" and that the person's "right to refuse the blood-

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

South Dakota legislature."); see also Birchfield, 136 S. Ct at

2186 ("the Fourth Amendment did not require officers to obtain a

warrant prior to demanding the [breath] test, and Bernard had no

right to refuse it.").

    ¶88     Second, the cases cited by the majority do not provide

support    for   the   contention      that       Dalton   had    a     constitutional

right to refuse a blood test as the majority contends.                           To the

contrary,    the   cited   cases      have       nothing   to    do     with   implied-

consent    laws.       Harman    v.    Forssenius,         380    U.S.     528      (1965)
involved    restrictions        on    the       constitutional         right   to     vote

through the use of poll taxes.                   Buckner v. State, 56 Wis. 2d

539, 202 N.W.2d 406 (1972) involved an offhand court comment at

sentencing that Buckner contended invaded his right to remain

silent.     Kubart v. State, 70 Wis. 2d 94, 233 N.W.2d 404 (1975)

involved twelve separate counts of burglary, only one of which

was tried to a jury.            The defendant contended that the eight


    5
        Majority op., ¶61.


                                            7
                                                                             No.    2016AP2483-CR.pdr


year sentence was harsh and an erroneous exercise of discretion

based on his going to trial on one of the counts.                                         Once again

the    majority         opinion    tries          to     invoke       Birchfield          for     purely

sentencing      decisions.              Birchfield             has    nothing       to    do      with   a

circuit court's sentencing discretion.

       ¶89    Also of concern is that the majority opinion could be

read    to    conclude         that     Birchfield             prohibits         the      misdemeanor

penalty      that       Wis.     Stat.       § 346.65(2)(am)2.                 requires         due      to

Dalton's      revocation          for    refusing           to       take    a     requested          test

counting      as    a    second       OWI.          In    the        future,       recidivists         may

withdraw      consent       for       all     tests        for        intoxication           if    their

refusals cannot lead to criminal penalties due to OWI recidivism

that would have been imposed upon proof of intoxication from

actual       blood,       breath        or        urine        tests.            See     Wis.      Stat.

§§ 343.305(10); 343.307(1)(f) and 346.65(2)(am)2-7.

       ¶90    The       United     States           Supreme          Court       should        consider

granting       review       herein           to     explain           the      Fourth        Amendment

parameters         of     Birchfield              when     state         law        penalties          for
withdrawing        consent        are    civil           and    evidentiary            and     criminal

penalties      occur       for     recidivism.                 In     addition,          because      the

majority       opinion         chooses        to         disregard          Neville's          explicit

statements that a person's refusal to permit a blood draw after

being arrested for OWI is a matter of legislative grace not one

of constitutional right, proof possible at OWI trials may be

compromised by the exercise of this new Fourth Amendment right.

These issues need attention and can receive none further in
Wisconsin courts.

                                                    8
                                                                 No.    2016AP2483-CR.pdr


                                    C.    Sentencing

    ¶91       Sentencing is a discretionary decision of the circuit

court.        Gallion,     270     Wis. 2d    535,    ¶17.      A      circuit    court's

exercise      of    discretion      is    afforded    "a     strong     presumption     of

reasonability" because the circuit court is able to view the

demeanor      of     the   defendant       and     assess     competing      sentencing

interests.         Id., ¶18.

    ¶92       The focus of a sentencing court's consideration should

be the gravity of the offense, the character and rehabilitative

needs of the offender and the need for public protection.                            State

v. Sarabia, 118 Wis. 2d 655, 673, 348 N.W.2d 527 (1984).                                 A

sentencing         court   properly       exercises    its     discretion        when    it

relies on controlling law and sets out reasoning that supports

its sentencing.            McCleary v. State, 49 Wis. 2d 263, 281, 182

N.W.2d 512 (1971).               When a circuit court actually relies on

improper      factors,      it     erroneously       exercises        its   discretion.

Alexander, 360 Wis. 2d 292, ¶17.

    ¶93       In     Dalton's       sentencing,       the      circuit       court      was
concerned with Dalton's repeated lack of respect for the law.

The court noted that this was Dalton's second OWI and his BAC of

0.238    is   so     far   above    the    legal     limit    that     it   evidences    a

complete disregard of his obligation to refrain from consuming

significant alcohol before driving.                   Dalton was operating after

revocation when he incurred this second OWI offense, and he

drove recklessly, at close to 100 miles per hour, causing severe

injury to his passenger and himself.



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                                                                     No.    2016AP2483-CR.pdr


       ¶94       Dalton objects to the circuit court's reference to his

withdrawal of consent to submit to a blood draw as sufficient

reason to remand for resentencing.                   The majority opinion agrees

with Dalton.6           However, that one comment is insufficient to show

that       the   circuit       court   erroneously        exercised        its     sentencing

discretion.

       ¶95       The court made a record of its concerns for Dalton's

lack of respect for the law, and failing to authorize a blood

draw was just one such incident.                    The court was concerned with

Dalton's         level     of    intoxication,        0.238.           Wisconsin          Stat.

§ 346.65(2m)(a) guides the effect of BAC level in sentencing.

It provides:

       In imposing a sentence under sub. (2) for a violation
       of s. 346.63(1)(am) or (b) or (5) . . . the court
       shall review the record and consider the aggravating
       and mitigating factors in the matter.   If the amount
       of alcohol in a person's blood . . . is known, the
       court shall consider that amount as a factor in
       sentencing.
       ¶96       Dalton's       BAC    level    supports       the     circuit        court's

sentence as does his reckless driving and his driving after
revocation.         All bear on Dalton's character and demonstrate that

it will not be easy to get him to turn his conduct around.                                  The

majority opinion takes the circuit court's singular statement

about Dalton's refusal out of context.                      Read within the court's

full sentencing discussion, it was just one of many factors that

showed       Dalton's       complete      disregard       of   the         law,    which    is

indicative         of    his    character.          The    circuit         court    did     not

       6
           Majority op., ¶4.


                                               10
                                                              No.   2016AP2483-CR.pdr


erroneously exercise its discretion.                State v. Salas Gayton,

2016 WI 58, ¶¶3, 15, 370 Wis. 2d 264, 882 N.W.2d 459 (concluding

that the circuit court's comments on Mr. Gayton's status as an

illegal alien did not demonstrate reliance on an improper factor

at sentencing).

                              III.    CONCLUSION

    ¶97   The    circuit   court's         sentencing    of    Dalton     does   not

conflict with Birchfield and is well within the circuit court's

sentencing      discretion.           Because      the        majority      opinion

misunderstands     the   directive        of   Birchfield      and    expands    the

statutory opportunity to withdraw consent pursuant to Wis. Stat.

§ 343.305(4) into a constitutional right to refuse a blood draw,

I respectfully dissent.

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

GABLEMAN joins this dissent.




                                          11
                                                                             No.    2016AP2483-CR.akz


       ¶99    ANNETTE          KINGSLAND      ZIEGLER,           J.     (dissenting).               The

majority opinion seriously errs.                      Driving on a public highway is

not a constitutional right nor is it a right at all.                                              When

someone chooses to drive in the public domain, they must comply

with    state       statutes       commensurate         with          that    privilege.            Our

legislature requires, for example, a public highway driver to

possess a valid driver's license.                          See Wis. Stat. § 343.18(1).

The consequence for not having one is a civil ticket.                                               See

§ 343.18(3).             Our    legislature          has    also       determined,          as    many

states have, that there are consequences for a public highway

driver who drives intoxicated.                       One consequence of doing so is

to have impliedly consented to a blood test, provided of course

that     there      is     sufficient         evidence           that        they     are    driving

intoxicated.             See    Wis.     Stat.   § 343.305(3).                     They   still     may

refuse       this    implied       consent,          but,    like        driving          without     a

license,      that       refusal       will   result        in    a     civil       ticket.         See

§ 343.305(9).            It might be one thing if the consequence for

refusing that test were a criminal charge, as in Birchfield v.
North Dakota, 579 U.S. ____, 136 S. Ct. 2160 (2016), but in

Wisconsin, as in many states, the consequence under our implied

consent law is civil.

       ¶100 Relying on refusal to consent in determining sentence

for an OWI does not change the civil nature of the refusal

ticket.       Judges can and do consider a variety of factors when

imposing sentence——including conduct that is not against the law

at     all    (e.g.,       lack     of     remorse)——and               the     obstructive          and
prohibited behavior of refusal is but one proper consideration.

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                                                               No.    2016AP2483-CR.akz


Thus, the majority errs in concluding that the circuit court

erroneously exercised its discretion when it considered Dalton's

refusal to consent to the blood draw during sentencing because

considering refusal to consent as a factor during sentencing is

not the same as criminalizing refusal.                   Therefore, although the

United States Supreme Court proscribed criminalizing refusal in

Birchfield, it did not proscribe, and in fact seemingly approved

of, a civil penalty for refusal.                See Birchfield, 136 S. Ct. at

2185-86.     I therefore disagree with the majority in our case

today for at least two reasons: first, the court interprets

Birchfield's    holding      too    broadly;       and    second,      its        analysis

erroneously     equates      "sentencing         factor"       with    a      "criminal

statute."       In    sum,    the    majority        opinion         today    rewrites

Birchfield     and   redrafts      state       statutes,      and,    in     so    doing,

unnecessarily    creates     significant         risk    to    the    users        of   our

public highways.

    ¶101 Accordingly, I respectfully dissent,1 and I join Chief

Justice Roggensack's call for the United States Supreme Court to
assist the state courts with respect to this issue.




    1
       I do not disagree with the majority's analysis in Part
III.B of the opinion, which concludes that Dalton's trial
counsel was not ineffective for failing to file a motion to
suppress the blood evidence because such a motion would have
been meritless given the exigent circumstances "[giving] rise to
a reasonable belief that a delay in procuring a warrant would
risk the destruction of evidence."     Majority op., ¶52; id.,
¶¶53-54. This issue, however, is not why we took this case.


                                           2
                                                                    No.    2016AP2483-CR.akz

                I.    WISCONSIN CIVIL, NORTH DAKOTA CRIMINAL
      ¶102 In        Wisconsin,    refusal        to   consent       to    a    blood     draw

subjects a driver to civil, not criminal penalties.                               See Wis.

Stat. § 343.305(9).            By contrast, the North Dakota statutes at

issue in Birchfield had made it a crime to refuse to consent.

See     136    S.     Ct.   at     2170    (citing          N.D.     Cent.      Code      Ann.

§§ 39-08-01(2), 39-20-01(3)(a)).                  And the United States Supreme

Court     concluded         that     the     North          Dakota        statutes        were

unconstitutional for that specific reason.                         The Court concluded

that "motorists cannot be deemed to have consented to submit to

a blood test on pain of committing a criminal offense."                                Id. at

2186 (emphasis added).              Thus, Birchfield stands only for the

narrow proposition that implied consent statutes which make it a

crime to refuse to consent are unconstitutional, and Wisconsin's

implied consent law, which does not make it a crime to refuse to

consent       and    imposes     only     civil    penalties         for       refusal,     is

therefore not unconstitutional under Birchfield.                               The majority

errs in conflating these distinctions.

      ¶103 Furthermore,            the     Court       in     Birchfield          "referred
approvingly to the general concept of implied-consent laws that

impose civil penalties and evidentiary consequences on motorists

who refuse to comply," and indicated that "nothing [said] here

should be read to cast doubt on them."                         136 S. Ct. at 2185.

Thus, Wisconsin's implied consent law, which imposes only civil

penalties, is not only not unconstitutional under Birchfield,

but is also seemingly approved by the Supreme Court.                             Today, our
majority rewrites the Supreme Court opinion to fit its analysis.


                                            3
                                                                    No.    2016AP2483-CR.akz


    ¶104 In      sum,     Birchfield       narrowly       holds      only     that       state

statutes    which    make      it   a    crime    to     refuse       to     consent      are

unconstitutional.         That is not what we have here.                    In Wisconsin,

it is not a crime to refuse to consent; rather, Wis. Stat.

§ 343.305(9)     imposes        only      civil        penalties          (i.e.,       license

revocation).     Thus, Birchfield does not dictate the outcome of

this case and the majority opinion today is at odds with, rather

than consistent with, the United States Supreme Court.                             It reads

Birchfield too broadly and then misapplies Birchfield to send

this case back for resentencing, requiring the circuit court to

ignore relevant, pertinent, and objective facts that can and

should   reasonably       be    considered        by    the    circuit        court      when

imposing sentence on an individual who had been convicted for

drunk driving.

                    II.   SENTENCING FACTOR, NOT A CRIME
    ¶105 The        majority        erroneously         equates           North    Dakota's

unconstitutional        criminal        statute    with       the    factors       a    judge

sentencing a drunk driver can consider——as judges have done for

decades——namely, that the defendant refused to consent.                                 In so

doing,     the   court      rewrites       Birchfield          and        redrafts      state

statutes.    The court here concludes:

         In   sum,   Birchfield  dictates  that   criminal
    penalties may not be imposed for the refusal to submit
    to a blood test.    136 S. Ct. at 2185.    A lengthier
    jail sentence is certainly a criminal penalty.     See
    Doering v. WEA Ins. Grp., 193 Wis. 2d 118, 141, 532
    N.W.2d 432 (1995) (referring to imprisonment as a
    criminal penalty); State v. Peterson, 104 Wis. 2d 616,
    621, 312 N.W.2d 784 (1981) (same).
Majority op., ¶59.        In so doing, the court commits error.

                                            4
                                                                  No.   2016AP2483-CR.akz


       ¶106 First, as noted above, see supra ¶¶102-104, Birchfield

did not broadly hold that "criminal penalties may not be imposed

for the refusal to submit to a blood test," majority op., ¶59;

rather, Birchfield held more narrowly that a state statute which

made   it   a    crime    to     refuse    to    consent    to    a     blood    draw   is

unconstitutional.

       ¶107 Second,      even      if     Birchfield      stood       for   that      broad

proposition, reliance on refusal as a factor in sentencing still

does not "criminalize" refusal in Wisconsin; that is, it does

not transform Wisconsin's civil refusal statute into a crime.

Circuit courts regularly rely on the behavior of defendants when

imposing      sentence     (e.g.,       criminal    and     civil       record,       other

uncharged        crimes,         lack       of     remorse,           and       violating

probation/parole), and that behavior is not transformed into a

crime, nor is it considered a criminal penalty, by virtue of its

relevance to sentencing.

       ¶108 In    sum,     the    majority       erroneously       requires         circuit

courts to put blinders on, to not consider relevant, pertinent,
and objective factors related to the particular crime before the

court, and instead insists that it is error for a court to

impose sentence based upon the facts of the case before it.

                                  III.     CONCLUSION
       ¶109 The majority opinion seriously errs.                         Driving on a

public highway is not a constitutional right nor is it a right

at all.       When someone chooses to drive in the public domain,

they   must     comply   with     state     statutes    commensurate         with     that
privilege.        Our    legislature       requires,      for    example,       a   public

                                            5
                                                              No.   2016AP2483-CR.akz


highway driver to possess a valid driver's license.                       See Wis.

Stat. § 343.18(1).          The consequence for not having one is a

civil   ticket.      See    § 343.18(3).        Our    legislature        has   also

determined, as many states have, that there are consequences for

a public highway driver who drives intoxicated.                     One consequence

of doing so is to have impliedly consented to a blood test,

provided of course that there is sufficient evidence that they

are driving intoxicated.           See Wis. Stat. § 343.305(3).                 They

still may refuse this implied consent, but, like driving without

a license, that refusal will result in a civil ticket.                           See

§ 343.305(9).       It might be one thing if the consequence for

refusing that test were a criminal charge, as in Birchfield v.

North Dakota, 579 U.S. ____, 136 S. Ct. 2160 (2016), but in

Wisconsin, as in many states, the consequence under our implied

consent law is civil.

     ¶110 Relying on refusal to consent in determining sentence

for an OWI does not change the civil nature of the refusal

ticket.    Judges can and do consider a variety of factors when
imposing sentence——including conduct that is not against the law

at   all   (e.g.,    lack    of    remorse)——and        the     obstructive      and

prohibited behavior of refusal is but one proper consideration.

Thus, the majority errs in concluding that the circuit court

erroneously exercised its discretion when it considered Dalton's

refusal    to   consent     to    the   blood    draw     during        sentencing.

Considering refusal to consent as a factor during sentencing is

not the same as criminalizing refusal.                Therefore, although the
United States Supreme Court proscribed criminalizing refusal in

                                        6
                                                                No.    2016AP2483-CR.akz


Birchfield, it did not proscribe, and in fact seemingly approved

of, a civil penalty for refusal.                 See Birchfield, 136 S. Ct. at

2185-86.     I therefore disagree with the majority in our case

today for at least two reasons: first, the court interprets

Birchfield's    holding       too    broadly;       and   second,       its    analysis

erroneously     equates       "sentencing         factor"       with     a     "criminal

statute."       In     sum,    the    majority        opinion         today    rewrites

Birchfield     and    redrafts      state       statutes,      and,    in     so   doing,

unnecessarily       creates   significant         risk    to    the    users       of   our

public highways.

    ¶111 Accordingly, I respectfully dissent,2 and I join Chief

Justice Roggensack's call for the United States Supreme Court to

assist the state courts with respect to this issue.

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

GABLEMAN joins this dissent.




    2
       I do not disagree with the majority's analysis in Part
III.B of the opinion, which concludes that Dalton's trial
counsel was not ineffective for failing to file a motion to
suppress the blood evidence because such a motion would have
been meritless given the exigent circumstances "[giving] rise to
a reasonable belief that a delay in procuring a warrant would
risk the destruction of evidence."     Majority op., ¶52; id.,
¶¶53-54. This issue, however, is not why we took this case.


                                            7
    No.   2016AP2483-CR.akz




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