                                                                   2017 WI 18

                  SUPREME COURT                  OF   WISCONSIN
CASE NO.:                2014AP1870-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Appellant,
                              v.
                         David W. Howes,
                                   Defendant-Respondent.

                               ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:           March 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           October 20, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Dane
   JUDGE:                John W. Markson

JUSTICES:
   CONCURRED:            GABLEMAN, J. joined by ZIEGLER, J. concur
                         (Opinion filed).
                         KELLY, J. concurs (Opinion filed).
  DISSENTED:             ABRAHAMSON, J. joined by BRADLEY, A. W., J. and
                         KELLY, J. (joining Part II insofar as it
                         discusses the constitutionality of Wis. Stat. §
                         343.305 (3) (b)). (Opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:
       For the plaintiff-appellant the cause was argued by Ryan J
Walsh, chief deputy solicitor general, with whom on the brief
was Misha Tseytlin, solicitor general, Brad D. Schimel, attorney
general.


       For the defendant-respondent, there was a brief by Mark A.
Eisenberg,        Jack    S.    Lindberg   and   Eisenberg   Law    Office,   S.C.,
Madison, and oral argument by Mark A. Eisenberg.
                                                                             2017 WI 18
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2014AP1870-CR
(L.C. No.    2013CF1692)

STATE OF WISCONSIN                                 :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Appellant,                                        FILED
      v.                                                               MAR 1 2017
David W. Howes,                                                         Diane M. Fremgen
                                                                     Clerk of Supreme Court
              Defendant-Respondent.




      Appeal from an order of the Circuit Court.                         Reversed and

cause remanded.



      ¶1      PATIENCE     DRAKE     ROGGENSACK,       C.J.       This     case     comes

before us by certification from the court of appeals.                               David
Howes was charged with operating a vehicle while intoxicated

(OWI)     (fourth   offense    while      having   a     prior     OWI    within      five

years) in violation of Wis. Stat. § 346.63(1)(a) (2013-14)1 and

operating     a   vehicle     with    a   prohibited       alcohol       concentration

(PAC)     (fourth   offense    while      having   a     prior     PAC    within      five


      1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
                                                                      No.    2014AP1870-CR



years) in violation of § 346.63(1)(b) based on analysis of his

blood showing a blood alcohol concentration of 0.11 percent.

      ¶2       Howes moved to suppress the results of a warrantless

blood draw, arguing that the deputy that arrested Howes lacked

probable       cause    to   do   so    and,       additionally,     that    the   deputy

violated Howes' rights by obtaining a warrantless blood draw.

The   circuit       court    granted      Howes'      motion    to   suppress.2          The

circuit court concluded that the deputy had probable cause to

arrest Howes.           However, the court reasoned, relying heavily on

State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d

867, that the section of Wisconsin's implied consent statutes

that permits a blood draw from an unconscious individual is

unconstitutional, unless exigent circumstances exist.                              Because

the circuit court concluded that none existed, it suppressed the

report of Howes' blood alcohol concentration.3

      ¶3       We      conclude     that       the     circuit       court     correctly

determined that the deputy had probable cause to arrest Howes

for operating a vehicle with a PAC, and that Howes was arrested
prior     to   obtaining     a    blood    sample.        Moreover,     based      on    the

totality       of   circumstances         herein,       the    deputy's      warrantless

search was permissible under the Fourth Amendment of the United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution        under     the      exigent       circumstances     doctrine         that


      2
          The Honorable John W. Markson of Dane County presided.
      3
          See Wis. Stat. § 343.305(3).


                                               2
                                                                            No.    2014AP1870-CR



relates to the risk of destruction of evidence.4                                   Stated more

fully,   under      the     totality         of     circumstances         presented       herein,

which included a seriously injured, unconscious person, who was

being subjected to medical treatments for his injuries and who

had 0.02 percent as his PAC threshold, a reasonable officer

could have concluded that further delay in drawing Howes' blood

would    have      led     to    the    destruction             of    evidence    through     the

dissipation        and     dilution          of    alcohol       in     Howes'    bloodstream.

Therefore, we reverse the order of the circuit court and remand

for further proceedings.

                                       I.     BACKGROUND

    ¶4        At   approximately             9:18        p.m.   on    July 7,     2013,   Deputy

Robert Schiro of the Dane County Sheriff's Office received a

call from dispatch indicating that an individual had been in a

motorcycle crash with a deer.                      Dispatch detailed that the driver

was unconscious.                Deputy Schiro arrived at the scene of the

accident and found the deceased deer and the motorcycle in the

middle   of     the      road.         The    driver       of    the    motorcycle      was   the
defendant in the present case, David Howes.                               He was positioned

approximately         40   feet     away          from    the    deer    and     was   seriously

    4
       Because we conclude that the search was reasonable under
the totality of circumstances presented herein, we need not
reach   whether   Wis.   Stat.    § 343.305(3)(b)  is  facially
unconstitutional.   See generally, State v. Stoehr, 134 Wis. 2d
66, 70, 396 N.W.2d 177 (1986) ("When this court grants direct
review upon certification, it acquires jurisdiction of the
appeal, which includes all issues, not merely the issues
certified or the issue for which the court accepts the
certification.").


                                                   3
                                                                          No.     2014AP1870-CR



injured and unconscious.                   When the deputy arrived, Emergency

Medical Services (EMS) was already attending to Howes.

       ¶5      At the scene, there were several bystanders situated

near EMS and the ambulance.                 The deputy unsuccessfully searched

for     a    witness        that    had     observed        the      accident.          Though

unsuccessful, the deputy testified that an individual approached

him    and,    referring       to    Howes,       stated     he     smelled     an    odor   of

intoxicants.           As    the    lone   police         officer    at   the     scene,     the

deputy had multiple responsibilities relating to containing the

accident scene and was unable to obtain the individual's name.

       ¶6      While EMS continued to attend to Howes, the deputy had

to ensure the safety of those traveling through the accident

scene       because    a     dead   deer    and       a    motorcycle      were      partially

blocking the road.              The deputy began to direct traffic lanes

that ran through the scene of the accident.                               The deputy also

ensured that no one moved the motorcycle and preserved other

evidence relating to the accident.                        The deputy asked bystanders

to    move    out     of    EMS's   way.         During     his     investigation,       other
officers arrived, and Howes, still unconscious, was transported

to the hospital.

       ¶7      The deputy then left to go to the hospital to follow

up with Howes.              During the drive to the hospital, the deputy

checked       Howes'        Department      of       Transportation        records.          He

testified that his purpose was to confirm that the motorcycle

driver was in fact Howes and to check Howes' driving record.                                 As

a result of this record check, the deputy discovered that Howes
had three prior OWI/PAC convictions.                         These prior convictions
                                                 4
                                                                         No.     2014AP1870-CR



signaled     to    the    deputy    that    Howes       had    a   PAC      threshold     more

restrictive than the usual 0.08 percent.                           Specifically, Howes

violated the law if he had operated the motorcycle with a blood

alcohol concentration of as little as 0.02 percent.5

      ¶8     After       the     deputy     arrived           at   the       hospital,      he

immediately       spoke    with    the     two    Emergency        Medical       Technicians

(EMTs),     who    were     in     the    ambulance        with       Howes     as   he    was

transported to the hospital.                The deputy inquired about whether

either of the EMTs had smelled alcohol on Howes' breath.                                   The

deputy testified that the EMT positioned in the ambulance near

Howes' head smelled a "high odor of intox coming from" Howes.

The EMT positioned in the ambulance at Howes' feet did not smell

intoxicants.

      ¶9     The deputy proceeded to the emergency room in which

medical staff was treating Howes.                       The deputy testified that

"numerous nurses and medical staff [were] attending to [Howes]

at   the    time."        The    ongoing    medical       treatment          prevented     the

deputy from approaching Howes.                    However, one nurse told the
deputy that there was a strong odor of intoxicants in Howes'

room.

      ¶10    The     deputy      observed        that     Howes       had      not   regained

consciousness and that he was intubated to assist his breathing.

The deputy spoke with a physician with regard to Howes' medical

condition.         The    physician       said     that       Howes    was      in   critical


      5
          See Wis. Stat. § 340.01(46m)(c).


                                             5
                                                                        No.   2014AP1870-CR



condition and possibly had a brain injury.                        He said that Howes

needed a CT scan to further evaluate his injuries.

      ¶11    At approximately 10:15 p.m., the deputy arrested Howes

for     operating    a   motor       vehicle     with       a    prohibited        alcohol

concentration.       The deputy testified that he arrested Howes for

the following reasons:           (1) three different individuals smelled

an odor of intoxicants emanating from Howes; (2) Howes had a

prohibited alcohol concentration threshold of 0.02 percent due

to his previous drunk-driving convictions; and (3) the crash.

      ¶12    After    arresting       Howes,     and    while       Howes     was    still

unconscious, the deputy read Howes the informing the accused

form.       The    deputy    asked    Howes      if    he       would     submit    to   an

evidentiary       chemical   test     of   his    blood,         and     Howes     did   not

respond.6     The deputy then instructed hospital staff to draw a

blood sample to test for alcohol concentration.

      ¶13    At 11:17 p.m., roughly two hours after the accident

and an hour after the deputy asked hospital staff to draw Howes'

blood, a phlebotomist completed the blood draw.                               The deputy
testified that the hour delay occurred either because medical

personnel at the hospital were too busy to draw the blood, or

Howes may have had a CT scan during this interim period.7                                The

      6
       The deputy said he took these steps even though Howes was
unconscious because he thought he was legally required to do so.
      7
       If a CT scan occurred during this period, it would be
consistent with a physician's statement to the deputy shortly
after the deputy arrived at the hospital that Howes needed to
have a CT scan.


                                           6
                                                                       No.       2014AP1870-CR



report of the blood test stated that Howes had a 0.11 percent

blood alcohol concentration.              This was well in excess of the

0.02 percent prohibited alcohol concentration threshold to which

he was subjected due to his prior drunk-driving convictions.

    ¶14     Howes    was   charged        with   operating         a     vehicle       while

intoxicated      (OWI)   (fourth      offense      while      having         a    prior    OWI

within five years) in violation of Wis. Stat. § 346.63(1)(a) and

operating    a   vehicle      with    a   prohibited        alcohol          concentration

(PAC)   (fourth     offense    while      having      a    prior   PAC        within       five

years) in violation of § 346.63(1)(b).                    Howes moved to suppress

the report that resulted from the blood draw.                      The circuit court

granted Howes' motion.          First, the circuit court concluded that

the deputy had probable cause to arrest Howes.                         The court based

its conclusion, in part, on the statements to the deputy by

various     individuals    indicating          that       there    was       a     smell    of

intoxicants coming from Howes.                 The court also concluded that

"central to the probable cause determination [was] that this was

a gentleman who had three prior convictions," and was subject to
a PAC threshold of 0.02 percent, rather than 0.08 percent.                                  As

part of this determination, the court found that the deputy had

searched Howes' driving record prior to arresting Howes; and

therefore, he knew that Howes was subject to a PAC threshold of

0.02 percent.

    ¶15     Next,        the         circuit          court        addressed                the

constitutionality of Wisconsin's implied consent statute as it

relates to unconscious persons, Wis. Stat. § 343.305(3)(b).                                The
court concluded that § 343.305(3)(b), which allows withdrawal of
                                           7
                                                                No.    2014AP1870-CR



blood from an unconscious person, is unconstitutional if the

blood draw is done without a warrant or the presence of exigent

circumstances.     After finding the statute unconstitutional, the

circuit court, without analysis, concluded that there were no

exigent circumstances presented by this case.

      ¶16    The State appealed and the court of appeals certified

the case for our review.       We now reverse.

                              II.   DISCUSSION

                        A.     Standard of Review

      ¶17    "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 (quoting State v. Robinson, 2010 WI 80, ¶22, 327

Wis. 2d 302, 786 N.W.2d 463).           "When presented with a question

of   constitutional    fact,    this        court   engages     in     a    two-step

inquiry."     Robinson, 327 Wis. 2d 302, ¶22.

      ¶18    First, the circuit "court's findings of evidentiary or

historical fact will not be overturned unless they are clearly
erroneous."     State v. Richter, 2000 WI 58, ¶26, 235 Wis. 2d 524,

612 N.W.2d 29.      Next, we "independently determine whether the

historical or evidentiary facts establish exigent circumstances

sufficient to justify the warrantless" search.                Id.

      ¶19    In the present case, we apply this two-step inquiry to

determine    whether   the   warrantless        blood   draw     was       reasonable

under the Fourth Amendment of the United States Constitution and

Article I, Section 11 of the Wisconsin Constitution.


                                        8
                                                                              No.     2014AP1870-CR



                             B.     General Principles

       ¶20   A blood draw is a search of the person.                                Tullberg, 359

Wis. 2d 421, ¶31 ("A blood draw to uncover evidence of a crime

is a search within the meaning of the Fourth Amendment.").                                       At

issue in the present case is whether the deputy acted reasonably

in instructing hospital personnel to draw Howes' blood when he

did not have a warrant.              Accordingly, we must determine whether

the deputy's warrantless search of Howes was permissible under

the Fourth Amendment and Article I, Section 11.

       ¶21   "The       Fourth       Amendment               to     the        United       States

Constitution        and    Article       I,     Section            11    of     the     Wisconsin

Constitution protect the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures."             Id., ¶29 (quoting Robinson, 359 Wis. 2d

421,     ¶24).       "The     touchstone           of    the        Fourth          Amendment   is

reasonableness."           Id. (internal quotation marks omitted).                               As

such,    "[t]he     Fourth    Amendment         does         not    proscribe         all   state-

initiated       searches     and    seizures;           it    merely      proscribes         those
which     are     unreasonable."              Id.       (internal             quotation      marks

omitted).         "An      action       is     'reasonable'             under        the    Fourth

Amendment, regardless of the individual officer's state of mind,

'as long as the circumstances, viewed objectively, justify [the]

action.'"        Brigham     City,      Utah       v.   Stuart,         547     U.S.    398,    404

(2006)    (quoting        Scott    v.    United         States,         436    U.S.     128,    138

(1978)).

       ¶22   Absent from the text of the Fourth Amendment is the
obligation that the government must obtain a warrant to conduct
                                               9
                                                                    No.    2014AP1870-CR



a     search.     However,       it    is    axiomatic    that      "warrants        must

generally be obtained."             Missouri v. McNeely, 133 S. Ct. 1552,

1569 (2013) (Roberts, C.J., concurring in part and dissenting in

part).       Consistent      with      these     principles,     "[a]      warrantless

search is presumptively unreasonable."                   Tullberg, 359 Wis. 2d

421, ¶30.

       ¶23   To   overcome    this        presumption,    a     warrantless       search

must fall under an exception to the warrant requirement.                              See

State v. Foster, 2014 WI 131, ¶32, 360 Wis. 2d 12, 856 N.W.2d

847     ("Consistent      with      the     United     States     Supreme         Court's

interpretation of the Fourth Amendment, we have adhered to the

basic     principle       that        warrantless      searches       are     per     se

unreasonable unless they fall within a well-recognized exception

to the warrant requirement.").                   "One exception to the warrant

requirement is the exigent circumstances doctrine, which holds

that a warrantless search complies with the Fourth Amendment if

the need for a search is urgent and insufficient time to obtain

a warrant exists."        Tullberg, 359 Wis. 2d 421, ¶30.
       ¶24   "There are four well-recognized categories of exigent

circumstances . . . 1) hot pursuit of a suspect, 2) a threat to

the safety of a suspect or others, 3) a risk that evidence will

be destroyed, and 4) a likelihood that the suspect will flee."

Richter, 235 Wis. 2d 524, ¶29.                 The burden is on the government

to    establish    that    its    actions        fit   into   one     of    the    well-

recognized exceptions.           State v. Phillips, 2009 WI App 179, ¶7,

322 Wis. 2d 576, 778 N.W.2d 157.                 And, "the test for determining


                                            10
                                                   No.     2014AP1870-CR



the existence of exigent circumstances is an objective one."

Robinson, 327 Wis. 2d 302, ¶30.

    ¶25   If    exigent   circumstances   are   present,     we    have

distilled four additional requirements that a warrantless blood

draw in a drunk driving case must satisfy to be reasonable under

the Fourth Amendment:

    (1) the blood draw is taken to obtain evidence of
    intoxication from a person lawfully arrested for a
    drunk-driving related violation or crime, (2) there is
    a clear indication that the blood draw will produce
    evidence of intoxication, (3) the method used to take
    the blood sample is a reasonable one and performed in
    a reasonable manner, and (4) the arrestee presents no
    reasonable objection to the blood draw.
State v. Kennedy, 2014 WI 132, ¶17, 359 Wis. 2d 454, 856 N.W.2d

834 (quoting State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d

399 (1993) abrogated in part by Missouri v. McNeely, 133 S. Ct.

1552 (2013)).   We have "explained that probable cause to arrest

for a drunk-driving related violation or crime 'substitutes for

the predicate act of lawful arrest' under the first factor."

Id. (quoting Bohling, 173 Wis. 2d at 534 n.1).           "The second

factor, whether there is a clear indication that the blood draw

will produce evidence of intoxication,      in this case is also

satisfied by the same facts that support a finding of probable

cause to arrest."   Id. (internal quotation marks omitted).

    ¶26   In the present case, there is no dispute as to the

presence of the third and fourth factors.       The blood was drawn

in a reasonable manner; it was taken in a hospital by a person
authorized to draw blood.     See State v. Krajewski, 2002 WI 97,


                                  11
                                                             No.   2014AP1870-CR



¶47, 255 Wis. 2d 98, 648 N.W.2d 385 ("Krajewski and the State

stipulated that the blood draw was taken in a hospital by a

registered   nurse.     Thus,   the    blood    draw   was    effected    in   a

reasonable manner.").        Similarly, with respect to the fourth

factor, the suspect did not present a reasonable objection to

the type of search the deputy sought to conduct, a blood draw.8

Accordingly,   we     must   examine       whether   the     deputy   lawfully

    8
       An analysis under the fourth factor does not require us to
determine whether an individual consented to a search; instead,
it refers to an objection to the type of search the officer
chose to conduct (e.g., a blood draw as opposed to a
breathalyzer).   See State v. Krajewski, 2002 WI 97, ¶48, 255
Wis. 2d 98, 648 N.W.2d 385. As this Court in State v. Kennedy,
2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834 recognized, the
fourth factor is derived from the Supreme Court's decision in
Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the
Supreme Court explained that an analysis under the fourth factor
is reserved for those instances in which an individual has
raised a legitimate and significant objection to having his or
her blood drawn. The Court concluded that the defendant in that
case did not raise a reasonable objection to the blood draw
because the defendant was "not one of the few who on grounds of
fear, concern for health, or religious scruple might prefer some
other means of testing, such as the 'Breathalyzer' test
petitioner refused."    Schmerber, 384 U.S. at 771.     See also
State v. Krause, 168 Wis. 2d 578, 588, 484 N.W.2d 347 (Ct. App.
1992) ("Krause asserts, however, that his refusal still is
constitutionally protected because he told Officer Dornfeld that
he 'didn't believe in needles' and 'd[id]n't want AIDS.'     This
argument fails.   These isolated comments do not establish that
Krause is 'one of the few who on grounds of fear, concern for
health, or religious scruple might prefer some other means of
testing'   whose   wishes  the   Schmerber   Court  declined   to
address.").    Consequently, the fourth factor speaks to the
reasonableness of the type of search employed, not whether a
warrant was required to conduct the search.      As such, to say
that Howes made no objection to the type of search is not to say
that Howes impliedly consented to being searched. Each inquiry
is analytically distinct.


                                      12
                                                                           No.       2014AP1870-CR



arrested Howes based on probable cause that Howes had driven

with a prohibited alcohol concentration, i.e., 0.02 percent or

higher.       Next, we must determine whether exigent circumstances

existed such that the deputy was justified in proceeding without

a warrant.

                             C.   Probable Cause to Arrest

       ¶27     With    respect      to     the    probable         cause     analysis,         the

deputy in this case arrested Howes; therefore, the dispositive

inquiry is whether the deputy had probable cause to conduct this

arrest.        We     conclude     that    the     deputy     had    probable          cause   to

arrest       Howes    for     operation     of     a    vehicle      with        a   prohibited

alcohol concentration under the facts as found by the circuit

court.

       ¶28     "Warrantless        arrests       are    unlawful        unless         they    are

supported by probable cause."                    State v. Blatterman, 2015 WI 46,

¶34, 362 Wis. 2d 138, 864 N.W.2d 26.                        "Probable cause to arrest

... refers to that quantum of evidence within the arresting

officer's knowledge at the time of the arrest that would lead a
reasonable law enforcement officer to believe that the defendant

was    operating        a     motor      vehicle       [at     a    prohibited           alcohol

concentration]."             Id. (quoting State v. Lange, 2009 WI 49, ¶19,

317 Wis. 2d 383, 766 N.W.2d 551).                      "The burden is on the state

to    show    [it]     had    probable     cause       to    arrest."        Id.       (internal

quotation marks omitted).                 And, "[w]e evaluate the existence of

probable       cause         objectively,         concerned         with         whether       law

enforcement acted reasonably."                   Robinson, 327 Wis. 2d 302, ¶26.


                                             13
                                                                        No.     2014AP1870-CR



    ¶29     We   look    at     the      "totality        of    the    circumstances         to

determine whether probable cause . . . existed."                              Tullberg, 359

Wis. 2d 421, ¶33.        "In dealing with probable cause, . . . as the

very name implies, we deal with probabilities.                            These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act."        Illinois v. Gates, 462 U.S. 213, 231 (1983)

(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

"This standard is case-specific:                    '[t]he quantum of information

which constitutes probable cause to arrest must be measured by

the facts of the particular case.'"                        Blatterman, 362 Wis. 2d

138, ¶35 (quoting State v. Paszek, 50 Wis. 2d 619, 625, 184

N.W.2d 836 (1971)).

    ¶30     A number of factors may be relevant to a determination

of probable cause in the context of an arrest for a drunk-

driving    related      offense.          As       we    have   previously        detailed,

"factors sufficient to support a finding of probable cause have

included bloodshot eyes, an odor of intoxicants, and slurred
speech,    together      with      a    motor       vehicle     accident        or    erratic

driving."    Kennedy, 359 Wis. 2d 454, ¶22.

    ¶31     Additionally,          "[p]olice        may    properly      consider         prior

convictions in a probable cause determination."                         Blatterman, 362

Wis. 2d 138, ¶36; see also State v. Goss, 2011 WI 104, ¶24, 338

Wis. 2d 72, 806 N.W.2d 918.                   "Prior convictions are especially

relevant    in   this    case      because         the    statute      reduced       the   PAC

threshold   applicable        to       [the   defendant]        from    0.08%        to   0.02%
alcohol concentration."            Blatterman, 362 Wis. 2d 138, ¶36.
                                              14
                                                                            No.     2014AP1870-CR



       ¶32     In    this       case,     the       deputy     checked        Howes'      driving

record,      which        indicated      that       Howes    had      three      prior    OWI/PAC

convictions.         This lowered Howes' PAC threshold to 0.02 percent.

The     circuit      court       properly        found       this       highly    relevant     in

determining that the deputy had probable cause to arrest Howes.

       ¶33     Moreover,         three    people       told     the      deputy     that    Howes

smelled of intoxicants:                  (1) an individual at the scene of the

accident; (2) one of the EMTs who rode in the ambulance with

Howes; and (3) a nurse at the hospital.                         Taken together with the

vehicle accident, these facts were sufficient to provide the

deputy    with       probable         cause    to     arrest    Howes      for     operating    a

vehicle with a prohibited alcohol concentration.

       ¶34     We note that probable cause in this case developed

over a period of time.                   At the accident scene, one bystander

mentioned that Howes may have smelled of intoxicants.                                    While on

his way to the hospital, the deputy learned that Howes' PAC

threshold had been lowered to 0.02 percent because of his prior

convictions for OWI/PAC.                      Then, at the hospital, the deputy
spoke with EMT personnel, one of whom said that Howes smelled of

intoxicants and later he spoke with a nurse who also said that

Howes    smelled          of    intoxicants.            At     that      point,    the     deputy

reasonably believed that he had probable cause to conclude that

Howes    had    operated         his     motorcycle         with    a    prohibited       alcohol

concentration         of       0.02    percent.         He    then      placed     Howes    under

arrest.      We agree that the deputy had probable cause to believe

that    Howes       had    violated       Wis.      Stat.    § 346.63(1)(b)          under    the
provisions of Wis. Stat. § 340.01(46m)(c).
                                                 15
                                                                                  No.       2014AP1870-CR



                                  D.     Exigent Circumstances

         ¶35       We next examine whether the warrantless blood draw was

justified           by        exigent        circumstances.               To     determine          if    a

warrantless              blood        draw     was      permissible            under       the      Fourth

Amendment, we look at the totality of the circumstances and

engage        in     a     "careful          case-by-case       assessment            of        exigency."

McNeely, 133 S. Ct. at 1561.

         ¶36       "Like our analysis of probable cause, the test for

determining              the     existence         of      exigent       circumstances             is    an

objective           one."          Tullberg,          359    Wis. 2d           421,       ¶41    (quoting

Robinson, 327 Wis. 2d 302, ¶30).                             It follows that we give no

weight to the subjective belief of an officer.9                                             See United

States         v.    Richardson,             208     F.3d    626,        629     (7th       Cir.     2000)

(reasoning "a police officer's subjective belief that exigent

circumstances              exist       is     insufficient          to     make       a     warrantless

search.         Instead, as is normally the case for Fourth Amendment

inquiries,           the       test    is    objective . . . .").                 Accordingly,            we

independently examine the facts known to the officer at the time
of the warrantless search.

         ¶37       An officer is justified in conducting a warrantless

search to prevent the destruction of evidence.                                    And, "[e]vidence

of   a       crime       is    destroyed       as     alcohol       is    eliminated             from    the

bloodstream of a drunken driver."                             Tullberg, 359 Wis. 2d 421,

¶42.         While the natural dissipation of alcohol is not, under all

         9
       Accordingly, the deputy's testimony that he had time to
obtain a warrant in this case is irrelevant to our analysis.


                                                      16
                                                                           No.     2014AP1870-CR



circumstances, an exigent circumstance sufficient to allow an

officer     to     conduct         a     warrantless         blood      draw,      there       are

situations       in   which     the      totality       of     the   circumstances         would

justify such a search.                  "[A] warrantless blood draw [need not]

always     require      a    'now       or     never'    situation         in    order    to    be

justified        by     exigent           circumstances.                 Rather,         exigent

circumstances justify a warrantless blood draw if delaying the

blood draw would            'significantly undermin[e] [its] efficacy.'"

Id., ¶50 (quoting McNeely, 133 S. Ct. at 1561); cf. State v.

Parisi, 2016 WI 10, ¶40, 367 Wis. 2d 1, 875 N.W.2d 619 ("Under

the circumstances, Officer Fenhouse might reasonably have feared

that if he attempted to obtain a warrant before drawing Parisi's

blood,     Parisi's     condition            could    again     lapse,     causing       Officer

Fenhouse to miss his window of opportunity.").

      ¶38    The       United          States        Supreme     Court's         decision       in

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

circumstance in which a warrantless blood draw in the context of

a    drunk-driving          offense       is    reasonable.           In        Schmerber,      an
individual was "arrested at a hospital while receiving treatment

for injuries suffered in an accident involving the automobile

that he had apparently been driving."                            Id. at 758.             Without

obtaining a warrant, the officer instructed a physician at the

hospital to draw the defendant's blood.                              Id.        "The chemical

analysis of this sample revealed a percent by weight of alcohol

in   his    blood      at    the       time     of    the     offense      which     indicated

intoxication, and the report of this analysis was admitted in
evidence at the trial."                 Id. at 759.          The defendant objected to
                                                 17
                                                                         No.     2014AP1870-CR



the admission of the report and contended, in part, that these

results "should be excluded from evidence as the product of an

unlawful       search       and    seizure     in    violation      of     the   Fourth     and

Fourteenth Amendments."               Id. at 766.

    ¶39        The        United     States         Supreme      Court      rejected        the

defendant's          contention      that     the      warrantless       blood     draw     was

unreasonable          and     concluded       that       the    officer's        search    was

justified by exigent circumstances.                       Id. at 770.        The Court, in

part, premised its decision on the defendant's injuries that had

delayed the officer's ability to secure a blood draw from the

defendant.       Specifically, the Court reasoned:

    We are told that the percentage of alcohol in the
    blood begins to diminish shortly after drinking stops,
    as the body functions to eliminate it from the system.
    Particularly in a case such as this, where time had to
    be taken to bring the accused to a hospital and to
    investigate the scene of the accident, there was no
    time to seek out a magistrate and secure a warrant.
    Given these special facts, we conclude that the
    attempt to secure evidence of blood-alcohol content in
    this case was an appropriate incident to petitioner's
    arrest.
Id. at 770-71.              Consequently, the Court surmised that "[t]he

officer    .     .    .     might    reasonably          have   believed       that   he    was

confronted with an emergency, in which the delay necessary to

obtain     a    warrant,          under    the      circumstances,         threatened       the

destruction          of     evidence."           Id.      (internal      quotation        marks

omitted).

    ¶40        Following          Schmerber,       the    Supreme     Court      in   McNeely

reaffirmed the principle that dissipation of alcohol from the
blood    stream       may     lead    to     the    destruction       of    evidence,      and

                                               18
                                                                    No.     2014AP1870-CR



therefore         constitute     an     exigent      circumstance      sufficient      to

justify a warrantless blood draw.                    McNeely, 133 S. Ct. at 1560

(reasoning, "our analysis in Schmerber fits comfortably within

our case law applying the exigent circumstances exception.").

The   Court       clarified    that     its    decision    in    Schmerber     was    not

predicated solely on the natural dissipation of alcohol from the

bloodstream; rather, there were "special facts" that made the

blood      draw     reasonable        under    the    totality    of      circumstances

present in Schmerber.            Id.     These "special facts" were that the

defendant was injured and in the hospital, and that the officer

had   to    investigate        the     scene   of    the   accident.         The    Court

reasoned,

      Regardless of the exact elimination rate, it is
      sufficient for our purposes to note that because an
      individual's alcohol level gradually declines soon
      after he stops drinking, a significant delay in
      testing will negatively affect the probative value of
      the results.   This fact was essential to our holding
      in Schmerber, as we recognized that, under the
      circumstances, further delay in order to secure a
      warrant after the time spent investigating the scene
      of the accident and transporting the injured suspect
      to the hospital to receive treatment would have
      threatened the destruction of evidence.
Id. at 1560-61.          These facts made the officer's need to draw

blood more urgent and, given this urgency, the officer's actions

were justified under the exigent circumstances doctrine.                           Id. at

1560 ("We added that '[p]articularly in a case such as this,

where time had to be taken to bring the accused to a hospital

and to investigate the scene of the accident, there was no time




                                              19
                                                                            No.      2014AP1870-CR



to   seek    out      a    magistrate       and     secure       a     warrant.'"        (quoting

Schmerber, 384 U.S. at 770-71).

       ¶41    Moreover, we note that our decision is consistent with

the Supreme Court's narrow holding in McNeely that dissipation

of alcohol from the bloodstream, standing alone, does not always

constitute       an       exigent    circumstance.               The      Supreme       Court   in

McNeely did not simultaneously create that which it sought to

eradicate.         Stated otherwise, McNeely did not create a per se

rule    that     a    warrantless           blood    draw        based     on     the      natural

dissipation          of     alcohol     from        the        blood      stream      is    never

reasonable.          Id. at 1568 ("The relevant factors in determining

whether      a   warrantless          search        is    reasonable,           including       the

practical problems of obtaining a warrant within a timeframe

that    still        preserves        the     opportunity            to    obtain       reliable

evidence, will no doubt vary depending upon the circumstances in

the case.").

       ¶42    Instead, the Court in McNeely validated the foundation

of   its     decision       in      Schmerber;       specifically,           dissipation        of
alcohol      from         the    bloodstream             may     justify        an      officer's

warrantless blood draw.               The Court in McNeely went so far as to

recognize that delay in obtaining a warrant, even without the

presence of extraneous factors, may justify a warrantless blood

draw.        The      Court      stated,      "an        individual's        alcohol         level

gradually declines soon after he stops drinking, a significant

delay in testing will negatively affect the probative value of

the results."             Id. at 1561; see also id. at 1568 ("No doubt,
given the large number of arrests for this offense in different
                                               20
                                                                No.     2014AP1870-CR



jurisdictions    nationwide,   cases      will     arise       when     anticipated

delays in obtaining a warrant will justify a blood test without

judicial    authorization,   for    in    every    case    the        law    must   be

concerned that evidence is being destroyed.").

      ¶43   As is evident from the Court's analysis in Schmerber

and   McNeely,   certain   facts    are   particularly          relevant       to   an

exigent circumstances analysis in drunk-driving cases.                        Whether

an officer was delayed in obtaining a blood draw due to the

defendant's medical condition is one such fact.                       Additionally,

whether the officer was delayed because time had to be taken to

investigate the scene of the accident is also highly relevant.

See Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

("On the specific facts of [Schmerber], where time had already

been lost taking the driver to the hospital and investigating

the accident, the Court found no Fourth Amendment violation even

though the warrantless blood draw took place over the driver's

objection.").

      ¶44   The Minnesota Supreme Court, relying on these factors,
concluded that exigent circumstances justified a search under

circumstances similar to that of Schmerber.                    See Minnesota v.

Stavish, 868 N.W.2d 670, 676-77 (Minn. 2015).                   In Stavish, the

Minnesota Supreme Court concluded that, under the totality of

circumstances,    a   warrantless    blood        draw    of    a      hospitalized

individual was justified by exigent circumstances.                          The Court

reasoned, "Stavish's medical condition and need for treatment

rendered his future availability for a blood draw uncertain.
[The officer] did not know how long Stavish was likely to remain
                                     21
                                                                      No.        2014AP1870-CR



at   the    same      hospital     or    whether     further     medical         care     would

preclude obtaining a sample even if Stavish stayed at the same

hospital."         Id.    at     678.      As    a   result,    "it   was        objectively

reasonable for [the officer] to conclude that he was faced with

an emergency in which the delay necessary to obtain a warrant

threatened the destruction of evidence."                   Id.

      ¶45    The circumstances of a critically injured driver who

needed     immediate      medical       care     that   justified     the        warrantless

blood draw in Schmerber and Stavish are present in the case at

hand.      And in addition, Howes' prohibited alcohol concentration

threshold of 0.02 percent increased the need for a prompt blood

draw.      Dissipation or dilution of alcohol in his bloodstream due

to the passage of time and medical treatments threatened the

State's ability to prove the crime for which he was arrested.

This is so because "[a]lcohol dissipates from the bloodstream at

a rate of 0.01 percent to 0.025 percent per hour."                           McNeely, 133

S. Ct.      at   1570-71       (Roberts,        C.J.,    concurring         in     part     and

dissenting       in      part)    (citing        Richard   Stripp,          Forensic        and
Clinical     Issues       in     Alcohol    Analysis,      in    Forensic          Chemistry

Handbook     440      (Lawrence         Kobilinsky      ed.,    2012)).            If     Howes

violated his restricted PAC with a blood alcohol concentration

of 0.02 percent, it would take approximately an hour for Howes'

blood alcohol level to go to 0.00 percent.                       This is roughly the

amount of time that elapsed between Howes' accident and the time

in which the deputy first had probable cause necessary to obtain

a warrant.         As each minute passed, the likelihood that Howes'
blood alcohol level would diminish to 0.00 percent increased
                                                22
                                                            No.    2014AP1870-CR



significantly.      At   0.00    percent,     it   would   be   impossible    to

calculate what his blood alcohol level was at the time of the

accident.

     ¶46    In addition, similar to the officer in Schmerber, the

deputy's     responsibilities     at    the   accident     scene   led   to   a

significant delay in the ability of the deputy to obtain a blood

draw.     For example, he was required to secure evidence relating

to the accident and ensure the safety of those traveling on

roads through the scene of the accident.              The investigation of

the accident took time.         During this time, reliable evidence of

Howes' blood alcohol concentration was being destroyed by the

passage of time and treatment at the hospital.10

     ¶47    Furthermore, akin to the defendant in Schmerber, Howes

was in critical condition.             The severity of Howes' condition

made the deputy's ability to obtain a blood draw in the future

uncertain.     This uncertainty was exacerbated because at least

one hour already had passed since the accident and the deputy

had no knowledge about the time at which Howes stopped drinking.
     ¶48    Howes was unconscious, and it was unknown whether he

had suffered brain damage.         Importantly, a physician indicated




     10
        Howes was in critical condition that required additional
testing, intubation to support his respiration.      He had been
given medication resulting in "heavy sedation," and because he
was   unconscious,  he   must  have   received  this   medication
intravenously.


                                       23
                                                                     No.   2014AP1870-CR



that Howes would need a CT scan.11                 The deputy could reasonably

have concluded that waiting for a CT scan before obtaining a

blood draw would "significantly undermin[e] the efficacy" of the

blood analysis to prove Howes violated his PAC threshold of 0.02

percent.        See   Tullberg,     359    Wis. 2d      421,    ¶50    n.26   (quoting

McNeely, 133 S. Ct. at 1561).

       ¶49     Additionally, as we have explained, the deputy did not

have probable cause to arrest Howes until he arrived at the

hospital, talked with EMTs and talked with the nurse who told

him that she also smelled alcohol.                     Accordingly, the present

case is not one in which the officer could have obtained a

warrant on the way to the hospital because he did not have

probable cause to obtain a warrant then.                  Applying for a warrant

after his conversations with Howes' care-givers would have led

to additional delay and the further dissipation of alcohol from

Howes' bloodstream.           See id., 359 Wis. 2d 421, ¶48 n.25 ("We

note    that    Deputy   Hoffman    could        not   have    had    other   officers

assist him in obtaining a warrant while he investigated the
accident       because   he   did    not        have   probable       cause   to   have

Tullberg's blood drawn until immediately before it was drawn.").

       ¶50     Accordingly, we conclude that the warrantless blood

draw from Howes was permissible under the Fourth Amendment of


       11
       The deputy asked hospital staff to conduct a blood draw,
but they were unable to draw Howes' blood until roughly an hour
after the deputy's request.    This passage of time is further
evidence that the deputy needed to request a blood draw
immediately.


                                           24
                                                                          No.     2014AP1870-CR



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

Wisconsin          Constitution         because          under      the         totality    of

circumstances         the       exigent       circumstance         of     destruction       of

evidence existed.

                                      III.    CONCLUSION

    ¶51       We     conclude          that       the     circuit       court       correctly

determined that the deputy had probable cause to arrest Howes

for operating a vehicle with a PAC, and that Howes was arrested

prior    to   obtaining         a   blood     sample.        Moreover,       based    on   the

totality      of     circumstances           herein,       the    deputy's        warrantless

search was permissible under the Fourth Amendment of the United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution         under      the    exigent          circumstances      doctrine        that

relates to the risk of destruction of evidence.                                  Stated more

fully,    under      the    totality         of    circumstances        presented     herein,

which included a seriously injured, unconscious person, who was

being subjected to medical treatments for his injuries and who

had 0.02 percent as his PAC threshold, a reasonable officer
could have concluded that further delay in drawing Howes' blood

would    have      led     to   the    destruction          of    evidence       through   the

dissipation        and     dilution      of       alcohol    in    Howes'        bloodstream.

Therefore, we reverse the order of the circuit court and remand

for further proceedings.

    By the Court.—The order of the circuit court is reversed

and the cause is remanded for further proceedings consistent

with this opinion.


                                                  25
                                                                No.   2014AP1870-CR.mjg




       ¶52      MICHAEL      J.   GABLEMAN,       J.      (concurring        in    the

judgment).        I agree that the blood draw here was a permissible

warrantless search under the Fourth Amendment, and I concur in

the mandate of the court.              However, rather than addressing this

case       as   one   of    exigent    circumstances,      I    would    decide    the

question        certified    to   us   by   the   court    of    appeals:     whether

provisions       in   Wisconsin's      implied    consent       law   authorizing    a

warrantless blood draw from an unconscious driver based on the

driver's implied consent are unconstitutional under the Fourth

Amendment to the United States Constitution.

       ¶53      Wisconsin's implied consent law, Wis. Stat. § 343.305,

provides notice to all drivers that when they operate a motor

vehicle in this state, they are deemed to have consented to

blood, breath, or urine testing for the presence of alcohol or

controlled substances, § 343.305(2),1 if and when such testing is


       1
           Wis. Stat. § 343.305(2) provides, in full:

       IMPLIED CONSENT. Any person who is on duty time with
       respect to a commercial motor vehicle or drives or
       operates a motor vehicle upon the public highways of
       this state, or in those areas enumerated in s. 346.61,
       is deemed to have given consent to one or more tests
       of his or her breath, blood or urine, for the purpose
       of determining the presence or quantity in his or her
       blood or breath, of alcohol, controlled substances,
       controlled substance analogs or other drugs, or any
       combination    of  alcohol,    controlled  substances,
       controlled substance analogs and other drugs, when
       requested to do so by a law enforcement officer under
       sub. (3)(a) or (am) or when required to do so under
       sub. (3)(ar) or (b).        Any such tests shall be
       administered upon the request of a law enforcement
       officer.    The law enforcement agency by which the
                                                       (continued)
                                  1
                                                            No.   2014AP1870-CR.mjg


required       by      a    law   enforcement       officer       under   certain

circumstances, including when the driver is arrested for one of

certain enumerated intoxicated-driving offenses, § 343.305(3).2

It   further     provides      that   a   driver    "who   is     unconscious   or

otherwise not capable of withdrawing consent is presumed not to

have       withdrawn       consent"   and    a     test    may     therefore    be

administered.       See § 343.305(3)(ar)-(b).3

       officer is employed shall be prepared to administer,
       either at its agency or any other agency or facility,
       2 of the 3 tests under sub. (3)(a), (am), or (ar), and
       may designate which of the tests shall be administered
       first.
       2
           Wis. Stat. § 343.305(3)(a) provides, in relevant part:

       Upon arrest of a person for violation of s. 346.63(1),
       (2m) or (5) or a local ordinance in conformity
       therewith, or for a violation of s. 346.63(2) or (6)
       or 940.25, or s. 940.09 where the offense involved the
       use of a vehicle, or upon 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).

Subsection (3)(am) includes similar provisions that apply when
the "officer detects any presence of alcohol . . . on a person
driving or operating or on duty time with respect to a
commercial motor vehicle or has reason to believe the person is
violating or has violated s. 346.63(7)."
       3
      Wis. Stat. § 343.305(3)(ar)1. applies if "a person is the
operator of a vehicle that is involved in an accident that
causes substantial bodily harm, as defined in s. 939.22(38), to
any person, and a law enforcement officer detects any presence
of alcohol, a controlled substance, a controlled substance
analog or other drug, or a combination thereof."      Subsection
(3)(ar)2. applies 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."   Both provisions provide that a "person who is
                                                     (continued)
                                2
                                                          No.   2014AP1870-CR.mjg


       ¶54     In this case, a warrantless blood draw was taken from

the defendant, David W. Howes, while he was unconscious.                  Howes

had been involved in a motorcycle accident with a deer, and he

was found injured, unconscious, and smelling of alcohol.                  Howes

was still unconscious when a sheriff's deputy later arrested him

at the hospital on suspicion of drunk driving.                  Following the

procedures set forth in the implied consent law, the deputy

asked the hospital to take a blood sample from Howes,4 and the

test       results   revealed   the   presence   of   a   prohibited    alcohol

concentration.        Howes was charged with operating a motor vehicle

while intoxicated, in violation of Wis. Stat. § 346.63(1)(a),

unconscious or otherwise not capable of withdrawing consent is
presumed not to have withdrawn consent under this subdivision
and one or more samples specified in par. (a) or (am) may be
administered to the person." Wis. Stat. § 343.305(3)(ar)1.-2.

       Additionally, Wis. Stat. § 343.305(3)(b) provides, in full:

       A person who is unconscious or otherwise not capable
       of withdrawing consent is presumed not to have
       withdrawn consent under this subsection, and if a law
       enforcement officer has probable cause to believe that
       the person has violated s. 346.63(1), (2m) or (5) or a
       local   ordinance    in   conformity    therewith,   or
       s. 346.63(2) or (6) or 940.25, or s. 940.09 where the
       offense involved the use of a vehicle, or detects any
       presence of alcohol, controlled substance, controlled
       substance analog or other drug, or a combination
       thereof, on a person driving or operating or on duty
       time with respect to a commercial motor vehicle or has
       reason   to    believe   the   person    has   violated
       s. 346.63(7), one or more samples specified in
       par. (a) or (am) may be administered to the person.
       4
       This situation was governed by Wis. Stat. § 343.305(3)(b),
because the deputy had probable cause to believe Howes was
guilty of operating a motor vehicle with a prohibited alcohol
concentration, in violation of Wis. Stat. § 346.63(1)(b).


                                        3
                                                                No.   2014AP1870-CR.mjg


and     operating       a   motor    vehicle     with     a    prohibited     alcohol

concentration, in violation of § 346.63(1)(b).

      ¶55       The circuit court suppressed the test results, ruling

that subsections (3)(ar) and (3)(b) of the implied consent law

are facially unconstitutional under the Fourth Amendment to the

extent they authorize warrantless testing of unconscious drivers

in the absence of exigent circumstances.5                       The circuit court

rejected        the    argument   that   Howes     consented,     concluding       that

"[t]here can be no consent in the constitutional sense where

somebody is unconscious and incapable of giving consent."                           The

State appealed, and the court of appeals certified the case to

this court pursuant to Wis. Stat. § (Rule) 809.61.

      ¶56       On appeal, Howes takes the position that the circuit

court     was    correct    to    find   the   unconscious-driver         provisions

facially        unconstitutional.6         Howes     argues      that,    absent     an

established           exception     to   the     Fourth       Amendment's     warrant

requirement, officers must obtain a warrant before ordering a

      5
       I will refer to these provisions collectively as                             the
"unconscious-driver provisions" of the implied consent law.
      6
       This case also presents an as-applied challenge to the
statute, but Howes does not develop any distinct argument to
support his as-applied challenge.     Rather, he states that his
challenge is "as-applied only insofar as his Fourth Amendment
rights were personally violated by the State's conduct under the
general auspices of the provisions in question when the blood
draw was performed." Howes "does not believe that any variation
in   the   circumstances   (except    for   the   crucial  one——
incapacitation, which brings him within the purview of the
provision in the first place) would materially affect the
analysis."   Therefore, if the unconscious-driver provisions can
be constitutionally applied, Howes does not dispute that they
were constitutionally applied to him.


                                           4
                                                                           No.      2014AP1870-CR.mjg


blood   test       of     a    driver    who    is       unconscious         or     otherwise     not

capable of withdrawing consent.                          Howes further argues that the

statutory      provisions          authorizing           blood      tests      of    such   drivers

based on their implied consent create an unreasonable per se

exception to the warrant requirement.

       ¶57    I     conclude       that       Howes       has    not     met      his    burden    of

proving beyond a reasonable doubt that the unconscious-driver

provisions         of    the     implied       consent        law    are     unconstitutional.

Voluntary consent to testing may be implied from the conduct of

driving with notice of the conditions of Wisconsin's implied

consent law, and such consent continues unless it is revoked.

Therefore, I conclude that the circuit court erred in striking

down the statute as facially unconstitutional and in suppressing

the results of the blood test.

       ¶58    I begin with the applicable standard of review and

with    a    general          overview    of    Wisconsin's            implied       consent     law,

focusing      on    the       challenged       unconscious-driver                 provisions.       I

then    apply       the       principles       of       the     Fourth      Amendment       to    the
unconscious-driver provisions in light of Howes' argument that

they are facially unconstitutional.

                                  I.     STANDARD OF REVIEW

       ¶59    Whether a statute is constitutional is a question of

law that this court reviews de novo.                                Dane Cty. DHS v. P.P.,

2005 WI 32, ¶14, 279 Wis. 2d 169, 694 N.W.2d 344.                                     Statutes are

presumed to be constitutional.                          Aicher ex rel. LaBarge v. Wis.

Patients      Comp.       Fund,        2000    WI       98,   ¶18,     237     Wis. 2d 99,        613
N.W.2d 849.             "The court indulges every presumption to sustain

                                                    5
                                                              No.      2014AP1870-CR.mjg


the law if at all possible, and if any doubt exists about a

statute's constitutionality, we must resolve that doubt in favor

of constitutionality."            Id.    The burden is on the challenger to

"prove that the statute is unconstitutional beyond a reasonable

doubt."    State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665

N.W.2d 328.     Here, because Howes presents his argument as a

facial    challenge    to     the       unconscious-driver        provisions,       the

burden is on him to prove beyond a reasonable doubt that the

statute     "cannot     be        constitutionally         enforced       under     any

circumstances."       See Society Ins. v. LIRC, 2010 WI 68, ¶26, 326

Wis. 2d 444, 786 N.W.2d 385 (citing State v. Wood, 2010 WI 17,

¶13, 323 Wis. 2d 321, 780 N.W.2d 63).

          II.   OVERVIEW OF WISCONSIN'S IMPLIED CONSENT LAW

    ¶60     Wisconsin's implied consent law was first enacted in

1969 and is codified at Wis. Stat. § 343.305.                           "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)).                  Like every one of our

forty-nine sister states, Wisconsin has chosen to combat the

problem of drunken and impaired driving by enacting an implied

consent law, such that consenting to testing has long been "a

condition of the privilege of operating a motor vehicle upon

state    highways."      State      v.    Zielke,    137    Wis. 2d 39,       48,    403

N.W.2d 427 (1987).



                                           6
                                                                           No.    2014AP1870-CR.mjg


       ¶61        The    implied       consent       law       provides    that      a   driver      is

deemed to have consented, in certain circumstances, to testing

of    his    or        her    blood,    breath,          or    urine    for    the    presence       of

alcohol           or     other         controlled             substances.             Wis.        Stat.

§ 343.305(2).                Specifically, it provides that anyone who "drives

or operates a motor vehicle upon the public highways of this

state" is "deemed" to have consented to testing when required by

a    law    enforcement           officer       under         the     specific       circumstances

enumerated in the statute.                    Id.

       ¶62        Although the statute acknowledges that a person may

withdraw consent and refuse to submit to testing, a driver has

no    statutory              or   constitutional               right     to      refuse      without

consequences.                See State v. Crandall, 133 Wis. 2d 251, 255-56,

394    N.W.2d 905             (1986).         Nor    does       the     statute      provide       that

officers must ask drivers whether they want to refuse testing.

"This statutory scheme does not contemplate a choice, but rather

establishes that a defendant will suffer the consequences of

revocation should he refuse to submit to the test after having
given       his    implied        consent       to       do    so."       Milwaukee          Cty.    v.

Proegler, 95 Wis. 2d 614, 624, 291 N.W.2d 608 (Ct. App. 1980).

       ¶63        The    occasions       on    which          drivers    are     deemed      to   have

consented         to     testing       are    limited         to    particular       circumstances

where the legislature has decided that such testing is necessary

to combat intoxicated driving and to protect public safety.                                         See

Piddington, 241 Wis. 2d 754, ¶42 ("The implied consent law is

based upon the legitimate government interest of protecting the
public welfare, to wit, removing drunk drivers from the road."

                                                     7
                                                                       No.       2014AP1870-CR.mjg


(citing Proegler, 95 Wis. 2d at 631)).                          For example, a driver is

deemed to have consented to testing upon arrest, but only if the

offense      for    which    the       driver     is    arrested       is    one       of    certain

enumerated         intoxicated-driving                 offenses       under           Wis.     Stat.

§ 346.63 or certain other offenses involving injury or homicide

by     intoxicated          use        of   a         vehicle.           See          Wis.     Stat.

§ 343.305(3)(a).            If none of the statutory circumstances exist,

testing pursuant to the implied consent law is not permitted,

though officers may still procure evidence through "any other

lawful means."         § 343.305(3)(c).

                    III.    THE UNCONSCIOUS-DRIVER PROVISIONS

       ¶64    The     unconscious-driver                provisions          of        the    implied

consent law provide that, under certain circumstances, a driver

"who    is   unconscious          or    otherwise        not     capable         of    withdrawing

consent is presumed not to have withdrawn consent."                                         See Wis.

Stat.     § 343.305(3)(ar)-(b).                       Provided     the       other          relevant

statutory conditions are met, law enforcement may presume that

an unconscious driver consents to the tests that are set forth
in the statute, unless consent is revoked.                            The statute contains

no requirement that any driver, whether conscious or not, must

expressly consent to testing; consent is deemed to have been

given when the person voluntarily chose to drive on Wisconsin

highways.       See § 343.305(2).

       ¶65    Indeed, the informational statement that officers must

read to a driver before administering the test is a notice of

the consequences of refusal, not a "request" for consent.                                          See
Wis.    Stat.      § 343.305(4).            The       purpose    of    this       notice      is   to

                                                  8
                                                                         No.   2014AP1870-CR.mjg


advise drivers about the nature of their implied consent, not

necessarily        to    provide        a    meaningful          opportunity        to    decide

whether      to    withdraw        their      consent.             See     Piddington,         241

Wis. 2d 754,        ¶¶17,    20,    55      (holding        that    an     analysis       of   the

proper administration of the notice focuses on the objectively

reasonable conduct of the officer, not "[w]hether the accused

driver has actually comprehended the warnings").                                  "The entire

tenor   of    the       implied    consent            law   is . . . that        consent       has

already been given . . . ."                 Neitzel, 95 Wis. 2d at 203.

    ¶66      To summarize, the unconscious-driver provisions of the

implied consent law put every driver on notice that, in the

event he or she becomes unconscious and, for example, an officer

has probable cause to believe the driver is guilty of a drunk-

driving    offense,       the     driver's        previously        given      consent     would

remain unrevoked.           I turn now to the question of whether Howes

has met his burden to prove beyond a reasonable doubt that these

provisions are unconstitutional.

              IV.       APPLICABLE FOURTH AMENDMENT PRINCIPLES
    ¶67      The Fourth Amendment to the United States Constitution

guarantees        the   "right     of       the   people      to    be     secure    in    their

persons,     houses,        papers,         and       effects,     against       unreasonable

searches and seizures."                 U.S. Const. amend. IV.                    Courts will

presume that a search was unreasonable if the officers did not

have a warrant, but "[i]t is well established that a search is

reasonable when the subject consents."                        Birchfield v. N. Dakota,

136 S. Ct. 2160, 2185 (2016).                         Specifically in the context of
state implied consent laws, the Supreme Court has emphasized

                                                  9
                                                     No.   2014AP1870-CR.mjg


that "consent to a search need not be express but may be fairly

inferred from context."     Id.     This court has likewise recognized

that "[c]onsent to search need not be given verbally; it may be

in the form of words, gesture, or conduct."          State v. Phillips,

218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998).

               A.   Consent May Be Implied By Conduct

    ¶68    The principle of consent by conduct is neither new nor

infrequently applied.     In his treatise on the Fourth Amendment,

Professor Wayne LaFave provides a number of examples in which

"it is said that consent is 'implied' because it is found to

exist merely because of the person's conduct in engaging in a

certain   activity."    4   Wayne    R.   LaFave,   Search   and   Seizure

§ 8.2(l), at 162-63 (5th ed. 2012).        For example, "a warrantless

search of a person seeking to enter a military base may be

deemed reasonable based on the implied consent of the person

searched," Morgan v. United States, 323 F.3d 776, 778 (9th Cir.

2003), and consent "may be implied from [the] act of driving

past the guard shack and onto [the base] and imputed from the
posted notice indicating that entry onto [the base] constituted

consent to a search,"       State v. Torres, 262 P.3d 1006, 1022

(Haw. 2011).    Another analogous situation concerns a "business

owner in a highly regulated or licensed industry" who "in effect

consents to the restrictions put in place by the government."




                                    10
                                                                No.   2014AP1870-CR.mjg


United States v. Hamad, 809 F.3d 898, 905 (7th Cir. 2016).7

Similarly, some courts have justified airport screening searches

based on implied consent, reasoning that "[t]he signs in the

terminal gave [passengers] fair notice that if in the course of

the total screening process a physical inspection of [their]

hand luggage should be considered necessary . . . [they] could

be required to submit to it . . . ."                   United States v. DeAngelo,

584 F.2d 46, 47-48 (4th Cir. 1978); see State v. Hanson, 34 P.3d

1, 4-7 (Haw. 2001) (collecting cases).8

              B.   The Limits of Implying Consent By Conduct

      ¶69     Of course, there must be a limit to the scope of the

consent     that   may   be   implied    by       a     person's      conduct.       See

Birchfield, 136 S. Ct. at 2185.                   Consent "cannot be said to

exist     merely    because    a   person        (a)    knows   that       an   official

intrusion into his privacy is contemplated if he does a certain

thing, and then (b) proceeds to do that thing."                       LaFave, supra,

at   164-65    (emphasis      added).        A    reviewing        court    must   also


      7
       Although the cases involving warrantless inspections of
highly regulated businesses do not rely on consent as the basis
for the reasonableness of such searches, the rationale in those
cases is analogous in that the inspections are reasonable in
part because a business owner chooses to enter the regulated
field and the government regulations supply notice of the scope
and frequency of inspections. See United States v. Biswell, 406
U.S. 311, 316 (1972).
      8
       Some more recent decisions hold that consent is not
required at all in the airport screening context, because such
searches   are  reasonable   under  the   administrative  search
doctrine. See, e.g., United States v. Aukai, 497 F.3d 955, 960
(9th Cir. 2007); United States v. Hartwell, 436 F.3d 174, 178-81
(3d Cir. 2006).


                                        11
                                                            No.    2014AP1870-CR.mjg


consider the scope and the voluntariness of the individuals'

consent under the particular implied consent scheme presented.

See, e.g., Birchfield, 136 S. Ct. at 2186 (remanding to state

court to revisit voluntariness of consent, in light of holding

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

a blood test on pain of committing a criminal offense").

      ¶70       A federal case out of the Seventh Circuit is helpful

in illustrating how both the scope and the voluntary nature of

the   consent         implied   by    conduct    are   evaluated     by    what    is

reasonable under the particular circumstances.                    Where a parking

lot for government employees had signs posted stating that all

vehicles were "subject to search," the mere conduct of parking

in the lot did not imply consent to a sudden, unprecedented

search of all vehicles because the vague signs gave no reason to

expect such a singular suspicionless search.                McGann v. Ne. Ill.

Reg'l Commuter R.R. Corp., 8 F.3d 1174, 1176, 1182-83 (7th Cir.

1993); see also State v. Iaccarino, 767 So.2d 470, 477 (Fla.

Dist. Ct. App. 2000) (holding that implied consent to searches
at festival entrance did not extend to intrusive drug searches,

because     a    "reasonable     person    would   conclude       from    the   signs

posted at the gate that the search was limited to cans, bottles,

and the contents of coolers or backpacks, . . . [not] wallets,

pockets, and underwear").

                                 V.    APPLICATION

      ¶71       I now apply these principles to the unconscious-driver

provisions       of    Wisconsin's     implied   consent   law,      in    light   of
Howes' arguments.          Howes argues that, under the Supreme Court's

                                          12
                                                                 No.    2014AP1870-CR.mjg


recent decisions in Missouri v. McNeely, 133 S. Ct. 1552 (2013),

and    Birchfield      v.     North    Dakota,       136    S.   Ct.     2160   (2016),

authorizing warrantless blood tests of unconscious drivers based

solely on their implied consent creates an unreasonable per se

exception    to    the      warrant     requirement.         I   therefore      address

McNeely and Birchfield to explain why they do not support the

result that Howes suggests.               I then examine the reasonableness

of the law's presumption that a person has impliedly consented

to testing while unconscious, and I conclude that it does not

violate the Fourth Amendment.

                            A.    McNeely and Birchfield

       ¶72   In McNeely, the Supreme Court held that the natural

dissipation of alcohol in the bloodstream does not constitute a

per se exigency that always justifies a warrantless blood draw.

McNeely, 133 S. Ct. at 1563.                   Although Howes points to broad

language in McNeely that emphasizes the intrusive nature of a

blood draw and the need for an examination of the totality of

the circumstances, the holding in McNeely is limited only to the
question of exigent circumstances.                  The McNeely Court "pointedly

did    not    address"           any   other       exceptions     to     the    warrant

requirement.      Birchfield, 136 S. Ct. at 2174.                      Here, the State

does   not   ground      its      argument     in    exigent     circumstances,      but

rather bases its case entirely upon the consent exception to the

warrant requirement.             So, put simply, McNeely is inapplicable to

the question before us, that is, whether the unconscious-driver

provisions        of        Wisconsin's           implied      consent       law     are
unconstitutional.

                                             13
                                                               No.    2014AP1870-CR.mjg


    ¶73     With      Birchfield,     we     get   closer     to     the       mark.     In

Birchfield,      the Supreme Court held,             inter alia, that              it    was

unreasonable to deem a driver "to have consented to submit to a

blood   test      on     pain    of    committing       a     criminal          offense."

Birchfield, 136 S. Ct. at 2186.                 But Wisconsin's implied consent

law does not threaten the criminal penalties that Birchfield

disapproved; instead, the result of refusal is that the officer

shall "prepare a notice of intent to revoke, by court order

under sub. (10), the person's operating privilege."                            Wis. Stat.

§ 343.305(9)(a).         A court-ordered revocation under § 343.305(10)

is not a criminal penalty.9                Therefore, nothing in Birchfield

undermines the longstanding provisions of Wisconsin's implied

consent law.

    ¶74     On     the     contrary,       the     Supreme     Court           stated     in

Birchfield     that      "[i]t   is   well      established    that        a    search   is

reasonable when the subject consents, and that sometimes consent

to a search need not be express but may be fairly inferred from

context."      Birchfield, 136 S. Ct. at 2185 (citations omitted).


    9
       A revocation under Wis. Stat. § 343.305(10) has other
consequences, but they are not criminal penalties for the
withdrawal of consent. For example, Wis. Stat. § 343.307(1)(f)
provides that a revocation under § 343.305(10) is counted in
determining the penalty for operating a motor vehicle while
intoxicated in violation of Wis. Stat. § 346.63(1).      But that
penalty is imposed only on the subsequent criminal offense of
drunk driving, not on the earlier withdrawal of consent to
testing under the implied consent law. Unlike the North Dakota
law at issue in Birchfield, which made the refusal itself a
misdemeanor in the first instance, see Birchfield, 136 S. Ct. at
2170-71, a person's withdrawal of consent to a blood test under
Wisconsin's implied consent law is not a criminal offense.


                                           14
                                                                No.   2014AP1870-CR.mjg


The    Court     continued,        "Our     prior     opinions        have      referred

approvingly to the general concept of implied-consent laws that

impose civil penalties and evidentiary consequences on motorists

who   refuse     to     comply.          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) (citations

omitted).       Far     from    disapproving       the    concept     of    consent     by

conduct within the context of a driver's implied consent, the

Court expressly endorsed the general validity of state implied

consent laws that infer motorists' consent to testing from the

conduct of driving.

B.    Drivers in Wisconsin Consent to Testing By Choosing to Drive

                     With Notice of Their Responsibilities

      ¶75   Howes argues that it is unreasonable to presume that a

driver has consented to testing merely by the conduct of driving

on state highways.           However, the understanding that a driver's

voluntary      consent    to    testing     of    blood,    breath,        or   urine    is

validly implied by the conduct of driving has been consistently
recognized      in    this     court's    cases.         See,   e.g.,      Zielke,      137

Wis. 2d at 48 ("The consent is implied as a condition of the

privilege of operating a motor vehicle upon state highways.");

Neitzel, 95 Wis. 2d at 203 ("The entire tenor of the implied

consent      law       is . . . that         consent        has       already        been

given . . . .").         In Neitzel, we concluded that an arrestee does

not have a statutory right to consult with counsel about whether

to refuse testing, because "a lawyer cannot induce his client to
recant a consent previously given knowingly and voluntarily."

                                           15
                                                           No.   2014AP1870-CR.mjg


Neitzel, 95 Wis. 2d at 201 (emphasis added).                    At the time the

defendant chose to drive, "he was fully cognizant of his rights

and was deemed to know that, in the event he was later arrested

for drunken driving, he had consented . . . to chemical testing

under the circumstances envisaged by the statute."                       Id.     Put

simply,    consent    to    testing   had    already     been    given,    and   it

remained valid until withdrawn.10

     ¶76    Inferring       consent   to    testing    from     the   conduct    of

driving appears essential to the validity of the warrantless

blood test that occurred in State v. Disch, 129 Wis. 2d 225, 385

N.W.2d 140 (1986), where this court upheld a blood test of a

driver    who   was   "in    a   stupor"    and   "did    not     seem    able   to

concentrate."     Id. at 236.         The only basis for this ruling was

the same statutory language that Howes now challenges.                    See id.

at 236-38. Therefore, unless this court has had a sudden change

of heart unsignaled over the course of the past thirty years of




     10
       Howes argues that a recent court of appeals decision,
State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849
N.W.2d 867, stands for the contrary proposition. In Padley, the
court of appeals rejected "the State's incorrect view that . . .
'implied consent' alone can 'serve as a valid exception to the
warrant requirement.'" Id., ¶37. However, Padley did not cite
authority for its rejection of the validity of a driver's
implied consent as an exception to the warrant requirement, nor
was such a conclusion necessary to decide the case, because the
driver in Padley consented expressly.   See id., ¶11.   I reject
Padley's view as having no basis in law and as inconsistent with
the Supreme Court's analysis of a state implied consent law
under the principle that "consent to a search need not be
express but may be fairly inferred from context."    Birchfield,
136 S. Ct. at 2185.


                                       16
                                                                   No.       2014AP1870-CR.mjg


its jurisprudence on the implied consent law, it would appear

that Howes should receive the same result that Disch received.

       ¶77     Wisconsin is not the only jurisdiction to recognize

that consent to testing is implied when a person operates a

motor vehicle and continues until it is revoked.                                  The Idaho

Supreme       Court     recognizes       that    drivers        "give        their     initial

consent       to    evidentiary        testing     by    driving        on     Idaho    roads

voluntarily," and such consent will "qualify as voluntary" so

long    as    the     driver    "continue[s]       to    give    voluntary           consent."

State v. Wulff, 337 P.3d 575, 582 (Idaho 2014).                               Applying this

rule    to    an    apparently        unconscious       driver,    Idaho's           court   of

appeals recognized the validity of the driver's implied consent

under    the       Fourth    Amendment,     because       "[t]he        fact     that       [the

driver] was allegedly unconscious when the officer read her the

advisory does not effectively operate as a withdrawal of her

consent."          Bobeck v. Idaho Transp. Dept., 363 P.3d 861, 866-67

(Idaho       Ct.    App.    2015).       Further,       the   court      held        that    the

officers had no duty "to ensure comprehension of a person who is
under the influence to the point of being semi-conscious or

unconscious at times."               Id. at 865.

       ¶78     I acknowledge that other courts have found that the

implied       consent      of   an    unconscious       driver     cannot        justify       a

warrantless blood draw.                 See, e.g., People v. Arredondo, 199

Cal. Rptr. 3d 563 (Cal. Ct. App. 2016), modified on denial of

reh'g (Mar. 24, 2016), review granted, 371 P.3d 240 (Cal. 2016);

Bailey v. State, 790 S.E.2d 98 (Ga. App. 2016); State v. Romano,
785 S.E.2d 168 (N.C. Ct. App. 2016), review granted, 794 S.E.2d

                                            17
                                                                    No.    2014AP1870-CR.mjg


315 (N.C. 2016), review granted, writ granted, 794 S.E.2d 317

(N.C. 2016); State v. Ruiz, ___ S.W.3d ___, 2015 WL 5626252

(Tex. App. Aug. 27, 2015),                      vacated, No. PD-1362-15,              2017 WL

430291 (Tex. Crim. App. Feb. 1, 2017) (per curiam).

       ¶79     At first blush, this appears to be a significant list

of courts with holdings inapposite to that which I advocate

today.       However, the holdings in those cases all assume that

McNeely (the exigent circumstances case) controls the outcome in

implied consent cases.                    See, e.g., Bailey, 790 S.E.2d at 104

("In light of McNeely . . . implied consent was insufficient to

satisfy the Fourth Amendment . . . .").                           Both as a matter of

logic    and     in        light    of    the    relevant      language    in       Birchfield

(decided after McNeely), I fail to see how that can be the case.

Because McNeely does not control as to the application of the

consent        exception       to        the    warrant    requirement,         I    reach   a

different conclusion than other jurisdictions do.

                      C.    The Scope of Consent Is Reasonable

       ¶80     I conclude that the unconscious-driver provisions are
reasonable in light of the clarity and specificity of the notice

given and the strict statutory parameters for the occasion and

manner of testing.

       ¶81     First, the notice given in the statute is clear: a

test     may     be        performed      on    a     driver    while     he    or    she    is

unconscious,          Wis.     Stat.       § 343.305(3)(ar)-(b),          and       continuing

consent to testing is deemed to exist by virtue of the operation

of a motor vehicle, § 343.305(2).                       A driver is "deemed to know"
the conditions imposed by the implied consent law, Neitzel, 95

                                                 18
                                                                     No.    2014AP1870-CR.mjg


Wis. 2d at 201, and the conditions in the unconscious-driver

provisions are unequivocal.

      ¶82     Second, the notice given is much more specific than

the vague, generalized notices rejected by the Seventh Circuit

in   McGann      and   by     the     Florida        District    Court      of    Appeal    in

Iaccarino.        In those cases, generic "subject to search" notices

did not provide fair notice of the extensive searches actually

performed, and it was therefore unreasonable to deem individuals

to have consented to those searches.                         See McGann, 8 F.3d at

1176, 1183; Iaccarino, 767 So.2d at 477-80.                          But as the Florida

court   suggested        in    Iaccarino,         providing      a    clearer      and    more

specific notice would have been enough to establish consent.

Iaccarino,       767   So.2d     at      480.        Here,   the     statute      explicitly

notifies all drivers that they will be deemed to have consented

to the tests (not to the choice of testing or revocation), in

particular circumstances specifically tailored to combating the

dangers     of    intoxicated         driving.         Unlike      the     parking   lot    in

McGann,     where      unwarned       and      unprecedented       searches       were    held
unreasonable based on a vague notice, the State provides notice

through     its    statutes         of   its    regularly       performed        tests,    and

drivers have no reason to expect otherwise.

      ¶83     Further,        tests      may    be    performed      on    an    unconscious

person only in specific situations.                     Testing may be performed if

an officer has probable cause to arrest the driver, but only if

the arrested offense is one of certain enumerated intoxicated-

driving     offenses     under        Wis.     Stat.    § 346.63      or    certain      other
offenses involving injury or homicide by intoxicated use of a

                                                19
                                                                             No.    2014AP1870-CR.mjg


vehicle.      See Wis. Stat. § 343.305(3)(b).                           But if the driver has

not been arrested, testing of an unconscious person is limited

to cases involving an accident causing bodily harm and either

the      presence         of      alcohol           or           a      violation        of        law.

§ 343.305(3)(ar)1.-2.             Also, if the test is a blood test, it may

be administered "only by a physician, registered nurse, medical

technologist,         physician       assistant,                   phlebotomist,         or    other

medical professional who is authorized to draw blood, or person

acting      under    the       direction       of        a       physician."           Wis.    Stat.

§ 343.305(5)(b) (2015-16).                 These             conditions circumscribe the

scope of the testing, and testing an unconscious person outside

of them requires a warrant, exigent circumstances, or "other

lawful means."        § 343.305(3)(c).

      ¶84     In the final analysis, "[i]t is the motorist who has

voluntarily asserted his or her autonomy" in deciding to drive,

State v. Wintlend, 2002 WI App 314, ¶19, 258 Wis. 2d 875, 655

N.W.2d    745,      and    "voluntary         consent            to    a    blood    draw     is    not

negated by the fact that consent was procured by informing a
suspect     that     the       alternative       is          a       penalty,"        Padley,       354

Wis. 2d 545, ¶72 (citing Vill. of Little Chute v. Walitalo, 2002

WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891).                                     Howes exercised

his   autonomy      by     electing      to     drive            under      the    conditions       all

drivers in Wisconsin accept, and he has not developed——much less

perfected——any        argument      as     to       why,         if     a   driver's      voluntary

consent to testing may be implied from the conduct of driving,

the   blood    test       performed      on     him          was      not   authorized        by    his
implied consent.

                                               20
                                                                    No.    2014AP1870-CR.mjg


                                    VI.   CONCLUSION

    ¶85     No    warrant      is    required        in    order    to     administer    the

tests to which a driver has impliedly consented, even if the

driver is found unconscious.                   Voluntary consent to testing can

be presumed from the decision to drive made with notice of the

statutory   requirements            and   in     the      absence    of    any     expressed

intent to revoke such consent.                   Further, this presumption that

an unconscious driver does not withdraw consent is not per se

unreasonable under the Fourth Amendment.                           Therefore, I cannot

conclude    that       Howes   has    met      his     burden      to     prove    beyond   a

reasonable doubt that the unconscious-driver provisions of the

statute     are        facially       unconstitutional              and      "cannot        be

constitutionally         enforced     under      any      circumstances."            Society

Ins., 326 Wis. 2d 444, ¶26.                 I conclude that the circuit court

erred in striking down the statute as facially unconstitutional

and in suppressing the results of the blood test on that basis.

    ¶86     For the foregoing reasons I concur.

    ¶87     I     am     authorized       to      state      that        Justice     ANNETTE
KINGSLAND ZIEGLER joins this concurrence.




                                            21
                                                              No.    2014AP1870-CR.dk




    ¶88   DANIEL KELLY, J.        (concurring).         I join Chief Justice

ROGGENSACK's   opinion    in   toto   as   well   as    the     mandate     of   the

court.    I,   at   the    same   time,     join       Part     II     of   Justice

ABRAHAMSON's     dissent       insofar       as        it      discusses         the

constitutionality of Wis. Stat. §343.305(3)(b).




                                      1
                                                                   No.      2014AP1870-CR.ssa




       ¶89   SHIRLEY S. ABRAHAMSON, J.                    (dissenting).             Only one

question of law has been at issue in the instant case since its

inception:         Whether provisions of Wisconsin's implied consent

law    authorizing        warrantless        blood        draws        from       unconscious

drivers,       Wis.        Stat.        §§ 343.305(3)(ar)              and        (b),       are

constitutional.          These statutory provisions appear in Attachment

1.1

       ¶90   The        constitutional          inquiry         into        the     statute's

unconscious        driver       provisions       focuses    on     whether          statutory

implied consent to a blood draw, a significant search of the

person,      satisfies      the     "consent"        exception          to        the     Fourth

Amendment.        This is the only Fourth Amendment issue the parties

addressed in the circuit court and in their briefs and arguments

in    this   court.         This    is    the     only     Fourth       Amendment          issue

addressed     by    the     circuit      court.          This    is     the       only     issue

addressed by the court of appeals in its certification memo.2

       ¶91   At     the     suppression          hearing,        the        circuit        court
considered        the    only     two    issues     presented          by     the       parties:



       1
       For clarity, Chief Justice Roggensack's lead opinion is
joined by Justice Rebecca Grassl Bradley and Justice Daniel
Kelly.    Justice Gableman's concurring opinion is joined by
Justice Annette Kingsland Ziegler. Justice Daniel Kelly filed a
concurring opinion.   This dissent is joined in its entirety by
Justice Ann Walsh Bradley, and in Part II by Justice Daniel
Kelly insofar as it discusses the constitutionality of Wis.
Stat. § 343.305(3)(b).
       2
       See State v. Howes, No. 2014AP1870-CR, certification by
Wisconsin Court of Appeals (Wis. Ct. App. Jan. 28, 2016).


                                             1
                                                                      No.       2014AP1870-CR.ssa


probable cause to arrest the defendant and the constitutionality

of the Wisconsin implied consent law.

       ¶92    The circuit court held that there was probable cause

to arrest the defendant.                I agree.

       ¶93    After    indulging          every      presumption           to     sustain      the

constitutionality of the statute, the circuit court concluded

that    the     statute          was     unconstitutional             under          the   Fourth

Amendment:      No consent in the constitutional sense can be given

when    the   driver        is   unconscious         and    incapable           of    giving   or

withdrawing consent.             I agree.

       ¶94    Rather    than           address       the    Fourth         Amendment        issue

presented by the parties, the lead opinion sua sponte upholds

the    warrantless      blood          draw   under        the    Fourth         Amendment     by

fabricating "exigent circumstances."                       The lead opinion misleads

the reader into believing that the circuit court addressed and

decided the existence of exigent circumstances.                                 See lead op.,

¶2.    The circuit court did not do so.                     In paragraph 15, the lead

opinion fesses up that the circuit court merely stated without
analysis that no exigent circumstances were presented by the

instant case.

       ¶95    The lead opinion establishes the existence of "exigent

circumstances" by stepping off the bench, seating itself at the

counsel table as advocate for the State, and putting itself on

the stand as witness for the State, thus abandoning its role as

neutral decision maker.                  By raising and deciding the exigent

circumstances exception sua sponte without giving the defendant
an    opportunity      to    present       evidence        or    to   be    represented        by

                                                 2
                                                     No.    2014AP1870-CR.ssa


counsel, the lead opinion violates basic concepts of due process

and destabilizes the adversary system at both the trial and

appellate levels.3

     ¶96   Furthermore, no reasonable view of the record supports

theholding   that    exigent    circumstances   justify     a   warrantless

blood draw in the instant case.           The lead opinion refuses to

hold itself to the "heavy burden" it undertakes (when it acts as

the State's surrogate) to rebut the presumption by clear and

convincing   evidence    that    a   warrantless   search    of   Howes   is

unreasonable.4

     ¶97   In essence, the lead opinion engages in an assault on

Missouri v. McNeely, 133 S. Ct. 1552 (2013).           McNeely caused a

paradigm shift in Fourth Amendment and drunk-driving law.5                The

McNeely Court held:

     3
       As the United State Supreme Court has explained: "In our
adversary system, in both civil and criminal cases, in the first
instance and on appeal, we follow the principle of party
presentation.   That is, we rely on the parties to frame the
issues for decision and assign to courts the role of neutral
arbiter of matters the parties present."     Greenlaw v. United
States, 554 U.S. 237, 243–44 (2008) (citing Castro v. United
States, 540 U.S. 375, 381–83 (2003)).        The Court further
explained: "To the extent courts have approved departures from
the party presentation principle in criminal cases, the
justification has usually been to protect a pro se litigant's
rights."   The defendant in the instant case is not a pro se
litigant. He is represented by counsel.
     4
       Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) ("[P]olice
bear a heavy burden when attempting to demonstrate an urgent
need that might justify warrantless searches or arrests").
     5
       See, e.g., State v. Tullberg, 2014 WI 134, ¶42, 359
Wis. 2d 421, 857 N.W.2d 120 (McNeely "changed the landscape of
warrantless blood draws in Wisconsin").


                                      3
                                                                 No.     2014AP1870-CR.ssa


        • "[W]hile      the     natural       dissipation        of    alcohol     in    the

            blood may support a finding of exigency in a specific

            case, . . . it        does        not      do     so       categorically."

            McNeely, 133 S. Ct. at 1563.

        • A "careful case—by-case assessment of exigency" must

            be undertaken.       McNeely, 133 S. Ct. at 1561.

        • Most importantly, if law enforcement "can reasonably

            obtain a warrant before a blood sample can be drawn

            without significantly undermining the efficacy of the

            search,    the    Fourth     Amendment         mandates      that    they     do

            so."    McNeely, 133 S. Ct. at 1561 (emphasis added).

      ¶98   These     McNeely    principles          govern      the     instant      case.

McNeely's directive that a court engage in careful, case-by-case

assessments    of   exigency      cannot       be    met    by     way    of    the     lead

opinion's assumptions and speculation in an appellate opinion.

The   record   does     not     support       a     case-by-case         assessment       of

exigency in the instant case and does not support a holding that

law enforcement could not have reasonably obtained a warrant
before a blood sample could be drawn.

      ¶99   Because the lead opinion whittles away constitutional

protections for the defendant and all of us under the rubric of

exigent circumstances, I dissent.

      ¶100 I will first address the lead opinion's explication of

exigent circumstances as an exception to the Fourth Amendment in

the instant case.       I will then address the constitutionality of

the statutory implied consent under the Fourth Amendment.
                                          I

                                          4
                                                          No.   2014AP1870-CR.ssa


     ¶101 At the hearing on the motion to suppress the test

results from the blood draw, the State's witness, Deputy Schiro

of the Dane County Sheriff's Office, was the only witness.                    He

testified to establish probable cause and his compliance with

the implied consent law.

     ¶102 The State did not introduce any evidence to establish

exigent circumstances.       Indeed, the State did not even hint that

exigent circumstances may have authorized the warrantless blood

draw.

     ¶103 The    defendant    has   never    been    given      notice   or    an

opportunity to present evidence or make arguments regarding what

has become the dispositive issue in the instant case——exigent

circumstances.     I   thus    conclude     that    the   lead    opinion     has

deprived the defendant of due process and has destabilized the

adversary system at both the trial and appellate levels.

     ¶104 A defendant has due process rights to notice of issues

to be resolved and to be heard in a meaningful way, including "a

right to examine the witnesses against him, to offer testimony,
and to be represented by counsel."             Washington v. Texas, 388

U.S. 14, 18 (1967) (citing In re Oliver, 333 U.S. 257, 273

(1948)).6   The defendant's due process rights in the instant case

     6
       Lankford v. Idaho, 500 U.S. 110, 126 (1991) ("notice of
issues to be resolved by the adversary process is a fundamental
characteristic of fair procedure."); California v. Trombetta,
467 U.S. 479, 485 (1984) ("criminal prosecutions must comport
with prevailing notions of fundamental fairness"); Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950)
(due process requires that "adjudication be preceded by notice
and opportunity for hearing appropriate to the nature of the
case").


                                     5
                                              No.   2014AP1870-CR.ssa


to get notice, to be heard, to present a complete defense, and

to have counsel have been violated.7

     7
       See In re Termination of Parental Rights to Daniel R.S.,
2005 WI 160, ¶65, 286 Wis. 2d 278, 706 N.W.2d 269 ("the
opportunity to be heard includes the right to 'present a
complete defense'") (quoted source omitted).

     "The opportunity to present arguments on the legal issue
upon which a case is to be decided is fundamental to sound legal
process . . . ."  Bloomer v. Gibson, 912 A.2d 424, 433–34 (Vt.
2006) (citing Adam A. Milani & Michael R. Smith, Playing God: A
Critical Look at Sua Sponte Decisions by Appellate Courts, 69
Tenn. L. Rev. 245 (2002)). The Bloomer court cited large swaths
of   Milani  and  Smith's   article,  including   the  following
discussion:

     [B]eing denied an opportunity to address the issue
     that ultimately proves dispositive of a case is no
     different than a complete denial of an opportunity to
     be heard.   If a court perceives the issues on appeal
     as different from those addressed by the parties, the
     parties should have a right to receive notice of the
     court's concern about those issues and to present
     arguments   on  them.      Without   this  right,  the
     opportunity to be heard is but a "teasing illusion."
     Allowing a party to submit briefs and arguments on
     what the party believes to be the issues, but denying
     that party the opportunity to be heard on the issue
     the court deems dispositive, is akin to granting
     citizens free speech but barring them from speaking on
     issues of public concern.     In both situations, the
     exception renders the right meaningless.

Milani & Smith, 69 Tenn. L. Rev. at 268-69 (footnotes omitted).

     See also Justice Ann Walsh Bradley's concurrence in City of
Janesville v. CC Midwest, Inc., 2007 WI 93, ¶68, 302
Wis. 2d 599, 641, 734 N.W.2d 428, 450 (Bradley, J., concurring),
explaining the fundamental premise of the adversary system:

     The rule of law is generally best developed when
     issues are raised by the parties and then tested by
     the fire of adversarial briefs and oral arguments.
     Indeed, "[t]he fundamental premise of the adversary
     process is that these advocates will uncover and
     present more useful information and arguments to the
                                                   (continued)
                               6
                                                             No.     2014AP1870-CR.ssa


      ¶105 Furthermore, this kind of violation of due process may

undermine the validity and legitimacy of the court's decision:

"If   notice   is   not    given,   and       the   adversary      process     is   not

permitted to function properly, there is an increased chance of

error . . . and     with    that,    the       possibility      of    an    incorrect

result."   Lankford v. Idaho, 500 U.S. 110, 127 (1991).

      ¶106 Moreover, the lead opinion violates a basic rule of

appellate review by bypassing the adversary process and raising

and deciding a dispositive issue on its own without the benefit

of briefs or argument.8




      decision maker than would be developed by a judicial
      officer acting on his own in an inquisitorial system."
      Adam A. Milani & Michael R. Smith, Playing God: A
      Critical Look at Sua Sponte Decisions By Appellate
      Courts, 69 Tenn. L. Rev. 245, 247 (2002), citing
      United States v. Burke, 504 U.S. 229, 246, 112 S. Ct.
      1867,   119  L.   Ed.  2d   34  (1992)   (Scalia,  J.,
      concurring).
      8
       "As various members of this court have said, we should not
'reach out and decide issues' that were not presented to the
court by the parties."      Dairyland Greyhound Park, Inc., v.
Doyle, 2006 WI 107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408
(Roggensack, J., concurring in part & dissenting in part)
(quoting Town of Beloit v. Cty. of Rock, 2003 WI 8, ¶72, 259
Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting)). See
also State v. Thompson, 2012 WI 90, ¶¶9, 60, 342 Wis. 2d 674,
818 N.W.2d 904 (declaring that the court should not decide
issues that are not briefed).

                                                                           (continued)
                                          7
                                                                   No.    2014AP1870-CR.ssa


    ¶107 In addition to issues of violating due process and

appellate practice, as a factual matter, if counsel for the

defendant       had    had      an     opportunity           to     address           exigent

circumstances,        counsel        might       have   presented          evidence       and

argument       that   significantly           undercut       the         lead    opinion's

presentation of what might have been (but was not and might not

be) the State's position on exigent circumstances.

    ¶108 For example, a key factual sticking point in the lead

opinions's      exigent    circumstances          analysis    is     that       the    record

does not demonstrate that law enforcement could not have timely

secured    a    warrant.        The    lead      opinion     presents       no    evidence

establishing      approximately        how       long   it   would       have    taken     to

obtain a warrant for the blood draw in Dane County.                                   Yet the

     The United States Supreme Court has often explained the
fundamental importance of the adversarial presentation of
issues.   See, e.g., Penson v. Ohio, 488 U.S. 75 (1988) ("This
system is premised on the well-tested principle that truth——as
well as fairness——is 'best discovered by powerful statements on
both sides of the question.'" (citations omitted)); Polk Cty. v.
Dodson, 454 U.S. 312, 318 (1981) ("The system assumes that
adversarial testing will ultimately advance the public interest
in truth and fairness."); Mackey v. Montrym, 443 U.S. 1, 13
(1979) ("[O]ur legal tradition regards the adversary process as
the best means of ascertaining truth and minimizing the risk of
error . . . .").

     See also State v. Negrete, 2012 WI 92, ¶80 n.20, 343
Wis. 2d 1,   819   N.W.2d 749  (Abrahamson,   C.J.,   dissenting)
("Scholars have made similar observations.    See, e.g., Stephan
Landsman, Readings on Adversarial Justice:          The American
Approach to Adjudication (1988); Jerold H. Israel, Cornerstones
of the Judicial Process, Kan. J.L. & Pub. Pol'y, Spring 1993, at
5; Ellen E. Sward, Values, Ideology, and the Evolution of the
Adversary System, 64 Ind. L.J. 301, 316–19 (1989).").




                                             8
                                                               No.   2014AP1870-CR.ssa


lead opinion, without any evidentiary record, concludes that the

officer did not have time.

       ¶109 At the suppression hearing, which addressed whether

the    officer     had   probable    cause     to   arrest     and   the     officer's

compliance        with   the   implied        consent     statute,     the    officer

testified as follows on cross-examination by defense counsel and

on redirect examination by the State that he had the time to get

a warrant:

On cross-examination of Deputy Schiro by defense counsel:

       Q. And you had plenty of time in this case to get a
       warrant, didn't you?

       A.   Yes

       . . . .
On redirect examination of Deputy Schiro by the State:

       Q. You testified on cross-examination, Deputy Schiro,
       that you had plenty of time to get a warrant before
       the blood draw. Why didn't you?

       A. I believe I did not have to.
       ¶110 The     lead   opinion    rejects       the    Dane   County     deputy's

testimony as the deputy's subjective belief.                      The lead opinion

reminds     us    that   the   totality   of     the      circumstances      test   for

exigent circumstances is an objective one.                   See lead op., ¶36 &

n.9.

       ¶111 Relying on United States v. Richardson, 208 F.3d 626,

629 (7th Cir. 2000), the lead opinion reasons that "a police

officer's subjective belief that exigent circumstances exist is

insufficient to make a warrantless search."                   The instant case is
distinguishable from Richardson.                 Here, the officer testified

                                          9
                                                                    No.   2014AP1870-CR.ssa


that    he    did       not    believe    there    were     exigent       circumstances.

Because      the    Fourth      Amendment    puts     the    burden       to     prove    the

reasonableness of a warrantless search on the government, it is

one    thing       to    ignore    the    officer's       subjective,       self-serving

belief that he did not have time to get a warrant and a wholly

different issue to rely on the officer's statement that he had

time to get a warrant as an objective evaluation of exigency.

       ¶112 Furthermore,          defense    counsel        might    have       offered    as

expert testimony the deputy's testimony about whether he had

time to get a warrant.              The testifying deputy has worked for 15

years as a Dane County law enforcement officer, and he ought to

be qualified to testify from personal, professional expertise

about the time needed to get a warrant in Dane County.

       ¶113 Advancements           have     been    made     for      the       expeditious

processing of warrant applications.                       McNeely, 133 S. Ct. at

1561-63.       See Wis. Stat. §§ 968.12(3)(a)-(d) (authorizing search

warrants       on       oral   testimony     communicated       to        the    judge     by

telephonic, radio, or other means of electronic communication).
The Dane County Circuit Court has a system of 24/7 duty judges

to provide telephonic warrants.                    See Dane County Court Rules,

Rule 102, entitled "Duty Judge Responsibility."

       ¶114 Indeed the Dane County deputy's view on how long it

would take to get a telephonic warrant in Dane County ought to

be more reliable than the unsupported view of the three justices

joining the lead opinion.                Furthermore, the Dane County Circuit

Court's view on how long it would take to get a telephonic



                                            10
                                                          No.    2014AP1870-CR.ssa


warrant in Dane County ought to be more reliable than the view

of the three justices joining the lead opinion.

     ¶115 In    rendering   its   decision      declaring       the    blood    draw

unconstitutional, the circuit court declared as an aside that

there were no exigent circumstances causing an exception to the

warrant    requirement   and    that   the    deputy    had     time    to    get   a

warrant:

     [T]here   are  no   exigent  circumstances  that  are
     identified here that would cause an exception to the
     warrant requirement. . . . [t]he officer testified
     that there was no reason he could not have gotten a
     warrant. . . . There is nothing to suggest that there
     were exigent circumstances that would obviate the
     warrant requirement, so that's where we need to leave
     it then today.
     ¶116 In addition, defense counsel might have challenged the

lead opinion's reliance on the defendant's prohibited alcohol

concentration      of    0.02     percent       as      supporting           exigent

circumstances.     Blood alcohol concentration, BAC, refers to the

amount of alcohol in the driver's blood.                 Prohibited alcohol

content, PAC, refers to the legal limit of alcohol in a driver's

blood.9
     9
       See Wis. Stat. § 346.63,             Operating   under     influence         of
intoxicant or other drug:

     (1) No person may drive or operate a motor vehicle
     while:

            . . . .

     (b) The person has a prohibited alcohol concentration.

See Wis. Stat. § 340.01(46m):

     "Prohibited      alcohol concentration"         means one of the
     following:
                                                                       (continued)
                                       11
                                                              No.    2014AP1870-CR.ssa


       ¶117 According to the lead opinion, a 0.02 percent BAC will

disappear in one to two hours.                    Lead op.,      ¶45.      With this

shortened timeline, the time available for an officer to obtain

a   warrant   decreases,    according        to    the    lead      opinion.       This

proposition is central to the analysis in the lead opinion.

       ¶118 Under closer scrutiny, it appears that this critical

one-to-two-hour time period might have elapsed before the blood

draw    was   requested    or   taken    and       that    the   lowered       PAC   is

irrelevant to the exigent circumstances analysis in the instant

case.

       ¶119 The   record   does   not    reveal      the    time      at   which     the

defendant stopped drinking or the time at which the accident

occurred.     See lead op., ¶47.        The record demonstrates only that

the blood draw was roughly two hours after the sheriff's office

was advised of the accident.        See lead op., ¶13.

       ¶120 Thus, the defendant's last drink and the accident were

obviously more than two hours before the blood was drawn.                          If a

0.02 percent BAC will dissipate in one to two hours (as the lead
opinion suggests), there were no exigent circumstances when the

blood draw was made because the BAC in all probability would had

already dissipated.

       (a) If the person has 2 or fewer prior convictions,
       suspensions, or revocations, as counted under s.
       343.307(1), an alcohol concentration of 0.08 or more.

       (c) If the person is subject to an order under s.
       343.301 or if the person has 3 or more prior
       convictions, suspensions or revocations, as counted
       under s. 343.307(1), an alcohol concentration of more
       than 0.02.


                                        12
                                                               No.    2014AP1870-CR.ssa


     ¶121 The record nevertheless indicates that the defendant's

BAC was in all probability more than 0.02 percent.                               Several

witnesses        reported    smelling    intoxicants          on     the   defendant.

According to the Assistant District Attorney's argument at the

suppression hearing, a person with a 0.11-.13 percent BAC will

not exude "an incredibly heavy" odor.                   Thus, a person with a

0.02 percent BAC would have exuded even less of an odor of

intoxicants.10

     ¶122 If the defendant's BAC was substantially higher than

0.02 percent, then law enforcement would have had more than one

to two hours after the last drink within which to obtain a

warrant     for    a     blood   draw   and     still   gather        evidence      that

defendant violated the law.

     ¶123 In either eventuality, that is, whether the defendant

had a .02 percent BAC or had a higher BAC, the lead opinion's

reliance     on    the    defendant's    lower    PAC    threshold         to    support

exigent circumstances falls apart.

     ¶124 Defense counsel might have shown that the hour before
law enforcement requested the hospital for a blood draw and the

hour between the officer's request for a blood draw and the

blood     draw    were    sufficient    times    for    the    officer      to    get   a

warrant.




     10
       The        assistant   district   attorney  set   forth   this
proposition       in order to explain why Deputy Schiro did not
testify that      he recalled smelling alcohol on the defendant. See
Pet. App. at      77.


                                         13
                                                                    No.   2014AP1870-CR.ssa


    ¶125 The evidence of the defendant's medical condition was

sketchy.    It    is    thus     unclear       whether       it    would    have         led   a

reasonable officer to conclude that there was no time to obtain

a warrant before blood was drawn.

    ¶126 Defense counsel might have also shown that several law

enforcement      officers      were      on    the       accident     scene        and    were

available to aid Deputy Schiro.                    Deputy Schiro also talked with

his sergeant.

    ¶127 The involvement of other law enforcement agents cuts

against    the    existence        of   exigent          circumstances.            There       is

nothing    in    the    record     indicating         that    the    several        officers

involved    were       so   busy    finding         or    identifying       the      driver,

extensively      investigating          the    accident,          tending     to     injured

victims, removing the deer and motorcycle from the road, or

engaging in other activities that neither they nor the sergeant

could not initiate a telephone warrant process.

    ¶128 In addition, defense counsel might have persuaded the

court to follow precedent, namely State v. Kennedy, 2014 WI 132,
¶34 n.13, 359 Wis. 2d 454, 856 N.W.2d 834, in which the court

explained its reluctance to address exigent circumstances when

the State does not argue that exigent circumstances existed:

    The State, which would bear the burden, does not argue
    that exigent circumstances existed in this case.
    Neither the State nor Kennedy focus on this issue.
    Whether an exigency exists in a given case will vary
    depending on any number of facts or circumstances, as
    law     enforcement    investigations    are     often
    extraordinarily fluid situations. Our holding in this
    case must not be read to affirmatively conclude that
    exigent circumstances did not support the warrantless
    investigatory   blood  draw   performed  on   Kennedy.

                                              14
                                                                   No.    2014AP1870-CR.ssa

      Nonetheless, our analysis remains focused                             on    the
      arguments addressed by counsel . . . .11
      ¶129 The legal effect of the exigent circumstances analysis

in the lead opinion is that it allows a warrantless blood draw

when it is unclear from the record whether law enforcement had

time to secure a warrant.                Yet McNeely declares that no exigent

circumstances exist when there is time to secure a warrant.

      ¶130 Furthermore,            the     legal        effect      of     the     exigent

circumstances         analysis       in        the     lead     opinion     creates        an

impermissible per se rule that no warrant is needed to draw

blood for certain drivers.                It is unclear, however, to whom the

per se rule is applicable:                To drivers who are unconscious from

a   motor   vehicle     accident?          To        unconscious    drivers      of   motor

vehicles who are restricted to a 0.02 BAC?                       To seriously injured

hospitalized drivers?

      ¶131 In       other   words,       law    enforcement       doesn't      know   which

elements of the totality of the circumstances present in the

instant     case,    see    lead   op.,        ¶3,    are     essential   to     justify   a


      11
       See also Bailey v. State, 790 S.E.2d 98, 104 (Ga. Ct.
App. 2016):

      The State, however, produced no evidence of exigent
      circumstances.   For example, there was no evidence
      regarding how long the warrant process was expected to
      take and whether officers could have been seeking a
      warrant while Bailey was being transported to the
      hospital.   Thus, this could have been the situation
      imagined by the McNeely Court "in which the warrant
      process will not significantly increase the delay
      before the blood test is conducted because an officer
      can take steps to secure a warrant while the suspect
      is being transported to a medical facility by another
      officer."


                                               15
                                                      No.    2014AP1870-CR.ssa


warrantless blood draw.         The   lead opinion    provides no clear

direction for law enforcement to follow in the future.

      ¶132 In sum, as a matter of law, when both the State and

the defendant have not had the opportunity to offer evidence or

argument on the issue of exigent circumstances and this court

decides    the    case   on    the    dispositive    issue       of    exigent

circumstances, the defendant has not received a full and fair

due   process    evidentiary   or    appellate   hearing    on   his    Fourth

Amendment motion to suppress.         The instant case does not present

an extraordinary situation justifying departure from the rule

requiring the parties to present the issues.

      ¶133 In sum, as a matter of fact, the lead opinion cannot

condone the warrantless blood draw on exigent circumstances with

the sparse record of facts before it.12              As the Dane County




      12
       The   lead    opinion   also  considers   the   four-part
reasonableness test that applies once exigent circumstances are
established that was set forth in State v. Kennedy, 2014 WI 132,
¶17, 359 Wis. 2d 454, 856 N.W.2d 834. See lead op., ¶25.

     Because I conclude that there were no exigent circumstances
in the instant case, I do not respond to the lead opinion's
application of these factors. However, I am skeptical that the
instant case satisfies the fourth factor, that "the arrestee
presents no reasonable objection to the blood draw."    Kennedy,
359 Wis. 2d 454, ¶17. Because the defendant was unconscious, he
had no chance to object.

     The lead opinion's response seems to be that "the fourth
factor speaks to the reasonableness of the type of search
employed, not whether a warrant was required to conduct the
search." Lead op., ¶26 n.8.

                                                                 (continued)
                                      16
                                                              No.   2014AP1870-CR.ssa


Circuit Court observed in declaring the relevant provisions of

Wisconsin's implied consent law unconstitutional:

    All the police officer had to do to comply with the
    Fourth Amendment was to get a warrant. The defendant
    was not about to go anywhere but to the operating
    room.    The duty judge was a phone call away.
    Following McNeely, we routinely handle blood draw
    search warrants by telephone.    I respectfully suggest
    that procedure is more consonant with the Fourth
    Amendment than reading a form to an unconscious man
    and then ordering his blood to be taken.
                                        II

    ¶134 Because I conclude that exigent circumstances did not

render the warrantless blood draw constitutionally permissible,

I turn to considering the provisions of the implied consent law

regarding     unconscious     drivers.            According    to    the   statute,

unconscious     drivers     incapable        of     withdrawing      consent     are

presumed not to have withdrawn consent to the blood draw.                        See

Wis. Stat. § 343.305(3)(b).

    ¶135 The     State      did   not    solicit       any    testimony     at   the

suppression hearing that the defendant's consent to the blood




     Characterizing this factor as a reference to the type of
test conducted and asserting that the defendant raised no
objection to the type of search misses the point: The defendant
was unconscious. The lead opinion has no way of knowing whether
the defendant was "one of the few who on grounds of fear,
concern for health, or religious scruple might prefer some other
means of testing . . . . ."   Schmerber v. California, 384 U.S.
757, 771 (1966).    The lead opinion seems to concede that the
defendant did not impliedly consent to the search.

     I do not understand the reasoning of the lead opinion in
its footnote, but it seems internally inconsistent.


                                        17
                                                                 No.    2014AP1870-CR.ssa


draw was given in fact and was voluntary.                       The State relied on

the statute alone to prove the defendant's consent.

      ¶136 Adhering       to     the    reasoning        set    forth    in   State    v.

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

conclude that the statute's unconscious driver provisions are

unconstitutional because unconscious drivers have not freely and

voluntarily consented to the warrantless blood draw under the

Fourth Amendment.         Therefore, the warrantless blood test in the

instant case should be suppressed.

      ¶137 Throughout the course of the instant litigation, the

State has relied on consent as the applicable exception to the

warrant requirement to validate the warrantless blood draw.                           The

State's    position      is    that     the    defendant's       statutory     "implied

consent,"    deemed      to    have     occurred     before      the    defendant     was

arrested for suspected drunk driving, is voluntary consent for

purposes    of    the   consent       exception     to    the    Fourth    Amendment's

warrant requirement.

      ¶138 The parties disagree whether                   this    statutory      implied
consent satisfies the Fourth Amendment requirement of consent.

No federal or state cases are directly on point, and, as the

court of appeals' excellent certification memorandum explains,

tension exists in the case law.

      ¶139 Because a majority of the court has not written on the

constitutional issue, I do not address it at length.

      ¶140 Upon considering the parties' arguments, the reasoning

of   the   circuit      court,    and    case      law   from    the    United   States
Supreme Court and the            states, I conclude that the Wisconsin

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implied consent statute, applied to unconscious drivers, does

not provide an independent and valid consent exception to the

warrant requirement.

     ¶141 Warrantless searches are unreasonable, subject to a

few narrow exceptions.             State v. Artic, 2010 WI 83, ¶29, 327

Wis. 2d 392, 786 N.W.2d 430.                One such exception is a search

conducted pursuant to consent.                 The general rule is that the

State     must   prove     that   consent      was   "given    in    fact   by    words

gestures,     or    conduct"      and   that   the   consent    was    "voluntary."

Artic, 327 Wis. 2d 392, ¶30.

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

of historical fact" that an appellate court will uphold "if it

is not contrary to the great weight and clear preponderance of

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

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

must prove that the consent was given freely and voluntarily.

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

(consent must result from "an essentially free and unconstrained
choice").13        The State must meet this burden of proof by clear

     13
       In State v. Phillips, 218 Wis. 2d 180, 577 N.W.2d 794
(1998), this court provided a non-exclusive list of factors for
courts considering the voluntariness of consent to consider:

     (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
     "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
                                                     (continued)
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                                                               No.   2014AP1870-CR.ssa


and convincing evidence.            Artic, 327 Wis. 2d 392, ¶32.                     "The

determination of voluntariness is a mixed question of fact and

law    based   upon   an   evaluation        of    the   totality      of      all   the

surrounding      circumstances."          Artic,         327    Wis. 2d 392,         ¶32

(internal quotation marks omitted).

       ¶144 The consent required in Fourth Amendment cases must be

"'an    essentially      free     and   unconstrained          choice,'     not      'the

product of duress or coercion, express or implied.'"                      Artic, 327

Wis. 2d 392, ¶32 (quoted source omitted).

       ¶145 The State argues that drivers on a Wisconsin highway

have given "implied consent" to a warrantless blood draw; that

statutory      "implied    consent"      is       the    equivalent       of      actual

voluntary consent for Fourth Amendment purposes; and that the

Wisconsin implied consent statute is constitutional.                        According

to the State, McNeely does not govern this case because McNeely

concerns exigent circumstances, not consent.

       ¶146 The State asks this court to hold that the statutory

implied consent supplies constitutional                  consent for conscious
and unconscious drivers.           The State asks this court to overturn

State    v.    Padley,     2014    WI    App      65,    354    Wis. 2d 545,         849

N.W.2d 867, in which the court of appeals held that the implied


       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 (emphasis added).

State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392,                              786
N.W.2d 430 (citing Phillips, 218 Wis. 2d at 198-203).


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                                                                     No.   2014AP1870-CR.ssa


consent statute relating to conscious drivers does not violate

the Fourth Amendment because it provides the person with the

choice of providing actual consent to a blood draw or facing

license revocation.              Under Padley, the statutory implied consent

of drivers is consent to this choice, not consent to a blood

draw.       The State asks this court to overturn Padley because the

import      of    Padley    is    to   cast    doubt    on    whether      the   statute's

implied          consent     suffices         as   voluntary         consent       in    all

circumstances         for    Fourth     Amendment       purposes.14          The   State's

position is that the statutory implied consent is sufficient for

Fourth Amendment purposes in all circumstances.15

       ¶147 The       defendant        argues      that       Padley       was   correctly

decided.         He asserts that he did not consent in fact to a blood

draw    because      he     was    unconscious;        that    any     consent     was   not

       14
       The court of appeals explained that several cases,
including the following, may be inconsistent: State v. Neitzel,
95 Wis. 2d 191, 289 N.W.2d 828 (1980); State v. Wintlend, 2002
WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745; Village of Little
Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650
N.W.2d 891; State v. Piddington, 2001 WI. 24, 241 Wis. 2d 754,
623   N.W.2d 528;  State   v.   Disch,  129   Wis. 2d 225,  385
N.W.2d 140 (1986).    See State v. Howes, No. 2014AP1870-CR,
certification by Wisconsin Court of Appeals (Wis. Ct. App. Jan.
28, 2016).

     Thus, the court of appeals requested that this court issue
an authoritative decision clarifying the law.
       15
       The Padley court noted that, "at least in the context of
incapacitated drivers, 'implied consent' is a sufficient basis
on which to proceed with a warrantless search."      The Padley
court acknowledged there may be a tension between its decision
and the statutory language relating to incapacitated drivers.
See State v. Padley, 2014 WI App 65, ¶39 n.10, 354 Wis. 2d 545,
849 N.W.2d 867.


                                              21
                                                                  No.    2014AP1870-CR.ssa


voluntary      because     the    State's    interpretation             of    the   statute

makes      implied   consent      irrevocable;16       and       that    the    statutory

provisions      regarding        unconscious       drivers       are    the    functional

equivalent of a categorical rule rejected in McNeely.17

      ¶148 Relying on State v. Padley, 2014 WI App 65, ¶26, 354

Wis. 2d 545,      849      N.W.2d 876,      in    which     the    court       of   appeals

distinguished        between      implied    consent        (which      is    consent     to

choose between a blood draw and license revocation) and actual

voluntary      consent     for    Fourth    Amendment       purposes,         the   circuit

court correctly reasoned, in my opinion, that an unconscious

defendant did not give actual voluntary consent to a blood draw

and     that    statutory        implied    consent         is    analogous         to   the

categorical exigent circumstances declared invalid in McNeely.

      ¶149 Padley has statewide precedential effect.                           Wis. Stat.

§ 752.41(2).          We    should    not        overrule    precedent         without     a

compelling justification.             Birchfield v. North Dakota, 136 S.

Ct. 2160 (2016), a recent United States Supreme Court case,

supports Padley and the circuit court's decision in the instant


      16
       See Byars v. State, 336 P.3d 939, 945 (Nev. 2014) (a
"necessary element of consent is the ability to limit or revoke
it") (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("A
suspect may of course delimit as he chooses the scope of the
search to which he consents.")); State v. Halseth, 339 P.3d 368,
371 (Idaho 2014) ("Inherent in the requirement that consent be
voluntary is the right of the person to withdraw that
consent.").
      17
        See State v. Wulff, 337 P.3d                       575, 582 (Idaho 2014)
(declaring that Idaho's implied consent                   law, which did not allow
drivers   to   revoke  consent   to   a                    blood   draw,  was   an
unconstitutional per se exception to the                  Fourth Amendment).


                                            22
                                                                      No.    2014AP1870-CR.ssa


case.     In Birchfield, the United States Supreme Court recognized

that    the    longstanding        rule    permitting          a    search        incident     to

arrest allows warrantless breath tests.                       Nevertheless, the Court

recognized that blood draws are significant intrusions into the

body     and     concluded        that    the      Fourth          Amendment        does       not

categorically permit warrantless blood draws as valid incident

to an arrest for drunk driving.                  Birchfield, 136 S. Ct. at 2184.

Referring      to   McNeely,        the    Court        explained        that      "[n]othing

prevents the police from seeking a warrant for a blood test when

there     is     sufficient        time    to      do     so       in       the    particular

circumstances       or     from     relying      on     the    exigent        circumstances

exception      to   the     warrant       requirement          when      there      is     not."

Birchfield, 136 S. Ct. at 2184.

       ¶150 If      the     United       States       Supreme        Court        refuses       to

categorically permit a warrantless blood draw premised on the

well-established          search    incident       to    arrest         exception        to   the

warrant requirement, a blood draw based on a statutorily imputed

implied       consent      surely     cannot       pass       muster.             Birchfield,
therefore,      supports     the     notion       that    warrantless             blood    draws

justified      by    only    statutory          implied        consent        (rather         than

voluntary consent in fact) are unreasonable under the Fourth

Amendment.       Birchfield also supports the notion that such blood

draws,    especially        regarding      an     unconscious           driver,      lead       to

impermissible per se exceptions to the Fourth Amendment.

       ¶151 In sum, in addition to my conclusions regarding the

errors in the lead opinion in relying on exigent circumstances,
I conclude that the warrantless blood test in the instant case

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is not the product of actual consent in fact made freely and

voluntarily.

       ¶152 Accordingly, I conclude that the blood test results

should be suppressed as a violation of the Fourth Amendment.

       ¶153 For      the     reasons   set    forth,    I     write   separately    to

affirm the order of the circuit court suppressing evidence of

the blood test.

       ¶154 I    am    authorized      to     state    that    Justice    ANN     WALSH

BRADLEY joins this dissent and that Justice DANIEL KELLY joins

Part    II      of    this     dissent       insofar    as     it     discusses    the

constitutionality of Wis. Stat. § 343.305(3)(b).




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