                                                                          2017 WI 73

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:              2015AP1261-CR
COMPLETE TITLE:
                       State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Navdeep S. Brar,
                                 Defendant-Appellant-Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 371 Wis. 2d 564, 884 N.W.2d 535
                                      (2016 – Unpublished)

OPINION FILED:         July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 12, 2017

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

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

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
by   Tracey       A.   Wood,    Sarah     M.   Schmeiser,    and   Tracey    Wood   &
Associates, Madison, and an oral argument by Sarah M. Schmeiser.


       For the plaintiff-respondent, there was a brief by David H.
Perlman,        assistant      attorney    general,    and    Brad   D.     Schimel,
attorney general, and an oral argument by David H. Perlman.
                                                                               2017 WI 73
                                                                       NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2015AP1261-CR
(L.C. No.   2014CT776)

STATE OF WISCONSIN                                :              IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,                                           FILED
      v.                                                                JUL 6, 2017
                                                                          Diane M. Fremgen
Navdeep S. Brar,                                                       Clerk of Supreme Court

             Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                         Affirmed.



      ¶1     PATIENCE      DRAKE     ROGGENSACK,          C.J.         We     review       an

unpublished     decision    of     the   court    of     appeals1        affirming       the

conviction      of    Navdeep      Brar    (Brar)         for      operating          while
intoxicated,      third     offense       in     violation         of        Wis.     Stat.

§ 346.63(1)(a)       (2014-15)2    and    an   order      of     the     circuit      court

denying Brar's motion to suppress the results of a blood test.3
      1
       State v. Brar, No. 2015AP1261-CR, unpublished slip op.
(Wis. Ct. App. July 7, 2016).
      2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
      3
          The Honorable John W. Markson of Dane County presided.
                                                                             No.     2015AP1261-CR



      ¶2      Brar moved to suppress the results of a blood test on

the       grounds       that       it        was       an        unconstitutional           search.

Specifically, he argued that he did not consent to having his

blood drawn, and therefore, the officer was required to obtain a

warrant.      The circuit court denied Brar's motion and found that

Brar had consented.            On appeal, Brar argues that, even if he had

consented, his consent was not given voluntarily.

      ¶3      We conclude that the circuit court's finding that Brar

consented        to    the     blood         draw      was        not   clearly          erroneous.

Additionally,         we   conclude          that      Brar's      consent     was       voluntary.

Accordingly, we affirm the decision of the court of appeals.

                                        I.    BACKGROUND

      ¶4      A City of Middleton police officer stopped Brar for

driving over the speed limit.                          During the stop, the officer

conducted field sobriety tests, which Brar failed.                                       Brar then

submitted to a preliminary breath test and blew a .19.                                          As a

result, Brar was arrested.4

      ¶5      After arresting Brar, the officer transported him to
the   police          department,        where         the        officer    read        Brar    the

"informing the accused form."                       While being read the form, Brar

repeatedly interrupted the officer with questions or comments

related     to    the      form.        As     part         of    "informing      the      accused"

process,      the      officer      asked          Brar      to    submit    to      a     chemical

evidentiary test.            The precise words Brar said in response are

      4
       Brar does not contest the validity of the initial stop or
his subsequent arrest.


                                                   2
                                                                                   No.    2015AP1261-CR



disputed.            However,     the       officer         thought           Brar       provided    an

affirmative response, and therefore believed that Brar agreed to

submit to a blood draw.

      ¶6      After agreeing to submit to an evidentiary test, Brar

asked several questions.                   One of these questions was what kind

of test would be conducted, and the officer responded he would

conduct a blood draw.             Brar then asked the officer if he needed

a   warrant      to     conduct       a    blood         draw.          In    response         to   this

question,       the     officer    shook         his       head     as       if    to    respond    no,

indicating that he did not need a warrant.

      ¶7      Brar      was    taken       to    a       hospital       where       his    blood     was

drawn.      The       test     results          showed      that        Brar's       blood     alcohol

content    was       .186,     well       above       the       legal    limit       to    operate    a

vehicle.        Brar was charged with operating while intoxicated,

third    offense        in    violation         of       Wis.    Stat.       § 346.63(1)(a)          and

operating        a      motor     vehicle                with      a      prohibited           alcohol

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

      ¶8      Brar moved to suppress the results of the blood test.
The circuit court held a hearing to determine whether Brar had

consented to the blood draw.

      ¶9      At      the     hearing,          the      officer        testified          that     Brar

responded "of course" in response to the question "Will you

submit     to      an    evidentiary             chemical          test       of        your   blood?"

According to the officer, Brar then gave "a statement similar to

he didn't want to have his license revocated."                                    As a result, the

officer believed that Brar had consented to the blood draw.


                                                     3
                                                                     No.   2015AP1261-CR



Moreover, the officer testified that Brar did not resist or

hesitate to give blood once he was transported to the hospital.

    ¶10     The circuit court found that Brar had consented to a

blood draw.       The circuit court relied on the testimony of the

officer, which the court found credible.                    And, the circuit court

stated     that    nothing        in     the       audiovisual       recording       was

inconsistent with the officer's testimony; specifically, that

the circuit court heard Brar say "of course," which corroborated

the officer's testimony.               For these reasons, the circuit court

denied   Brar's    motion    to    suppress.5          After   the    circuit      court

denied the motion, Brar entered a no contest plea to operating

while    intoxicated,     third    offense        in   violation     of    Wis.    Stat.

§ 346.63(1)(a).

    ¶11     The   court     of    appeals        affirmed    the   circuit       court's

denial    of   Brar's     motion       to       suppress.      First,      the     court

determined that the circuit court's finding that Brar consented

to have his blood drawn was not clearly erroneous.                          Next, the

court concluded that Brar's consent was voluntary.                          The court
reasoned that the officer was correct in shaking his head no to

indicate he did not need a warrant because Brar had already

consented.

    5
       Brar moved for reconsideration of the circuit court's
denial of his motion to suppress after having the audiovisual
recording of his interaction with the officer transcribed. Brar
noted that the individual who transcribed the recording did not
hear Brar say the words "of course."          The circuit court
concluded that Brar did not meet the criteria for a motion for
reconsideration, and therefore denied the motion.


                                            4
                                                                       No.     2015AP1261-CR



    ¶12   This court granted Brar's petition for review, and we

affirm the court of appeals.

                               II.    DISCUSSION

                            A. Standard of Review

    ¶13   "Whether     a    defendant         has    consented        to   a    search    is

initially a question of historic fact."                    State v. Johnson, 2007

WI 32, ¶56, 299 Wis. 2d 675, 729 N.W.2d 182 (Roggensack, J.,

dissenting)    (citation     omitted).              "We   will     uphold       a    circuit

court's   finding      of    historic         fact        unless      it     is      clearly

erroneous."    Id. (citing State v. Sykes, 2005 WI 48, ¶12, 279

Wis. 2d 742, 695 N.W.2d 277).             Next, we "independently apply the

constitutional principles to the facts as found to determine

whether the standard of voluntariness has been met."                                State v.

Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998).

    ¶14   In the present case, we apply this two-step test to

determine if Brar voluntarily consented to a blood draw.

               B. Fourth Amendment, General Principles

    ¶15   "The      Fourth      Amendment            to      the       United         States
Constitution     and   Article       I,    Section         11    of    the        Wisconsin

Constitution protect '[[t]he right of the people to be secure in

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

searches and seizures.'"6        State v. Tullberg, 2014 WI 134, ¶29,

359 Wis. 2d 421, 857 N.W.2d 120 (quoting State v. Robinson, 2010

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


                                          5
                                                                              No.    2015AP1261-CR



WI   80,     ¶24,      327   Wis. 2d 302,       786       N.W.2d 463).              "The     Fourth

Amendment does not proscribe all state-initiated searches and

seizures; it merely proscribes those which are unreasonable."

Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citing Illinois v.

Rodriguez, 497 U.S. 177 (1990)).

       ¶16       "A warrantless search is presumptively unreasonable."

Tullberg, 359 Wis. 2d 421, ¶30 (quoting State v. Henderson, 2001

WI 97, ¶19, 245 Wis. 2d 345, 629 N.W.2d 613).                                 "But there are

certain          'specifically            established          and           well-delineated'

exceptions        to     the     Fourth    Amendment's         warrant         requirement."7

State       v.    Williams,        2002    WI       94,    ¶18,   255        Wis. 2d 1,          646

N.W.2d 834 (citing               Katz v. United States, 389 U.S. 347, 357

(1967)).            "One     well-established             exception      to         the     warrant

requirement         of     the    Fourth    Amendment        is     a    search           conducted

pursuant to consent."               Phillips, 218 Wis. 2d at 196.                         And, "it

is no doubt reasonable for the police to conduct a search once

they have been permitted to do so."                        Jimeno, 500 U.S. at 250-51

(citing Schneckloth v. Bustamonte, 412 U.S. 281, 219 (1973).
       ¶17       It is well-established that consent "may be in the

form of words, gesture, or conduct."                       Phillips, 218 Wis. 2d 180,

¶24;       see    also     State    v.     Tomlinson,        2002       WI    91,         ¶37,   254

Wis. 2d 502, 648 N.W.2d 367; United States v. Hylton, 349 F.3d

781, 786 (4th Cir. 2003) ("Consent may be inferred from actions


       7
       "'[T]he taking of a blood sample . . . is a search' under
the Fourth Amendment."     State v. Kozel, 2017 WI 3, ¶40, 373
Wis. 2d 1, 889 N.W.2d 423.


                                                6
                                                                         No.   2015AP1261-CR



as    well    as     words.").        Through       conduct,       an    individual        may

impliedly consent to be searched.                     United States v. Lakoskey,

462 F.3d 965, 973 (8th Cir. 2006), as amended on reh'g (Oct. 31,

2006) ("Voluntary consent may be. . . implied."); United States

v. Wilson, 914 F. Supp. 2d 550, 558 (S.D.N.Y. 2012) ("Consent

may    be    granted       either    explicitly       or     implicitly."        (citation

omitted)); see also Morgan v. United States, 323 F.3d 776, 781

(9th Cir. 2003) (reasoning, "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");          State    v.

Hanson, 34 P.3d 1, 5 (Haw. 2001), as amended (Nov. 7, 2001)

("[E]ven      in     the    absence     of    an    express        indication,      implied

consent to an airport security search may be imputed from posted

notices.").

       ¶18     Consistent with these principles, "consent to a search

need not be express but may be fairly inferred from context."

Birchfield      v.     North      Dakota,     136    S.    Ct.     2160,    2185    (2016).

Therefore, "a search may be lawful even if the person giving
consent does not recite the talismanic phrase:                             'You have my

permission to search.'"               United States v. Buettner-Janusch, 646

F.2d 759, 764 (2d Cir. 1981).

       ¶19     Prior cases from the court of appeals could be read as

casting doubt on the maxim that a person may consent through

conduct or by implication.              For example, the court of appeals in

Padley       reasoned      that     consent    that       arises    under      Wisconsin's

implied consent law is different from consent that is sufficient
in and of itself under the Fourth Amendment.                            State v. Padley,
                                              7
                                                                    No.    2015AP1261-CR



2014       WI    App   65,   ¶25,      354   Wis. 2d    545,   849        N.W.2d     867.

Specifically, the court reasoned that "actual consent to a blood

draw is not 'implied consent,' but rather a possible result of

requiring the driver to choose whether to consent under the

implied consent law."            Id.    This reasoning implies a distinction

between implied consent and consent that is sufficient under the

Fourth Amendment.            Such a distinction is incorrect as a matter

of law.8

       ¶20       Stated   more   fully,      and   contrary    to    the     court    of

appeals' reasoning in Padley, consent can manifest itself in a

number      of    ways,   including      through   conduct.         Cf.    Florida    v.

Jardines, 133 S. Ct. 1409, 1415-16 (2013); Marshall v. Barlow's,

Inc., 436 U.S. 307, 313 (1978).                  The use of the word "implied"

in the idiom "implied consent" is merely descriptive of the way

in which an individual gives consent.                  It is no less sufficient

consent than consent given by other means.

       ¶21       An individual's consent given by virtue of driving on

Wisconsin's roads, often referred to as implied consent, is one
incarnation of consent by conduct.                 Wis. Stat. § 343.305(2) (An


       8
       Of course, other constitutional rights may involve
different considerations.    For example, the United States
Supreme Court reasoned:   "There is a vast difference between
those rights that protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment.   Nothing, either in the
purposes behind requiring a 'knowing' and 'intelligent' waiver
of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the
constitutional guarantee against unreasonable searches and
seizures." Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973).


                                             8
                                                                               No.    2015AP1261-CR



individual who        "drives or operates a motor vehicle upon the

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

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

urine.").         "By        reason       of     the      implied          consent       law,    a

driver . . . consents             to     submit     to          the     prescribed       chemical

tests."9     State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828

(1980); see also State v. Reitter, 227 Wis. 2d 213, 225, 595

N.W.2d     646   (1999)       ("The      implied         consent         law    provides      that

Wisconsin drivers are deemed to have given implied consent to

chemical     testing     as       a    condition       of       receiving       the     operating

privilege.").           And,      as     a     plurality          of     the    Supreme      Court

explained in Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013),

"all 50 States have adopted implied consent laws that require

motorists, as a condition of operating a motor vehicle within

the State, to consent to BAC testing if they are arrested or

otherwise    detained        on       suspicion     of      a    drunk-driving          offense."

The "consent" to which this court in Neitzel and the Supreme


     9
       Our previous cases discussing implied consent clearly
establish that an individual has already consented at the time
an officer reads a driver the Informing the Accused form. See,
e.g., State v. Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828
(1980)   ("The  entire   tenor   of  the   implied consent  law
is . . . that consent has already been given and cannot be
withdrawn without the imposition of the legislatively imposed
sanction of mandatory suspension."). "The specific objective of
Wis. Stat. § 343.305(4) within the implied consent statutory
scheme is to 'advise the accused about the nature of the
driver's implied consent.'"    State v. Piddington, 2001 WI 24,
¶17, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting State v. Reitter,
227 Wis. 2d 213, 225, 595 N.W.2d 646 (1999)).


                                                9
                                                              No.   2015AP1261-CR



Court in McNeely refer is consent sufficient under the Fourth

Amendment——not some amorphous, lesser form of consent.                      See,

e.g., People v. Hyde, 393 P.3d 962, 968 (Colo. 2017) ("Hyde's

statutory consent also satisfied the consent exception to the

Fourth    Amendment   warrant     requirement.       This   conclusion     flows

from recent Supreme Court precedent.").

     ¶22    Furthermore,    the    Supreme    Court's   assertion      that   an

individual's consent to a search under the Fourth Amendment "may

be   fairly   inferred     from    context"    was    given    with    specific

reference to an implied consent law.             Birchfield, 136 S. Ct. at

2185 (reasoning, "consent to a search need not be express but

may be fairly inferred from context. . . . 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.").                  Of course,

the "context" to which the Supreme Court was referring was an

individual driving on the roads of a state that had enacted an

implied consent law.
     ¶23    Therefore, lest there be any doubt, consent by conduct

or implication is constitutionally sufficient consent under the

Fourth Amendment.10      We reject the notion that implied consent is

a lesser form of consent.          Implied consent is not a second-tier

form of consent; it is well-established that consent under the


     10
       We do not address if there always must be an opportunity
to withdraw consent before a blood draw is undertaken such as is
currently provided in Wis. Stat. § 343.305(3).


                                      10
                                                                            No.    2015AP1261-CR



Fourth       Amendment          can    be     implied       through        an     individual's

conduct.11

       ¶24    When we are asked to affirm a finding that consent was

given,      whether        express      or    implied,         we   also    must     determine

whether the consent was voluntary.                        See generally United States

v.    Griffin,       530    F.2d      739,    743       (7th     Cir.    1976)     ("Once    the

existence       of     a        consent      by        conduct      is     determined,       its

voluntariness         must       be    examined.").             Only     voluntarily        given

consent will pass constitutional muster.                            Schneckloth, 412 U.S.

at 222.       "Consent is not voluntary if the state proves 'no more

than acquiescence to a claim of lawful authority,'" State v.

Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430 (quoting

Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)), or if

the    consent       was    the       product     of     duress     or     coercion    by     law

enforcement.         Schneckloth, 412 U.S. at 227.

       ¶25    There is no single fact, the absence or presence of

which, determines whether consent was voluntarily given.                                Id. at

226.         Rather,       in    order       to    determine        whether       consent    was
voluntarily given, the totality of the circumstances of each

individual case must be examined.                       Id. at 233.        In examining the

totality of the circumstances, "we look at the circumstances


       11
       In the present case, Brar was conscious when he was read
the Informing the Accused form. And, under Wisconsin's implied
consent law, conscious drivers are statutorily given an
opportunity to withdraw consent.     However, individuals that
choose to withdraw their consent are subject to penalties for
withdrawing consent. Wis. Stat. § 343.305(9) & (10).


                                                  11
                                                                       No.   2015AP1261-CR



surrounding       the    consent     and       the        characteristics        of   the

defendant."12      Artic, 327 Wis. 2d 392, ¶33 (citing Phillips, 218

Wis. 2d at 197-98).         Even in implied consent cases, we consider

the totality of the circumstances at the time of the blood draw

to    determine     if    an     individual's             previously-given       consent

continues to be voluntary at that time.

       ¶26   The State has the burden of proving that the consent

was freely and voluntarily given.                  Schneckloth, 412 U.S. at 222.

However, the State need not demonstrate that consent was given

knowingly or intelligently.             See id. at 241 ("Nothing, either in

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

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

a    requirement   suggests      that    it       ought    to   be    extended   to   the

constitutional      guarantee       against         unreasonable           searches   and

       12
       As we explained in State v. Artic, 2010 WI 83, 327
Wis. 2d 392, 786 N.W.2d 430, we consider numerous factors to
determine whether an individual voluntarily consented:

       (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
       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.

Id., ¶33.


                                          12
                                                                     No.    2015AP1261-CR



seizures."); see also id. at 235 ("Our cases do not reflect an

uncritical demand for a knowing and intelligent waiver in every

situation where a person has failed to invoke a constitutional

protection.").

    ¶27     Contrary to Supreme Court precedent, decisions from

the court of appeals have required the State to prove consent

was given knowingly and intelligently.                       See, e.g., Padley, 354

Wis. 2d 545, ¶64 (reasoning there must be "clear and positive

evidence    the   search      was     the   result      of    a   free,    intelligent,

unequivocal       and        specific       consent"         (internal       quotations

omitted)); State v. Giebel, 2006 WI App 239, ¶12, 297 Wis. 2d

446, 724 N.W.2d 402; see also Neitzel, 95 Wis. 2d at 201.                             The

Supreme     Court       in      Schneckloth            rejected     precisely       this

requirement.      As we interpret our constitution consistent with

the Fourth Amendment, we withdraw any language from these cases

that requires that consent to a search be given knowingly or

intelligently.

                              C. Application to Brar
    ¶28     In the present case, we must determine whether Brar

consented, and if he did, whether his consent was voluntary.

    ¶29     First,      Brar     consented         under       Wisconsin's      implied

consent law.      He availed himself of the roads of Wisconsin, and

as a result, he consented through his conduct to a blood draw.

Wisconsin    Stat.      §    343.305(2)      (an   individual        who    "drives   or

operates    a   motor       vehicle     upon     the    public     highways    of   this

state . . . is deemed to have given consent to one or more tests
of his or her breath, blood or urine.").                          Any analysis of a
                                            13
                                                                     No.    2015AP1261-CR



driver's       consent      under     Wisconsin's    implied    consent       law    must

begin with this presumption.

       ¶30     Aside from Brar's consent under the implied consent

law,     the    circuit      court     found     that   Brar   consented        by    his

responses       to    the    officer's     questions.13        The    circuit        court

discussed an audiovisual recording of the officer's interaction

with Brar as well as the officer's testimony.                              The evidence

supports the circuit court's finding, and we conclude it was not

clearly erroneous.

       ¶31     The officer testified that Brar responded "of course"

in response to the question "Will you submit to an evidentiary

chemical test of your blood?"                  According to the officer, Brar

then gave "a statement similar to he didn’t want to have his

license revocated."              As a result, the officer believed Brar

affirmatively agreed to the blood draw.

       ¶32     The circuit court found the officer's "testimony to be

credible, that Mr. Brar said, when asked more than once, the

officer said I need to know, I need you to answer yes or no,
will you submit to the test?              Mr. Brar said, of course, he would

submit.        And the officer said that Mr. Brar said, because he

didn't      want     to   have   his    license     revoked,   or     words    to    that

effect."       A circuit court's finding of fact that is based on the

credibility of a witness is a persuasive factor in assessing

whether      the     finding     is    clearly    erroneous.         See    Wis.     Stat.

       13
       The circuit court stated:                 "I do find as a matter of fact
that Mr. Brar did give consent."


                                           14
                                                                     No.    2015AP1261-CR



§ 805.17(2) ("Findings of fact shall not be set aside unless

clearly     erroneous,      and     due    regard       shall   be    given     to    the

opportunity of the trial court to judge the credibility of the

witnesses.").         And, we have no reason to question the veracity

of the officer's testimony in the present case.

    ¶33        Moreover, the circuit court found, and we agree, that

the audiovisual recording of the interaction corroborates the

testimony of the officer.                Nothing in the recording rebuts the

officer's      testimony     as     to    Brar's    statements.            Indeed,    the

officer's       testimony    that        Brar    said     "of   course"      and     then

something to the effect of "I do not want my license revoked" is

supported by the recording.

    ¶34        Accordingly, Brar first consented through his conduct;

specifically, he consented by driving on the roads of Wisconsin.

The circuit court found he later re-affirmed his consent when he

was given the statutory opportunity to withdraw consent at the

officer's reading of the Informing the Accused form to him.

Based     on    the     officer's    testimony          as   corroborated       by    the
recording of the officer's interaction with Brar, the circuit

court's finding that Brar consented was not clearly erroneous.

    ¶35        Having    concluded        that     Brar      consented,       we     must

determine whether his consent was voluntary.                     We conclude that

Brar voluntarily, albeit impliedly, consented when he chose to

drive on Wisconsin roads.            And, his subsequent statement to the

officer, re-affirming his previously-given consent was likewise

voluntary.        Brar    does    not     argue    otherwise;        in    essence,   he


                                           15
                                                                     No.   2015AP1261-CR



contends     that    the    voluntariness            of   his    consent   dissipated

sometime after he had already consented.

       ¶36   After consenting to the blood draw, Brar asked the

officer if he needed to obtain a warrant to draw his blood.                         The

officer shook his head no in response.                     However, the officer's

response did not vitiate the voluntariness of Brar's consent.

       ¶37   After all, the officer did not need a warrant because

Brar already had consented.              And, the officer was not obligated

to explain further than he did; for example, an individual need

not be informed of the opportunity to withdraw consent under

Wis. Stat. §        343.305(3) in order for consent to be voluntary.

See Schneckloth, 412 U.S. at 229 (reasoning, that requiring the

State to "affirmatively prove that the subject of the search

knew that he had a right to refuse consent, would, in practice,

create serious doubt whether consent searches could continue to

be   conducted").       Even      if    the    import     of    Brar's   question   was

unclear to the officer, "an officer need not clarify whether an

ambiguous statement is meant to withdraw otherwise valid consent
to search."     See State v. Wantland, 2014 WI 58, ¶47, 355 Wis. 2d

135,   848   N.W.2d     810.           Accordingly,       the    officer   accurately

responded to Brar's question and had no obligation to supply

Brar with further information.

       ¶38   However,      even   if     the       officer's    response    to   Brar's

questions were unclear, it was insufficient to vitiate Brar's

previously-given and subsequently re-affirmed voluntary consent.

The voluntariness of consent is examined under the totality of
the circumstances.         And, the context in which Brar asked whether
                                              16
                                                                        No.    2015AP1261-CR



the   officer      needed     a   warrant      suggests      that      Brar    voluntarily

consented despite the arguably unclear nature of the officer's

response.       Brar's question about a warrant was not an isolated

question; Brar asked the officer numerous questions throughout

the    encounter,      many       of   which       pertained     to    aspects        of   the

Informing the Accused form.                   He also repeatedly lamented his

guilt.       In the context of his interaction with the officer,

Brar's    one      question       about      the    necessity     of    a     warrant      was

insufficient to render his consent involuntary.

       ¶39   Moreover,      Brar       was    informed      of   his    opportunity         to

withdraw consent to a blood draw when the officer read him the

Informing the Accused form.                  The officer asked him to provide a

yes or no answer to the question of whether he would consent to

a chemical evidentiary test.                 Earlier, the officer had explained

the consequences of refusing a blood draw to Brar.                            As a result,

Brar knew that he had the option of refusing a blood draw, yet

he did not refuse.            See United States v. Mendenhall, 446 U.S.

544, 559 (1980) (reasoning, "[because] the officers themselves
informed     the    respondent         that    she    was   free       to    withhold      her

consent      substantially         lessened         the   probability         that      their

conduct could reasonably have appeared to her to be coercive").

And, at no point did Brar as much as suggest an unwillingness to

have his blood drawn.

       ¶40   Finally,       Brar       did    not    merely      acquiesce       to     being

searched.       The cases in which courts have concluded consent was

involuntary based on an individual's "mere acquiescence" are of
no    relevance      to   this     case.           "[A]cquiescence          causes     Fourth
                                              17
                                                                             No.   2015AP1261-CR



Amendment     problems       when     the    acquiescence          is    made      to   claimed

lawful      authority      to    search,      when      no    such      lawful       authority

exists."           Johnson,     299       Wis. 2d 675,         ¶69      (Roggensack,          J.,

dissenting) (citing Bumper, 391 U.S. at 548-49).                             Brar asked the

officer a straightforward question:                     whether the officer needed

a warrant to conduct a blood draw.                     The officer, at that point,

answered the question accurately; he did not need a warrant

because Brar had consented.                 In contrast to the cases in which

courts     have     concluded       an    individual         merely     acquiesced          to   a

search, the officer here did not assert that he would conduct a

blood draw with or without Brar's consent.                         See Bumper, 391 U.S.

at 548 ("The issue thus presented is whether a search can be

justified as lawful on the basis of consent when that 'consent'

has been given only after the official conducting the search has

asserted that he possesses a warrant.").

      ¶41     In    sum,    Brar's       "will    was    [not]       overborne"         by    the

officer.      See Schneckloth, 412 U.S. at 226.                      After examining the

totality of the circumstances, we conclude that Brar voluntarily
consented to a blood draw.

                                    III.    CONCLUSION

      ¶42     In    light     of    the     foregoing,        we     conclude        that     the

circuit court's finding that Brar consented to the blood draw

was   not    clearly       erroneous.         Additionally,             we    conclude       that

Brar's      consent    was      voluntary.         Accordingly,              we    affirm     the

decision of the court of appeals.

      By    the    Court.—The       decision      of    the     court        of    appeals       is
affirmed.
                                             18
                                                  No.    2015AP1261-CR.rgb


    ¶43    REBECCA GRASSL BRADLEY, J.       (concurring).        I concur

with the court's mandate to affirm the decision of the court of

appeals,   and   I   join   Part   I   of   Justice     Daniel    Kelly's

concurrence.




                                   1
                                                                     No.    2015AP1261-CR.dk


       ¶44    DANIEL KELLY, J.                (concurring).         I join the court's

mandate and the opinion to the extent it discusses Mr. Brar's

express consent to the blood test while he was present in the

police       station.         I    cannot      join   any     part     of    the   court's

discussion of implied consent because it misunderstands how our

implied consent law functions, it says "consent" implied by law

is something voluntarily given when such a thing is impossible,

it     introduces       a     destructive           new     doctrine        that   reduces

constitutional guarantees to a matter of legislative grace, and

it fails to properly distinguish between (a) express consent,

(b) consent implied by conduct, and (c) "consent" implied by

law.       And all of this was entirely gratuitous——as the court's

own opinion demonstrates, implied consent need have no part in

our resolution of the case.                   Because this last point describes

where the court's opinion should have ended, I will begin there.

                                                I

       ¶45    There     was       no   need    to   march    into    the    minefield    of

"consent" implied by law.1                    Mr. Brar asked us to review his
conviction for two reasons.                    First, he says he did not give

express consent to chemical testing of his blood.                             And second,

he says he only acquiesced to the blood test because Officer

Michael Wood said he did not need a warrant to obtain a blood

       1
       When speaking of the implied consent provided by Wis.
Stat. § 343.305(2), I will refer to "'consent' implied by law."
I do this to distinguish it from consent implied by conduct.
And I put "consent" in quotes because, as I discuss infra,
"consent" implied by law is not actually consent at all, and is
incapable of authorizing a law enforcement officer to perform a
blood test.


                                                1
                                                                      No.    2015AP1261-CR.dk


sample.       The presenting questions, therefore, called for us to

review      what    Mr.      Brar    said    and——if       it     amounted     to     express

consent——determine whether his consent was voluntary.                                State v.

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

determine      if     the    consent       exception      is     satisfied,     we    review,

first, whether consent was given in fact by words, gestures, or

conduct; and, second whether the consent given was voluntary.").

       ¶46    We    are     not     considering     Mr.     Brar's       interaction        with

Officer Wood in the first instance, of course.                           We are reviewing

the circuit court's findings of fact, which we leave undisturbed

unless they are clearly erroneous.                        Phelps v. Physicians Ins.

Co.    of    Wis.,      Inc.,       2009     WI 74,       ¶34,     319    Wis. 2d 1,         768

N.W.2d 615.         According to the circuit court, Officer Wood asked

Mr. Brar whether he would submit to an evidentiary chemical test

of    his    blood.         The   record     reflects      that     Mr.     Brar     said   "of

course," and that he didn't want to lose his driving privileges.

Our review revealed nothing clearly erroneous about the circuit

court's findings, and so we accepted that Mr. Brar expressly
consented to a blood test.

       ¶47    We    promptly,         and    properly,         dispatched      Mr.     Brar's

argument that his consent was not voluntary.                             According to Mr.

Brar, when Officer Wood told him he did not need a warrant to

conduct      the    blood     test,    he    made     a    misrepresentation          of    law

sufficient to negate the voluntariness of his consent.                                      But

Officer Wood's statement came after Mr. Brar's consent, which

made his statement correct——he didn't need a warrant because Mr.
Brar had consented to the search.                      See Artic, 327 Wis. 2d 392,

                                               2
                                                                          No.    2015AP1261-CR.dk


¶29 (One well-established exception to the warrant requirement

is a search conducted pursuant to consent.).                              Thus, there was no

misrepresentation           to    cast      doubt       on   the    voluntariness            of    Mr.

Brar's    consent.            Mr.     Brar       did    not     argue      his       consent       was

involuntary for any other reason, so we properly concluded his

consent was constitutionally valid.

      ¶48      That    should         have       been    the       end    of     our       opinion.

Traditionally, when the presenting questions resolve the matter,

we declare our treatment of the case complete at that point.

See   Black     v.     City      of   Milwaukee,         2016      WI 47,       ¶39       n.24,    369

Wis. 2d 272,         882   N.W.2d 333,           cert.       denied      sub    nom.      Milwaukee

Police Ass'n v. City of Milwaukee, 137 S. Ct. 538 (2016) ("We do

not   address     these       issues        because      they      are    not     necessary         to

resolve this case"); see also State v. Cain, 2012 WI 68, ¶37

n.11,    342    Wis. 2d 1,            816    N.W.2d 177         ("[A]n         appellate         court

should decide cases on the narrowest possible grounds." (quoting

Md.     Arms    Ltd.       P'ship       v.       Connell,       2010      WI 64,          ¶48,     326

Wis.2d 300, 786 N.W.2d 15)); Hull v. State Farm Mut. Auto. Ins.
Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a

general rule, when our resolution of one issue disposes of a

case, we will not address additional issues.").                                 Experience has

taught us it is usually wise to leave peripheral questions to a

future case in which they return as dispositive issues.                                          There

are   good     reasons      to    honor      that       experience.            The    process      of

reasoning       from       premises         to    conclusion          imposes         a    rigorous

discipline on our research, deliberation, and analysis that is
absent when we opine on matters beyond those necessary to our

                                                  3
                                                                            No.    2015AP1261-CR.dk


judgment.            The   court's     opinion           validates     the        wisdom    of     our

tradition.

                                                   II

       ¶49       Not   only     did        we     boldly       march   into        the     "implied

consent" minefield, we did it blindfolded.                             Our implied consent

statute,        Wis.    Stat.      § 343.305           (2013-14),2     is     not    a    model     of

clarity.         That should have driven us to a searching, wide-eyed

perusal         of   the   statute's            language    to    help      us      through       this

fraught territory.                 Instead, with the benefit of just three

cursory sentences addressing the statute's terms, we announced

that       it    provides       a     real-life,           constitutionally-sufficient,

consent to a blood test:                         "Brar consented under Wisconsin's

implied         consent     law.      He        availed    himself       of       the     roads     of

Wisconsin, and as a result, he consented through his conduct to

a blood draw."             Majority op., ¶29.               That, however, is not what

the statute does.

       ¶50       The question the court answered, but did not analyze,

is     whether         "implied       consent"           actually      authorizes           a      law
enforcement officer to obtain a sample of a driver's blood.                                         To

discover         whether      it    does,         we    must     consider         three     of     the

statute's functional components.                         The first addresses itself to

its eponymous subject——"consent" implied by law (I will call

this the "Implied Consent Component").                           Wis. Stat. § 343.305(2).

The second component governs a law enforcement officer's request

for a blood test (the "Test Authorization Component").                                            Wis.

       2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                                   4
                                                                 No.    2015AP1261-CR.dk


Stat. § 343.305(3)-(4).3           The third covers the consequences for

refusing       an    officer's     request     for      a    test      (the   "Penalty

Component").          Wis.   Stat.    § 343.305(9)-(10).               With   but   one

exception that is not relevant here, there is no operational

connection between the Implied Consent Component and the Test

Authorization Component.4

       ¶51    By    its   own    terms,   the        Implied    Consent       Component

isolates itself from the authorization the State must obtain to

collect a sample of the driver's blood.                      In relevant part, it

says this:

       Implied Consent.      Any person who . . . drives or
       operates a motor vehicle upon the public highways of
       this state . . . is deemed to have given consent to
       one or more tests of his or her breath, blood or
       urine, for the purpose of determining the presence or
       quantity   in  his   or  her   blood  or   breath,  of
       alcohol . . . 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.
Wis.       Stat.    § 343.305(2)     (emphases       added).          This    provision

creates the "implied consent," but it simultaneously forecasts

its    operational        independence        from     the     Test     Authorization


       3
       The statute also provides for tests of a driver's breath
or urine. But because a blood test is at issue in this case, I
will refer only to that type of test.
       4
       There is a connection between the Implied Consent
Component and Test Authorization Component when the driver is
unconscious.     Wis. Stat. § 343.304(3)(b).    That exception
presents issues distinct from those presented by conscious
drivers.   Because Mr. Brar was conscious, I do not address the
exception here.


                                          5
                                                                        No.    2015AP1261-CR.dk


Component:           Operating a motor vehicle gives rise to "deemed"

consent, but the actual blood test must be requested by the law

enforcement officer.5

       ¶52     What the Implied Consent Component forecasts, the Test

Authorization Component makes explicit——the officer must ask the

driver for permission to conduct a blood test:                              "Upon arrest of

a    person        for      [operating         while       intoxicated] . . . 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)."                        Wis. Stat. § 343.305(3)(a)

(emphasis added).            When an officer asks a driver for permission

to conduct a test, he must recite a very specific warning.                                       The

provision introducing the warning echoes the fact that he is

asking permission——not telling:                       "At the time that a chemical

test specimen is requested under sub. (3) (a), (am), or (ar),

the law enforcement officer shall read the following to the

person from whom the test specimen is requested . . . ."                                     Wis.

Stat. § 343.305(4) (emphases added).                         The statutorily-mandated
warning       confirms      the    officer       is    asking      permission,        and        the

driver may say "no" to the officer's request:

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


       5
         This subsection also provides for a "required" test when the operator is unconscious.
But that is part of the exception I mentioned above. See supra n.4.

                                                6
                                                No.   2015AP1261-CR.dk

    with respect to a commercial motor        vehicle    after
    consuming an intoxicating beverage.

    This law enforcement agency now wants to test one or
    more samples of your breath, blood or urine to
    determine the concentration of alcohol or drugs in
    your system. If any test shows more alcohol in your
    system than the law permits while driving, your
    operating privilege will be suspended. If you refuse
    to take any test that this agency requests, your
    operating privilege will be revoked and you will be
    subject to other penalties. The test results or the
    fact that you refused testing can be used against you
    in court.

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

    If you have a commercial        driver license or were
    operating   a    commercial     motor   vehicle,   other
    consequences may result from    positive test results or
    from refusing testing, such     as being placed out of
    service or disqualified.
Wis. Stat. § 343.305(4) (emphases added).

    ¶53    I'm not going to pretend the meaning of "request" is

an open question.   We are all fluent English-speakers here, and

we know it means what it so obviously does——it is a question, a

seeking of an answer.      And when the request is for a blood

sample, we know the officer is asking permission to take it.        I

suppose someone might say the statute's repeated admonition that

the officer must seek permission to take a sample is a tip of

the hat to good manners.    I trust the government's agents make

every effort to be polite in their interactions with Wisconsin's
residents, so this would be a frivolous mandate to write into a

statute.   Absent any textual hints that the repeated "request"
                                7
                                                                        No.   2015AP1261-CR.dk


requirement       is     more    about      etiquette       than    a     mandate     to    ask

permission, we shouldn't read it that way.                          See State ex rel.

Kalal   v.    Cir.       Ct.     for     Dane       Cty.,    2004       WI 58,      ¶45,     271

Wis. 2d 633, 681 N.W.2d 110 ([S]tatutory interpretation 'begins

with the language of the statute.                    If the meaning of the statute

is plain, we ordinarily stop the inquiry.'" (quoting Seider v.

O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659)).

      ¶54    So what does that mean for "implied consent"?                                It is

axiomatic that if one must ask for something, then one doesn't

yet have it.        If the statute's "implied consent" really is equal

to a driver's voluntarily and freely given consent (as the court

claims),     then      all      of   this     "request"       business         is    so     much

doubletalk.        If the court is right, then there is no need to ask

because the law says we may act as though the driver already

said "yes."         So Wis. Stat. § 343.305(3)(a) would read:                              "Upon

arrest of a person for [operating while intoxicated] . . . a law

enforcement officer may request tell the person to provide one

or more samples of his or her breath, blood or urine for the
purpose specified under sub. (2)."                     And § 343.305(4) would have

to read:          "At the time that a driver is told to provide a

chemical test specimen is requested under sub. (3) (a), (am), or

(ar), the law enforcement officer shall read the following to

the person told to provide a from whom the test specimen is

requested . . . ."              The warning required by § 343.305(4) would

need to be similarly amended to remove the "request" language,

as   well    as    the    confirmation        that     the    subject         can   tell    the
officer "no."          But the officer does have to ask permission, and

                                                8
                                                                     No.    2015AP1261-CR.dk


the    driver      may    indeed    refuse    his      request.        And     that      means

"implied consent" and the consent actually necessary to obtain

the blood sample are quite obviously not the same thing, and do

not serve the same function.

       ¶55       "Implied consent" does, however, have a purpose.                          And

that purpose is to juke the Fourth Amendment.                               We know that

taking a blood sample in the absence of a warrant or exigent

circumstances        is    an    unconstitutional          search.         Birchfield       v.

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

Amendment thus prohibits "unreasonable searches," and our cases

establish         that     the     taking    of        a    blood     sample        or    the

administration of a breath test is a search.").                        So, contrary to

what       our   opinion    says    today,       the   legislature         cannot     simply

authorize police officers to take blood samples without asking

permission.6        Thus, "implied consent" cannot be the same thing as

consent      given    pursuant      to   a   police        officer's       request.        And

indeed it is not.

       ¶56       "Implied consent" has an entirely different function.
It is part of a mechanism designed to obtain indirectly what it

       6
       Birchfield arose in the context of an implied consent
statute (actually, several implied consent statutes, inasmuch as
this opinion addressed defendants from multiple states).     See
Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173
(2016). So if the legislatively-provided consent was sufficient
to authorize a blood test, the Court would not have spent any
time determining whether such tests are appropriate under the
"search incident to arrest" exception to the Fourth Amendment.
It would have simply noted the existence of an implied consent
statute and called it a day.    But it didn't, so apparently the
United States Supreme Court is not willing to trim the Fourth
Amendment's protections as aggressively as we are.


                                             9
                                                                   No.   2015AP1261-CR.dk


cannot (and does not) create directly——consent to a blood test.

The Implied Consent Component works in tandem with the Penalty

Component     to    cajole       drivers    into     giving       the    real        consent

required    by     the    Test    Authorization       Component.              The    Penalty

Component punishes a driver by revoking his operating privileges

if he refuses an officer's request for a blood sample.                                  Wis.

Stat. § 343.305(9)-(10).               But that smacks of punishing someone

for   the   exercise      of     his    constitutional      right       to    be    free   of

unreasonable searches, upon which we generally frown.                              Harman v.

Forssenius,        380    U.S. 528,       540     (1965)    ("It       has     long     been

established that a State may not impose a penalty upon those who

exercise a right guaranteed by the Constitution.").

      ¶57   It is this consideration that, finally, explains why

the Implied Consent Component exists and where it slips into

place.      The idea appears to be that if the driver's Fourth

Amendment rights have been legislatively waived, there can be no

punishment    consequent         upon     the    exercise    of    a     constitutional

right because it has already been relinquished, courtesy of Wis.
Stat. § 343.305(2).            Thus, when a driver refuses to provide a

blood     sample,    he    is     not     being    punished       for    exercising        a

constitutional right, but for refusing a statutorily-authorized

request     for      needed       evidence.          This     Rube           Goldberg-like

convolution may or may not be sufficient to make it past the

Fourth Amendment, but the purpose of my concurrence is not to

analyze this contraption's fidelity to the Constitution.                                   My

purpose here is only to describe how the statute functions, and



                                            10
                                                                 No.    2015AP1261-CR.dk


explain why "implied consent" has nothing to do with the consent

necessary to obtain a blood sample.

       ¶58    In sum, the court's opinion misstates how Wis. Stat.

§ 343.305 operates.             "Implied consent" does not authorize an

officer to take a blood sample.                It only provides (questionable)

cover for punishing a driver who refuses to authorize a blood

test.      To actually perform the test, the officer has to ask the

driver's permission.            And if the driver says "no," the "implied

consent" provision does not step in to countermand his answer.

So   the     court      erred   by   imputing     to    this     statutorily-deemed

"consent" the power to authorize a blood test.                     It then built on

that    error      by     claiming    this     non-operational          "consent"    is

constitutionally           valid     because     it     is      given    freely     and

voluntarily.

                                         III

       ¶59    It is a metaphysical impossibility for a driver to

freely and voluntarily give "consent" implied by law.                           This is

necessarily so because "consent" implied by law isn't given by
the driver.          If it is given by anyone, it is given by the

legislature through the legal fiction of "deeming":                       "Any person

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

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

consent . . . ."           Wis. Stat. § 343.305(2).               One only "deems"

when the thing deemed did not really happen, but you intend to

act as though it did.           So it makes no sense to ask if the driver

freely and voluntarily gave something he manifestly did not give
in the first place.

                                          11
                                                                No.    2015AP1261-CR.dk


       ¶60       And yet, the court asks anyway:             "When we are asked to

affirm a finding that consent was given, whether express                            or

implied,         we    also   must     determine    whether     the     consent    was

voluntary."            Majority op., ¶24 (emphasis added).               It is true

that a person's consent to a search is constitutionally valid

only if he gives it freely and voluntarily.7                        However, even as

the court asserts that express consent and "consent" implied by

law    are       constitutionally       fungible,      its   analysis    proves    its

thesis is indefensible.              A brief exploration of how we assay the

voluntariness            of    a      person's      consent     illustrates        the

meaninglessness of this standard in the context of "consent"

implied by law.

       ¶61       We analyze a wealth of factors in determining whether

an    expression        of    consent    meets   the    voluntariness       standard.

Majority op., ¶¶24-26.               We ask, for example, whether the police

used deception, or trickery, or misrepresentations to produce

the consent.           Artic, 327 Wis. 2d 392, ¶33.            We explore whether

the authorities threatened the defendant.                     Id.     Or intimidated
him.       Id.     Or used food or sleep as leverage to prize out his

consent.         Id.    We ask whether the officer and the circumstances

were "congenial, non-threatening, and cooperative."                          Id.    We

want to know how the defendant responded to the search request.

Id.        We factor into our analysis the person's age.                    Id.    And

intelligence.           Id.    And education.        Id.     And his physical and

       7
       See State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786
N.W.2d 430 ("The State bears the burden of proving that consent
was given freely and voluntarily.").


                                           12
                                                       No.    2015AP1261-CR.dk


emotional condition.          Id.    And whether he had prior experience

with law enforcement.          Id.   And whether the police told him he

need not consent.       Id.     This is, in full, an exhaustive inquiry

into     virtually     every    conceivable    circumstance     that   could

possibly have some bearing on whether the defendant's consent

was the product of the State's influence, as opposed to the

defendant's own will.

       ¶62    And still we are not done.       A defendant may have said

"yes," and he may have actually submitted to the search, but we

still worry that his words and his conduct might not really

reflect a free and voluntary expression of his will.              So we say

that just because a person acquiesces to a search doesn't mean

that he was really consenting.          "Consent is not voluntary if the

state proves 'no more than acquiescence to a claim of lawful

authority.'"        Id., ¶32 (quoting Bumper v. North Carolina, 391

U.S. 543, 548-49 (1968)).

       ¶63    Now we are almost done determining whether a person's

express consent is enough to waive his Fourth Amendment rights.
To ward against inadvertent waivers, we burden the State with

the obligation to prove the consent was voluntarily and freely

given.       Id.   All told, then, we test the sufficiency of express

consent with a searching inquiry into everything that could have

made the consent anything less than a product of the driver's

uninhibited will, we disregard a person's actual submission to

the search if it was nothing more than acquiescence to a claim

of lawful authority, and we make it the State's responsibility
to prove the driver gave his consent freely and voluntarily.               So

                                       13
                                                                       No.    2015AP1261-CR.dk


much for express consent; now it's time to look at the factors

we use to determine whether an instance of "consent" implied by

law meets this standard.

      ¶64    For    "consent"       implied      by    law,       we    ask    whether      the

driver drove his car.

      ¶65    And that's it.          If the court is right about "consent"

implied by law, then we have no interest in what the driver

said,    thought,     experienced,      felt,         or    saw.        Nor     do    we    need

consider whether the driver acquiesced to a police officer's

claim of lawful authority.            We aren't interested in any personal

detail      about    the    driver,     such      as       his     age,       intelligence,

circumstances, or emotional state.                    The only thing we want to

know is whether he was in the driver's seat.                           And that's exactly

what the court said:             "We conclude that Brar voluntarily, albeit

impliedly, consented when he chose to drive on Wisconsin roads."

      ¶66    That    single      sentence     comprises          the    entirety       of    the

court's     voluntariness         analysis       as    it     relates         to     "consent"

implied by law.            In truth, that's about as much as it could
possibly have said because we really aren't interested in the

driver at all when it comes to this type of consent.                               The driver

is   irrelevant      to    the    question    because        he    isn't       the    one    who

provided the consent——it was the legislature.                                If the driver

drove, the consent inquiry ends before it begins because the

legislature provided it 48 years ago when it adopted Wis. Stat.

§ 343.305.         There is a vast chasm separating express consent

from "consent" implied by law, as this brief diversion into the
voluntariness       standard       illustrates.             In    reality,         they     have

                                            14
                                                                  No.   2015AP1261-CR.dk


literally nothing in common.                Which is understandable because,

as discussed above, they perform entirely different functions.

                                            IV

       ¶67     The most likely reason the court fell into error is

that it tangled up the concepts of express consent (that is,

spoken    or    written    consent),        consent     implied    by   conduct,     and

"consent" implied by law.                If we could untie this knot and

consider the nature and function of each concept independently

of the others, I believe the errors would correct themselves.

       ¶68     The    first    step    to    untying      a    knot     is    carefully

observing how it came to be.             I begin, therefore, by identifying

each time the court confounded the different types of consent.

The knot began with the threads of express consent and "consent"

implied by law, which the court started weaving together in its

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

849 N.W.2d 867.         See Majority op., ¶¶19-20.             Rejecting the court

of appeals' proper attempt to keep the threads separate, the

court twisted them together into one:                   "This reasoning implies a
distinction          between   implied       consent     and      consent     that   is

sufficient under the Fourth Amendment.                    Such a distinction is

incorrect as a matter of law."                   Majority op., ¶19 ("Statement

1").     Still responding to Padley, the court then introduced the

thread of consent implied by conduct into the growing knot:

"Stated      more     fully,   and    contrary     to    the   court     of   appeals'

reasoning in Padley, consent can manifest itself in a number of

ways, including through conduct."                Majority op., ¶20 ("Statement
2").     Express consent, of course, is something personal to the

                                            15
                                                               No.   2015AP1261-CR.dk


driver (as opposed to something "deemed" by the legislature), so

the court's next step was to infuse the personal "granting"

element of express consent into each of the other threads:                      "The

use of the word 'implied' in the idiom 'implied consent' is

merely   descriptive     of   the    way    in   which    an    individual      gives

consent. It is no less sufficient consent than consent given by

other means."        Id. ("Statement 3").         It then subsumed "consent"

implied by law into consent implied by conduct by making the

former   just    a   particular     manifestation        of    the   latter:      "An

individual's consent given by virtue of driving on Wisconsin's

roads, often referred to as implied consent, is one incarnation

of consent by conduct."        Id., ¶21 ("Statement 4").               Finally, it

pointed to the knot and declared it was all one, and the one was

sufficient to waive Fourth Amendment protections:

    Therefore, lest there be any doubt, consent by conduct
    or implication is constitutionally sufficient consent
    under the Fourth Amendment. We reject the notion that
    implied consent is a lesser form of consent. Implied
    consent is not a second-tier form of consent; it is
    well-established   that  consent   under  the   Fourth
    Amendment can be implied through an individual's
    conduct.
Id., ¶23 ("Statement 5").         But it is not all one.

    ¶69    The       second   step     to        the     untying      project     is

disentangling express consent from "consent" implied by law.                       I

have already done most of the foundational work (supra), and it

appears this is the loosest strand in the weave.                      I will pull

first on Statement 3:         "The use of the word 'implied' in the

idiom 'implied consent' is merely descriptive of the way in
which an individual gives consent. It is                      no less sufficient

                                       16
                                                                           No.    2015AP1261-CR.dk


consent than consent given by other means."                              The premise of this

statement is that, whether we are considering express consent or

"consent"         implied   by    law,       it    is      the    driver       giving    consent.

That, however, is not true——between the two, only the first

comes from the driver.                     Which is why we pay such fastidious

attention to him and the circumstances of his interaction with

the    police       officer      when      we     assay     the       voluntariness          of   his

consent.          But   with     "consent"         implied       by     law,     we    give   scant

thought to the driver (as the court itself demonstrated) because

he isn't the one who gives the consent; it is the legislature.

So it is categorically untrue that "the word 'implied' in the

idiom 'implied consent' is merely descriptive of the way in

which    an       individual     gives       consent."            The    word     "implied"         is

important because it tells us it is the legislature, not the

individual, who is giving consent.

       ¶70    With that correction, express consent is almost free

from the court's knot.                  It is held there only by the court's

rebuke       in     Statement         1:          Padley's        "reasoning           implies       a
distinction         between       implied         consent         and     consent        that       is

sufficient under the Fourth Amendment.                              Such a distinction is

incorrect as a matter of law."                             The implied consent statute

actually      makes     Padley's           distinction        explicit.           As    described

above,    the       Implied      Consent        Component         will     never       result       in

authorization to perform a blood test on a conscious individual

because there is no operational connection between it and the

Test    Authorization          Component.              A   police       officer       must    ask    a
driver's      permission         to    conduct         a    blood      test;     the    statute's

                                                  17
                                                                         No.    2015AP1261-CR.dk


"implied consent" cannot supply that authorization, nor was it

designed      to    do   so.      Thus,         the    court's       statement            that   the

"distinction        is    incorrect        as     a    matter    of        law"       is     itself

incorrect as a matter of law.                   And with that, express consent is

free of the knot.

    ¶71       The    third     step    in       untying    the       knot       is    separating

consent implied by conduct from "consent" implied by law.                                        The

court's discussion bounced between the two as if they were the

same thing.         They are not.               Consent implied by conduct is a

recognition of how people interact with each other in real life.

Sometimes      an    action,      or   a    gesture,       or        a    circumstance,            is

sufficiently expressive of a person's will that we can derive

from that conduct definite and certain information.                                       And when

that information conveys consent to a search, we accept it for

its intended meaning, so long as it meets the voluntariness

standard.      These principles are apparent from the very cases the

court cited while muddling the two concepts.                                I will address

enough   of    them      to    demonstrate        there    is    a       real    and       critical
difference between the concepts.

    ¶72       The court referred to State v. Tomlinson, in which we

considered     whether        officers      had       received   consent             to    enter    a

person's home.           2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367.

Two police officers approached the back door and knocked.                                          A

teenage girl answered, and the police informed her they were

searching for the defendant and requested permission to enter.

She then "turned to enter the house upon the officer's request
to enter."         Id., ¶37.      We noted that the defendant "was present

                                                18
                                                                       No.   2015AP1261-CR.dk


and    apparently        said    nothing    when        this    occurred."          Id.         We

concluded         that    this        conduct        "could    reasonably       have       been

interpreted as an invitation to follow her inside."                                 Id.    That

is,    we    carefully     examined       the        conduct    of   the     girl    and    the

defendant to deduce what information it was conveying to the

officers standing at the door.                   Because the conduct sufficiently

conveyed a message of consent to the officers' entry, we gave it

that effect and confirmed the search's constitutionality.

       ¶73    The court also cited United States v. Lakoskey, 462

F.3d 965 (8th Cir. 2006), as amended on reh'g (Oct. 31, 2006),

which provides a counterfactual illustration of consent implied

by    conduct.       There,       a    postal    inspector       was    suspicious         of   a

package, and so delivered it personally to the addressee.                                   Id.

at 968.       The inspector met Mr. Lakoskey just outside the front

door, and handed him the package.                     Id.     When the inspector asked

to see what was in the package, Mr. Lakoskey refused and walked

inside the house.               Id.     After repeated requests, Mr. Lakoskey

finally said he would open the package, but then turned so the
inspector could not see it.                     Id. at 969.          At that point, the

inspector entered the house, Mr. Lakoskey opened the envelope,

and incriminating evidence was disclosed.                            Id.      The question

before      the    court    was       whether        Mr.    Lakoskey's       actions      could

reasonably convey the message "you may enter my home" to the

inspector.        The district court said yes.                 Id. at 971.          The Eight

Circuit disagreed.              While recognizing that consent to a search

can be implied from conduct, the court observed that "there is
no indication in the record that he [Thomas Lakoskey] invited

                                                19
                                                                No.    2015AP1261-CR.dk


[Inspector]      Hirose's   entry,      came   outside     to     tell      Hirose   to

follow him, left his door open, or motioned for Hirose to come

in, implying that Hirose should follow him."                     Id. at 974.          So

the court concluded that "the finding of the district court that

Thomas   [Lakoskey]'s       actions     constituted      implied        consent      for

Hirose to enter his home was clearly erroneous."                      Id.

    ¶74    The court also relied on Morgan v. United States, 323

F.3d 776, 778 (9th Cir. 2003), which held that "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."    The Morgan court relied heavily on a Fourth Circuit

case,    which     described      how    a     person's     conduct          in   such

circumstances      can   convey    the    message     "I    consent         to    being

searched":

    [T]he validity of [the defendant's] search [did not]
    turn on whether he gave his express consent to search
    as a condition of entering the base. Consent is
    implied by the totality of all the circumstances. The
    barbed-wire fence, the security guards at the gate,
    the sign warning of the possibility of search, and a
    civilian's common-sense awareness of the nature of a
    military base—all these circumstances combine to
    puncture any reasonable expectations of privacy for a
    civilian who enters a closed military base.
Id., 781-82. (quoting United States v. Jenkins, 986 F.2d 76, 79

(4th Cir. 1993)).

    ¶75    Handing over one's luggage to be put through an x-ray

scanner at an airport is also conduct conveying consent to a

search, according to State v. Hanson, 34 P.3d 1, 5 (Haw. 2001),

as amended    (Nov. 7, 2001)          ("Plainly, the surrender of one's
effects at airport security checkpoints is to allow inspection

                                         20
                                                                         No.   2015AP1261-CR.dk


of such effects for contents that may pose a danger to those on

the aircraft.").             And when an officer asks to search a bedroom,

the   meaning      of    the       defendant's     resulting         conduct        cannot   be

mistaken     when       he    "opened    the     door    to    and        walked    into     his

bedroom,     retrieved         a    small    baggie     of    marijuana,         handed      the

baggie      to   the     agents,      and     pointed        out     a    number     of     drug

paraphernalia items."               State v. Phillips, 218 Wis. 2d 180, 197,

577     N.W.2d 794       (1998).        We     concluded           the    obvious:          "The

defendant's conduct provides a sufficient basis on which to find

that the defendant consented to the search of his bedroom."                                  Id.

The court relied on both of these cases, too, and yet still did

not perceive the difference between consent implied by conduct

and "consent" implied by law.

      ¶76    There is a commonality to each of these cases, and

indeed to all cases that find consent in a person's conduct:

the     information-conveying               dynamic     inherent          to    a    game     of

Charades.        When a defendant is supposed to have manifested his

consent to a search by his conduct, we carefully watch as the
State     recreates          the    interaction         between          the    officer      and

defendant.         If    the       defendant's     conduct         in     response    to     the

request conveys the message "I agree to be searched," we give it

that effect.        There is no "deeming" involved.                      Just as in a game

of Charades, we are trying to understand the actual, real-life

information the person is conveying through his conduct at that

moment.

      ¶77    And that unties the rest of the court's knot.                                    In
Statement 4 the court said "consent" implied by law is just a

                                              21
                                                                No.    2015AP1261-CR.dk


type of consent implied by conduct:                    "An individual's consent

given by virtue of driving on Wisconsin's roads, often referred

to   as    implied       consent,     is   one    incarnation        of   consent      by

conduct."        If   that     is     true,     then   there    should     be   enough

information bundled up in the act of "driving on Wisconsin's

roads" for us to deduce an expression of the driver's will from

that conduct.

     ¶78       Except there is not.             There are a million things we

might imagine driving a car might mean, very few that we can

discern with any certainty, and none that say anything about

consent to a search.           We might conclude from observing a driver

on the interstate that he is traveling from point A to point B.

But even that simple inference is entirely speculative.                          Maybe

he's out for a Sunday drive and he's travelling from Point A

back to Point A.          If he's traveling quickly we might infer he is

in a hurry to get to his destination.                  But then again, maybe he

just likes to drive fast.              One could multiply examples without

end, but in the end it would just emphasize what we already
know.      And    that    is   that    there     are   only    two    things    we    can

confidently say that driving a car on Wisconsin's roads means:

The driver is driving his car, and he is in Wisconsin.                               In a

thousand attempts in a thousand games of Charades, no contestant

will ever guess that driving a car in Wisconsin means "I consent

to a blood test."          It does no good to say the driver expresses

such consent because the statute says he does.                            If one must

resort    to    the   statute    books     to    discover     the    meaning    of    the
driver's conduct, then the conduct has utterly failed to convey

                                           22
                                                                        No.   2015AP1261-CR.dk


that    meaning.           Which    is       not    at   all   surprising      because    the

statute does not purport to describe the meaning of driving on

Wisconsin's roads, only its consequences.

       ¶79    Thus, neither the driver's conduct nor the statute can

make driving in Wisconsin mean "I consent to a blood test."                               And

that necessarily means that "consent" implied by law is not "one

incarnation         of   consent        by    conduct."        It    then     follows    that

Statement 2——in which the court said consent can be derived from

conduct——is true as a standalone description of the law, but

irrelevant because this is not a "consent implied by conduct"

case.    Most of Statement 5 is true but irrelevant for the same

reason——to the extent it says consent implied by conduct can be

constitutionally sufficient, it is saying something inapplicable

to this case.

       ¶80    Untying       the     knot      isolates     the      court's    error.      In

Statement 5, the court said "lest there be any doubt, consent

by . . . implication               is    constitutionally            sufficient      consent

under the Fourth Amendment."                       But without any support from the
text of the statute, or the "consent by conduct" or "express

consent" lines of cases, the statement is just ipse dixit.                                 It

is so because we say it is.                        And that contributes to an even

more significant problem.

                                                   V

       ¶81    When the court says "consent" implied by law is just

as constitutionally effective as express consent, it is saying

something terribly chilling.                       It is saying the legislature may
decide       when    the    people       of        Wisconsin     must    surrender      their

                                                   23
                                                                  No.   2015AP1261-CR.dk


constitutional rights.               The court recognized that conducting a

blood test constitutes a search within the meaning of the Fourth

Amendment.           It also recognized that such searches require a

warrant or a legitimate exception to the Fourth Amendment.                            And

it   further        recognized      that     the    exceptions    usually      will   not

apply.8      The court dispensed with all of this, and announced that

blood tests are always available when there is probable cause to

believe someone was driving in Wisconsin while intoxicated.                           The

scythe sharp enough to cut through all of these limitations

turned out to be really quite simple, but no less surprising for

that.       The legislature simply had to declare that the people of

Wisconsin had agreed to it.

       ¶82        If this is right, the Birchfield and McNeely9 courts

should probably feel a little sheepish for all the attention

they       paid    to     the   constitutional        niceties.        Especially     the

Birchfield court, which lauded implied consent laws, but somehow

missed our insight that they dispense with both the warrant

requirement and the need to consider the known exceptions to the
Fourth Amendment.                "Consent" implied by law, our court says

today,       is      no     "second-tier       form     of     consent."         It    is

"constitutionally               sufficient         consent     under     the     Fourth

Amendment."             The     legislature    need     only    say    the   people    of


       8
       I am quite sure the court recognizes the limitations. It
cited both McNeely and Birchfield, which together place
substantial restrictions on when an officer may conduct a blood
test without a warrant or consent.
       9
           Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013).


                                              24
                                                                      No.    2015AP1261-CR.dk


Wisconsin waive their Fourth Amendment rights by driving, and

immediately it is so.

      ¶83      A constitutional doctrine of this magnitude deserves

considerably more attention than today's opinion gives it.                                    One

aspect of a more rigorous consideration would include developing

and describing some limiting principles.                          Today the court says

the     legislature           properly        suspended       Wisconsinites'             Fourth

Amendment rights when they go for a drive.                          What of their Sixth

Amendment rights?          Perhaps the legislature might decide it would

be easier to get convictions if they also suspend the right to

the effective assistance of counsel.                        According to our opinion

today,    the    legislature          could       simply    declare    that     driving        in

Wisconsin       waives     that       right,       too.      Or     the     right    not       to

incriminate oneself.             Or the right to a jury.                  What principle,

exactly, would prevent any of this?

      ¶84      Nor is there anything about this new doctrine that

necessarily limits it to the context of obtaining blood tests

from intoxicated drivers.                There are certain parts of the State
that experience a disproportionate amount of crime.                            Perhaps the

legislature might decide police need greater access to homes and

other    buildings       in    such     areas.        It    could,    according          to   our

opinion     today,     adopt      an    "implied       consent"       statute       in    which

recording a property deed comprises consent to a search of one's

property when the police have probable cause to believe the

owner    has    been     involved       in    a    crime.      It    takes    very       little

imagination      to    see     how     this    new    doctrine      could     eat    its      way
through all of our constitutional rights.

                                               25
                                                      No.    2015AP1261-CR.dk


    ¶85     I understand the importance of pursuing intoxicated

drivers.    But we are deforming our Constitution.           By conferring

on the legislature the authority to create consent where none

exists,    we   are   reducing   constitutional   rights    to   matters   of

legislative grace.       For all of these reasons, I join the court's

mandate, but only so much of the opinion as discusses express

consent.

    ¶86     I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins part I of this concurrence.




                                     26
                                                 No.   2015AP1261-CR.ssa


     ¶87   SHIRLEY S. ABRAHAMSON, J.   (dissenting).1       The legal

principle underlying this drunk-driving case is that a blood

draw is a search under the Fourth Amendment.2
     1
       The first opinion, authored by Chief Justice Patience D.
Roggensack, is a lead opinion. The opinion is referred to as a
lead opinion because it states the mandate agreed to by the
majority of the justices but represents the reasoning of less
than a majority of the participating justices.

     Only Justice Annette K. Ziegler     and    Justice    Michael   J.
Gableman join the lead opinion.

     Writing in concurrence, Justice Rebecca G. Bradley concurs
with the mandate and joins Part I of Justice Daniel Kelly's
concurrence.   Justice Daniel Kelly joins the "court's mandate
and the opinion to the extent it discusses Mr. Brar's express
consent to the blood test while he was present in the police
station," but does not "join any part of the court's discussion
of implied consent . . . ." Justice Kelly's opinion, ¶1.

     Thus five justices agree with the mandate set forth in the
lead opinion; the mandate is that the decision of the court of
appeals is affirmed.

     Disagreeing with the mandate and the reasoning of the lead
opinion, I write in dissent, joined by Justice Ann Walsh
Bradley.

     As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We have said
'that a lead opinion is one that states (and agrees with) the
mandate of a majority of the justices, but represents the
reasoning of less than a majority of the participating
justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props.,   LLC  v.   DOT,  2016  WI   5,  366   Wis. 2d 372,  874
N.W.2d 533)).
     2
       Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016);
Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616–17 (1989);
Schmerber v. California, 384 U.S. 757, 767–68 (1966).

                                1
                                                         No.   2015AP1261-CR.ssa


     ¶88    The lead opinion presents two questions of law that

this court decides independently of the circuit court and court

of appeals but benefiting from the analyses of those courts.

     ¶89    First,   does   a   driver's    "implied    consent"    under   the

Wisconsin Implied Consent Law constitute, by itself, voluntary

and free consent to a warrantless blood draw for purposes of the

Fourth     Amendment?       See    Wis.     Stat.      § 343.305     (2015-16)

(attached).3

     ¶90    Second, is the circuit court's finding of consent in

fact supported by the record, and, if so, has the State met its

burden of proving by clear and convincing evidence that the

defendant, Navdeep S. Brar, voluntarily and freely consented to

the warrantless blood draw?

     ¶91    I conclude that the lead opinion errs in deciding both

issues.

     ¶92    In responding to the first question, which it need not

address, the lead opinion proffers a muddled interpretation of

the Implied Consent Law that violates the federal and state
constitutional    protections     against    unreasonable      searches.    The

State asserts that the Fourth Amendment is irrelevant to a blood

draw undertaken to determine whether the driver is intoxicated.

     ¶93    The lead opinion and the State engage in an unsound

analysis of the text of the Wisconsin Implied Consent Law and

relevant case law, including State v. Padley, 2014 WI App 65,

     3
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.      The 2015-16
version of § 343.305 is the same as the 2013-14 version.


                                     2
                                                                       No.   2015AP1261-CR.ssa


354 Wis. 2d 545, 849 N.W.2d 867, Missouri v. McNeely, 133 S. Ct.

1552 (2013), and Birchfield v. North Dakota, 136 S. Ct. 2160

(2016).

       ¶94       In    contrast     to   the   lead      opinion's       and   the       State's

positions,        I     conclude     that      neither         a   driver's    obtaining       a

Wisconsin operators license nor a driver's operating a motor

vehicle in Wisconsin is a manifestation of actual consent to a

later search of the driver's person by a blood draw.                                 In order

for    a    law       enforcement    officer        to   draw       blood    from    a    driver

without a warrant, a valid exception to the Fourth Amendment

must apply at the time of the blood draw, such as the driver's

free       and    voluntary        consent      or       the       existence    of       exigent

circumstances.            My position is consistent with recent decisions




                                                3
                                                     No.   2015AP1261-CR.ssa


of   other    state   courts   involving   implied   consent     laws   and

conscious drivers.4

     ¶95     The instant case and the Wisconsin Implied Consent Law

should be compared with a very recent (April 2017) Colorado

case, People v. Hyde, 393 P.3d 962 (Colo. 2017).               Hyde holds


     4
       See, e.g., State v. Butler, 302 P.3d 609, 613 (Ariz. 2013)
(holding that "independent of" the implied consent law, "the
Fourth Amendment requires an arrestee's consent to be voluntary
to justify a warrantless blood draw."); People v. Mason, 214
Cal. Rptr. 3d 685, 702 (Cal. Super. Ct. 2016) ("To recap, we
have concluded that advance 'deemed' consent under the implied
consent law cannot be considered actual Fourth Amendment
consent."); Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015)
("Here,   the   trial  court   erred  when   it   concluded   that
'Defendant's statutory implied consent exempted the blood draw
from the warrant requirement . . . .'"); Williams v. State, 771
S.E.2d 373, 377 (Ga. 2015) (collecting cases) ("cases seem to
indicate . . . that mere compliance with statutory implied
consent requirements does not, per se, equate to actual, and
therefore voluntary, consent on the part of the suspect so as to
be an exception to the constitutional mandate of a warrant");
State v. Halseth, 339 P.3d 368, 371 (Idaho 2014) ("[W]e hold
that an implied consent statute . . . does not justify a
warrantless   blood   draw   from   a  driver   who   refuses   to
consent . . . or objects to the blood draw . . . . Consent to a
search must be voluntary."); State v. Wulff, 337 P.3d 575, 581
(Idaho 2014) (same); Byars v. State, 336 P.3d 939, 946 (Nev.
2014) ("The implied consent provision . . . does not allow a
driver to withdraw consent, thus a driver's so-called consent
cannot be considered voluntary.    Accordingly, we conclude that
[the implied consent provision] is unconstitutional."); State v.
Fierro, 853 N.W.2d 235, 243 (S.D. 2014) (ruling that a Fourth
Amendment totality of the circumstances analysis must be
performed to determine whether consent to a blood draw taken
pursuant to state implied consent law was voluntary); Aviles v.
State, 443 S.W.3d 291, 294 (Tex. Ct. App. 2014) (holding that
implied consent and blood draw statutes are not permissible
exceptions to the warrant requirement and stating that to hold
otherwise "flies in the face of McNeely's repeated mandate that
courts must consider the totality of the circumstances of each
case").


                                    4
                                                                  No.    2015AP1261-CR.ssa


that       the    driver's     "statutory         consent    [under       the   Colorado

statute] satisfied the consent exception to the Fourth Amendment

warrant requirement."           Hyde, 393 ¶.3d at 968.

       ¶96       Hyde is based on facts very different from the facts

in the instant case.                The Colorado Expressed Consent Statute

governing        Hyde   is   very     different     from    the     Wisconsin     Implied

Consent Law with regard to the facts of the Hyde case.

       ¶97       The different fact is that the driver in                       Hyde   was

unconscious when the blood was drawn.

       ¶98       The difference between the Colorado and Wisconsin laws

is that with regard to an unconscious driver, the Colorado law

provides:         "An unconscious driver, on the other hand, 'shall be

tested to determine the alcohol or drug content of the person's

blood.'      [Colo.     Rev.   Stat.]    § 42-4-1301.1(8)           [2016].     In    other

words, under the Expressed Consent Statute, the police need not

wait until a drunk-driving suspect returns to consciousness, in

order to afford that suspect an opportunity to refuse."5

       ¶99       In contrast, under Wisconsin's Implied Consent Law,
unconscious         drivers     are     "presumed      not     to       have    withdrawn

consent,"         but   Wisconsin      law       enforcement      officers      are    not

directed to conduct a blood draw on an unconscious driver.                             The


       5
           People v. Hyde, 393 P.3d 962, 966 (Colo. 2017).

     With regard to a conscious driver the Colorado Expressed
Consent Statute is, according to the Colorado Supreme Court,
similar in language and effect to implied consent laws in other
states with regard to conscious drivers, even though the statute
is phrased in terms of expressed consent. Hyde, 393 P.3d at 966
n.1.


                                             5
                                                                       No.    2015AP1261-CR.ssa


Wisconsin Implied Consent Law (in contrast with the Colorado

law)   states     that    a     blood      draw    "may    be     administered          to    the

[unconscious]      person."           See   Wis.     Stat.       § 343.305(3)(b)             ("[a]

person    who     is     unconscious          or     otherwise          not         capable    of

withdrawing       consent        is     presumed          not     to         have     withdrawn

consent . . . .").             Compare      State v. Howes, 2017 WI 18, 373

Wis. 2d 468,       893     N.W.2d 812             (lead    opinion)            (upholding       a

warrantless blood draw of an unconscious driver based on exigent

circumstances rather than the Implied Consent Law).

       ¶100 In     addition           to     these        factual            and      statutory

differences, Hyde is unavailing because Hyde's reasoning relies

on unpersuasive readings of Missouri v. McNeely, 133 S. Ct. 1552

(2013), and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

       ¶101 Indeed, Hyde has already been rejected by one state

supreme court.         In North Carolina v. Romano, No. 199PA16, 2017

WL 2492782 (N.C. June 9, 2017), the North Carolina Supreme Court

was    faced    with     the    question      whether        drawing         blood     from    an

unconscious driver on the basis of only the implied consent law,
without a warrant or exigent circumstances, and violated the

Fourth Amendment.

       ¶102 The        Romano     court           analyzed        Hyde,        McNeely        and

Birchfield.       It disagreed with the Hyde court.                          It declared the

blood draw unconstitutional:                 "Treating [the unconscious driver

provision of the implied consent law] as an irrevocable rule of

implied consent does not comport with the consent exception to

the warrant requirement because such treatment does not require
an    analysis    of     the    voluntariness         of        consent       based     on    the

                                              6
                                                            No.   2015AP1261-CR.ssa


totality of the circumstances."6            The Romano court interprets

McNeely and Birchfield substantially the same as I do and as do

other state courts.

    ¶103 In responding to the second question, I conclude the

lead opinion again errs.       The circuit court's finding of consent

in fact is not supported by the record, and even if it is, the

State has failed to meet its burden of proving by clear and

convincing evidence that the defendant voluntarily and freely

consented to the warrantless blood draw in the instant case.

    ¶104 Because the lead opinion errs as a matter of law and

whittles away constitutional protections for the defendant and

all of us, I dissent.

                                        I

    ¶105 The      lead    opinion     interprets      the   Wisconsin     Implied

Consent    Law   to   mean   that     driving   in    Wisconsin      amounts    to

voluntary and free consent to a blood draw.                  According to the

lead opinion, the statutory "implied consent" given previously

equates to actual consent at the time of the blood draw.                   In the
lead opinion's view, the Implied Consent Law, standing alone,

provides   "consent      sufficient    under    the    Fourth     Amendment——not

some amorphous, lesser form of consent."              Lead op., ¶21.

    6
       North Carolina v. Romano, No. 199PA16, 2017 WL 2492782, at
*8 (N.C. June 9, 2017).

     The Romano court cites cases from two other states agreeing
with its conclusion that the statutory implied consent does not
satisfy the consent exception to the Fourth Amendment with
regard to an unconscious driver.     See State v. Havatone, 389
P.3d 1251, 1253, 1255 (Ariz. 2017); Bailey v. State, 790
S.E.2d 98, 103 & n.42 (Ga. App. 2016).


                                        7
                                                                      No.   2015AP1261-CR.ssa


       ¶106 The lead opinion concludes:                      "Brar consented [to the

blood draw] under Wisconsin's implied consent law.                                He availed

himself of the roads of Wisconsin, and as a result, he consented

through his conduct to a blood draw."                       Lead op., ¶29.

       ¶107 The lead opinion recognizes, however, that conscious

drivers       are    statutorily          given        an   opportunity       to    withdraw

consent, lead op., ¶23 n.11, but does not address whether an

opportunity to withdraw consent must always be given before a

blood       draw    is    taken.       Lead        op.,     ¶23    n.10.7         Oddly,    and

inconsistently with the rest of its analysis, the lead opinion

also       recognizes      that     "[e]ven       in    implied      consent       cases,    we

consider the totality of the circumstances at the time of the

blood      draw     to    determine       if   an      individual's     previously-given

consent continues to be voluntary at that time."                            Lead op., ¶25

(emphasis added).

       ¶108 The          State    takes    a    position          similar    to    the     lead

opinion's.          The     State    asserts        that    the    Fourth    Amendment       is


       7
       The law is clear, in my opinion, that inherent in the
requirement of voluntary consent is the right of a person to
withdraw consent.      See, e.g., United States v. Dyer, 784
F.2d 812, 816 (7th Cir. 1986) ("a person may limit or withdraw
his [or her] consent to a search, and the police must honor such
limitations."); Burton v. United States, 657 A.2d 741, 746 (D.C.
1994) (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) and
Dyer to conclude:       "We think these authorities compel the
conclusion that when the basis for a warrantless search is
consent, consent may be withdrawn any time prior to completion
of the search, and we so hold."); 4 Wayne R. LaFave et al.,
Search & Seizure:    A Treatise on the Fourth Amendment § 8.1(c)
at 58 (5th ed. 2012) ("consent usually may be withdrawn or
limited at any time prior to the completion of the search")
(footnotes omitted).


                                               8
                                                          No.   2015AP1261-CR.ssa


irrelevant to a blood test requested under the Implied Consent

Law.       The State argues that when a driver is stopped and is read

the Informing the Accused Form, which the legislature requires a

law enforcement officer to read verbatim to a driver, the State

is not soliciting Fourth Amendment consent to a blood draw.8                 The

State's position is that the question at the Form stage is not

whether the driver consents to the test, "but rather whether the

subject will submit to the test he previously agreed to take, or

recant       his   consent   and   face   the   adverse   consequences     of   a

refusal."9

       ¶109 According to the State, when a driver is stopped and a

law enforcement officer employs the Implied Consent Law to take

a warrantless blood draw, the Fourth Amendment is not involved:

       This is not Fourth Amendment consent terrain; it is
       the statutory world of implied consent, a world the
       subject has entered though his own behavior.      The
       injection of Fourth Amendment consent principles into
       the Form phase of the implied consent statute
       contradicts Wisconsin and U.S. Supreme Court cases
       dealing with the law and would severely undermine the
       statute's critical role in combating the national
       problem of drunken driving.10



       8
       The State notes that, under its interpretation of the
Implied Consent Law, whether consent to the blood draw is deemed
to occur when a driver applies for an operating license or when
a driver operates a vehicle is not material.     In either case,
says the State, the driver has given consent to the blood draw
under the Implied Consent Law before the driver is pulled over
on suspicion of drunk driving.
       9
            Brief of Plaintiff-Respondent (State) at 7.
       10
            Brief of Plaintiff-Respondent (State) at 8-9.


                                          9
                                                                   No.    2015AP1261-CR.ssa


       ¶110 The         State      contends           that         Fourth       Amendment

constitutional         rights     come    into      play     at    the    Informing     the

Accused stage only after the driver refuses to allow a blood

draw and the State seeks a warrant for the blood draw or asserts

that    a    Fourth    Amendment      exception       applies,       such      as   exigent

circumstances.

       ¶111 I disagree with the interpretations of the Informed

Consent Law proffered by the lead opinion and the State.

       ¶112 The lead opinion's and the State's interpretation of

the Implied Consent law contravenes the text of the Law.                            By its

plain       terms,    the   Law   does        not   treat    the    driver     as    having

actually consented to a blood draw.                   By its plain terms, the Law

does not empower law enforcement officers to draw a blood sample

when the vehicle is stopped.                    Rather, the Law directs a law

enforcement officer to inform the driver that a request is being

made for a test, that the driver may refuse to take the test,

and that the driver will face civil legal consequences upon

refusal to take the test.
       ¶113 The text of the Informing the Accused Form, which the

Law requires to be read to the driver verbatim, advises the

driver that he or she may refuse to give a blood sample but that

a refusal has consequences, including revocation of operating

privileges and use of evidence of the refusal against the driver

in court.       Wis. Stat. § 343.305(4).              If the Implied Consent Law

furnishes       actual      consent      to    a    blood    draw,       why   would    the

legislature require officers to inform drivers when they are



                                               10
                                                                      No.   2015AP1261-CR.ssa


stopped     that    the    officer       is    requesting        a   test    and   that      the

driver may refuse the requested test?

      ¶114 I       conclude      that     in    the    context        of    the    Wisconsin

Implied Consent Law, the conduct that equates to consent valid

under    the    United      States      and    Wisconsin         constitutions          is   the

driver's agreeing to submit to the test after being read the

Informing the Accused Form.                   Were it otherwise, there would be

no need to read the Form or request a test.

      ¶115 I conclude that the court of appeals interpreted the

Implied Consent Law correctly in State v. Padley, 2014 WI App

65,   354    Wis. 2d 545,        849     N.W.2d 867:         The      "implied         consent"

given by drivers on Wisconsin highways pursuant to the Implied

Consent Law does not equate to "actual consent" under the Fourth

Amendment.      Padley, 354 Wis. 2d 545, ¶¶38-39.

      ¶116 The      Padley       court    concluded        that      a     driver's     actual

consent occurs after the driver has heard the Informing the

Accused Form, weighed his or her options (including the refusal

penalties),        and    decided       whether       to   give      or     decline     actual
consent.       Padley, 354 Wis. 2d 545, ¶39.                The Implied Consent Law

gives a driver a choice whether to give or decline to give

actual      consent       when   confronted         with     a       request      by    a    law

enforcement officer for a blood draw:

      [T]he implied consent law is explicitly designed to
      allow the driver, and not the police officer, to make
      the choice as to whether the driver will give or
      decline to give actual consent to a blood draw when
      put to the choice between consent or automatic
      sanctions. Framed in the terms of "implied consent, "
      choosing the "yes" option affirms the driver's implied
      consent and constitutes actual consent for the blood
      draw.   Choosing the "no" option acts to withdraw the
                                               11
                                                       No.    2015AP1261-CR.ssa

    driver's implied consent and establishes that the
    driver does not give actual consent.       Withdrawing
    consent by choosing the "no" option is an unlawful
    action, in that it is penalized by "refusal violation"
    sanctions, even though it is a choice the driver can
    make.
Padley, 354 Wis. 2d 545, ¶39.

    ¶117 Both     the   lead   opinion    and   the   State    suggest    that

Padley is incorrect as a matter of law, but neither advocates

expressly overruling the case.11          Padley is binding precedent.

Wis. Stat. § 752.41.      The lead opinion should abide by Padley,

overturn   it,   or   distinguish   it.     Instead,    the    lead   opinion



    11
       The defendant asserts that the State has forfeited the
issues whether the Fourth Amendment applies to the "Form" stage
of implied consent cases and whether Padley was wrongly decided.
The defendant argues that at no point in this litigation did the
State assert this position until its brief in this court. See
Reply Brief of Defendant-Appellant-Petitioner at 4; Wis. Stat.
§ (Rule) 809.62; State v. Denny, 2017 WI 17, ¶117, 373
Wis. 2d 390,   891  N.W.2d 144   (Abrahamson,  J.,  dissenting);
Michael Heffernan, Appellate Practice and Procedure in Wisconsin
§ 23.8 (7th ed. 2016) ("Failure to raise an issue in the
petition for review is deemed a waiver of any claim that the
supreme court should consider the issue.").

     In the court of appeals, the State took the position that
Padley was correctly decided by relying on it.     See Plaintiff-
Respondent's (State of Wisconsin) Court of Appeals Brief at 3
("'Consent' is not to be confused with Wisconsin's 'implied
consent' statute, a law which gives law enforcement the
authority to require drivers to choose between consenting to a
blood draw or refusing and facing penalties enacted by the
legislature.") (citing Padley, 354 Wis. 2d 545, ¶¶27, 33).

     In this court, the State asserts that Padley's view of the
Implied Consent Law is not correct and that when the Implied
Consent Law is in play, it "is not Fourth Amendment consent
terrain; it is the statutory world of implied consent, a world
the subject has entered through his own behavior."     Brief of
Plaintiff-Respondent (State of Wisconsin) at 8.


                                    12
                                                         No.   2015AP1261-CR.ssa


swipes    at   Padley   with    clawless    paws,   unnecessarily       leaving

Padley and the Implied Consent Law in a state of uncertainty.

     ¶118 In    addition   to    not    adhering    to   the    text    of   the

Wisconsin Implied Consent Law or Padley, the lead opinion does

not, in my opinion, pay acute attention to the United States

Supreme Court's recent drunk-driving cases.12




     12
       The lead opinion's reliance on pre-McNeely                      and pre-
Birchfield Wisconsin drunk-driving cases (such as                      State v.
Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980), and                    State v.
Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d                    528), is
dubious for several reasons.

     Recent United States Supreme Court cases significantly
changed the constitutional landscape of drunk-driving.   See
State v. Tullberg, 2014 WI 134, ¶42, 359 Wis. 2d 421, 857
N.W.2d 120, cert. denied, 135 S. Ct. 2327 (2015) (McNeely
"changed   the   landscape of  warrantless blood   draws  in
Wisconsin . . . .").

     The statutes at issue in those cases are not the same as
the statute involved in this instant case, and the lead opinion
fails to explain why these cases should control its analysis.

     The language from these cases upon which the lead opinion
relies is taken out of context.

     The issue addressed in Neitzel was whether the accused had
a right to confer with counsel before deciding to take or refuse
to take a chemical test for intoxication.    The court held that
Neitzel did not have the right to confer with counsel.       The
issue in the case did not involve implied consent as such.

                                                                  (continued)
                                       13
                                                                   No.    2015AP1261-CR.ssa


      ¶119 The United States Supreme Court has not questioned the

constitutionality          of     implied        consent     laws        imposing     civil

consequences.          Indeed it has confirmed their constitutionality.13

The   United      States    Supreme       Court    has     not,     however,      directly

decided that the consent exception to the Fourth Amendment is

satisfied      solely      by   implied     consent        under     a    state     implied

consent law.           The Court also has not explicitly decided that

state      implied      consent    laws     do     not     provide       actual     consent

satisfying the Fourth Amendment.                    In my opinion, this latter

proposition       is    implicit    in     the    Court's     recent       drunk-driving

cases.       As   Professor       LaFave    has    observed:         "Consent       in   any

meaningful sense cannot be said to exist merely because a person


     In Piddington, the issue was whether the accused, who was
profoundly deaf since birth, fully understood the information he
was given orally by the law enforcement officer pursuant to the
Implied Consent Law. The circuit court ruled that the State had
not met its burden to show that the accused understood the
information he was given. The supreme court ruled that whether
the accused actually comprehended the warnings is not a required
part of the inquiry.   According to the supreme court, the test
is whether the law enforcement officer's attempts to communicate
with the accused were reasonable under all of the circumstances.
The court did not address whether the accused voluntarily and
freely consented to a blood draw.
      13
       See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013)
("States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.");
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) ("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 . . . and nothing we say here should be read to cast
doubt on them.").


                                            14
                                                     No.   2015AP1261-CR.ssa


(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."14

      ¶120 In Missouri v. McNeely, 133 S. Ct. 1552 (2013) and

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

did not expressly address the issue of implied consent stemming

from implied consent laws.           But the Court's reasoning derived

from Schmerber v. California, 377 U.S. 757 (1966), is directly

applicable to the issue of consent.

      ¶121 In McNeely, 133 S. Ct. at 1566, the driver refused to

consent to a blood draw.      The Court recognized that valid Fourth

Amendment consent had to be obtained before blood was validly

drawn under the Fourth Amendment, unless an exception other than

consent was in play.

      ¶122 The McNeely court (in a plurality opinion) explained:

"Whether a warrantless blood test of a drunk-driving suspect is

reasonable must be determined case by case based on the totality

of the circumstances."        McNeely, 133 S. Ct. at 1563.15             This
emphasis on totality of circumstances suggests a broader reading

of McNeely than limiting McNeely to exigent circumstances.


      14
       4 Wayne R. LaFave et al., Search & Seizure: A Treatise
on the Fourth Amendment, § 8.2(l) at 164-65 (5th ed. 2012).
      15
       The Supreme Court of Georgia has explained:      "To hold
that the legislature could nonetheless pass laws stating that a
person   'impliedly'   consents   to   searches   under   certain
circumstances where a search would otherwise be unlawful would
be to condone an unconstitutional bypassing of the Fourth
Amendment."   Cooper v. State, 587 S.E.2d 605, 612 (Ga. 2003)
(quoting Hannoy v. State, 789 N.E.2d 977, 987 (Ind. App. 2003)).


                                      15
                                                                   No.    2015AP1261-CR.ssa


      ¶123 Shortly after the McNeely decision, the United States

Supreme Court vacated a Texas judgment upholding a forced blood

draw based solely on consent derived from                          the Texas        implied

consent statute and remanded the matter to the state court for

further consideration in light of McNeely.                       Aviles v. Texas, 134

S. Ct. 902, 902 (2014), vacating 385 S.W.3d 110 (Tex. Ct. App.

2012).      Aviles suggests that McNeely should be read broadly to

apply to all warrantless blood draws and that the Texas implied

consent     statute     was    not   a    per    se    exception         to   the    Fourth

Amendment justifying warrantless blood draws.                            The Texas court

so   interpreted       the    United     States      Supreme      Court       decision   on

remand.16

      ¶124 Birchfield echoes McNeely and Aviles.                          The Birchfield

Court noted that "[o]ur 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."        Birchfield,         136    S.    Ct.   at    2185.        The    Court

characterized implied consent laws as laws "to induce motorists
to submit to BAC testing."               136 S. Ct. at 2180.              The Birchfield

Court      explained    that    implied         consent     laws     "provide[]        that

cooperation with BAC testing [is] a condition of the privilege

of   driving    on    state    roads     and    that    the      privilege      [will]   be


      16
       Aviles v. State, 443 S.W.3d 291, 294 (Tex. Ct. App. 2014)
(holding that implied consent and blood draw statutes are not
permissible exceptions to the warrant requirement and stating
that to hold otherwise "flies in the face of McNeely's repeated
mandate that courts must consider the         totality   of the
circumstances of each case").


                                           16
                                                              No.   2015AP1261-CR.ssa


rescinded if a suspected drunk driver refuse[s] to honor that

condition."        Birchfield, 136 S. Ct. at 2169.

       ¶125 One of the petitioners in Birchfield, Michael Beylund,

complied with a law enforcement officer's demand for a blood

sample under North Dakota's implied consent law, which imposed

criminal penalties on a driver for refusal to submit to a blood

test.17       Birchfield,       136   S.   Ct.   at   2172.    Although     Beylund

submitted to the blood draw, the Birchfield court did not rely

on "implied consent" derived from the implied consent law or

acquiescence to uphold the constitutionality of the blood draw.

Rather, the Court remanded the case to the North Dakota state

court to determine whether Beylund's submission to the blood

draw    under      the   totality     of   the   circumstances      was   voluntary

consent to the search under the Fourth Amendment when he was

erroneously told that the law required his submission to the

blood       draw   and   that   the    State     could   compel     a   blood   test.

Birchfield, 136 S. Ct. at 2186.

       ¶126 Considering the text of the Wisconsin Implied Consent
Law, Padley, the United States Supreme Court language in McNeely

and Birchfield, the remand of Aviles, and the required totality

of circumstances analysis to determine voluntary consent (which

I discuss further below), I conclude that neither a Wisconsin


       17
       The Birchfield Court noted that "[t]here must be some
limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public
roads," and "conclude[d] that motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a
criminal offense." Birchfield, 136 S. Ct. at 2185-86.


                                           17
                                                                     No.   2015AP1261-CR.ssa


driver's   license       nor    the    operation         of     a    motor       vehicle    in

Wisconsin is a manifestation of actual consent to a later search

of the driver's person by means of a blood draw.                            To draw blood

without a warrant or an exception to the Fourth Amendment, the

driver's   valid    consent       under          the   Fourth       Amendment      must     be

obtained at the time of the blood draw.

                                             II

      ¶127 Whether the defendant consented in fact to the blood

draw and whether the consent was voluntarily and freely given

under the Fourth Amendment and the Wisconsin constitution are

questions of law that this court decides independently.

      ¶128 I   disagree        with        the    lead   opinion's          analyses       and

conclusions of law.

      ¶129 Consent       in    fact    is    a    question      of       historical      fact.

This court will uphold a circuit court's finding of fact "if it

is not contrary to the great weight and clear preponderance of

the   evidence."          State       v.     Artic,      2010       WI     83,    ¶30,     327

Wis. 2d 392,       786        N.W.2d 430.18              This         court,        however,
independently applies constitutional principles to these facts.19



      18
       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.        First, we
review the circuit court's findings of historical fact under a
deferential standard, upholding them unless they are clearly
erroneous.     Second, we independently apply constitutional
principles to those facts.") (internal citations omitted).
      19
       State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1,                                       733
N.W.2d 634 (citing State v. Martwick, 2000 WI 5, ¶16,                                      231
Wis. 2d 801, 604 N.W.2d 552).


                                             18
                                                           No.    2015AP1261-CR.ssa


      ¶130 In       the    instant   case,     the      record      includes    an

audiovisual        recording   of    the     exchange     during      which    the

defendant's alleged consent took place.              Just as when a case and

its factual issues are contained solely in written, documentary

evidence, I can independently analyze the audiovisual evidence

and   need   not    give   special   deference    to    the      circuit   court's

findings regarding factual issues, such as consent in fact.20




      20
       In such circumstances, the trial court's factual findings
do not carry the same weight because the "trial court's
customary opportunity to evaluate the demeanor and thus the
credibility of the witnesses . . . plays only a restricted role
. . . . "    Pullman-Standard v. Swint, 456 U.S. 273, 301-02
(1982) (Marshall, J., dissenting) (quoting United States v. Gen.
Motors Corp., 384 U.S. 127, 141 (1966) and citing Jennings v.
Gen. Med. Corp., 604 F.2d 1300, 1305 (10th Cir. 1979)); Hague v.
Liberty Mut. Ins. Co., 571 F.2d 262, 264 (5th Cir. 1978)
("Because the case was submitted to the district court in the
form of documents and transcripts, [the] burden of showing that
the district court's findings of fact were 'clearly erroneous'
is somewhat lessened.").

                                                                     (continued)
                                      19
                                                                No.    2015AP1261-CR.ssa


       ¶131 The    audiovisual          recording        undermines        the     circuit

court's      finding    of    consent      in     fact   and   the    lead       opinion's

discussion.       The defendant did utter the words "of course," but

they   are    associated       with    his   comment     that    "I    don't      want   my

license to be taken.           This is a complicated question."

       ¶132 Although the lead opinion finds that "[n]othing in the

recording      rebuts        the      officer's      testimony        as     to     Brar's

statements,"      lead       op.,   ¶33,     the    audiovisual       recording       does

conflict with the officer's testimony describing the "of course"

comment.       The lead opinion's affirmation of consent in fact

based on the recording is rebutted by the audiovisual recording.

The recording does not support the finding that the defendant

consented in fact.

     Accord Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶27,
241 Wis. 2d 804, 623 N.W.2d 751 ("This court and the circuit
court are equally able to read the written record."); State ex
rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977)
(same); Vogt, Inc. v. Int'l Bhd. of Teamsters, 270 Wis. 315, 71
N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74
N.W.2d 749 (1956) ("[The reason for the clearly erroneous
standard is that the] appellate court must give weight to the
findings of a trial court made in a contested matter upon oral
testimony where the trial judge is in a position to pass on the
credibility of the witnesses and the weight to be given to their
testimony.   He has full opportunity to observe the demeanor of
the witnesses and judge their veracity——the appellate court does
not.   The reason for the rule disappears, however, when the
appeal is presented upon no more than pleadings and affidavits,
as is the case here."); Cohn v. Town of Randall, 2001 WI App
176, ¶7, 247 Wis. 2d 118, 633 N.W.2d 674 ("We are in just as
good a position as the trial court to make factual inferences
based on documentary evidence and we need not defer to the trial
court's findings."); Racine Educ. Ass'n v. Bd. of Educ., 145
Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988) (same); Pfeifer
v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571 n.1, 360
N.W.2d 65 (Ct. App. 1984) (same).


                                             20
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     ¶133 Rather,          the    audiovisual             recording    suggests,      in    my

opinion, that the defendant was "stalling" to avoid taking the

test.     The    law   enforcement           officer        should    have      treated    the

defendant's conduct as a refusal to allow the blood test.21

     ¶134 In        sum,    based       upon        the    audiovisual       recording,       I

conclude that the defendant did not consent in fact to the blood

draw.

     ¶135 Even if the defendant consented in fact, the question

becomes whether the consent was freely and voluntarily given,

that is, whether the consent was constitutionally valid.

     ¶136 The        lead        opinion       delves        into     what       constitutes

voluntary consent, attempting to redefine the Fourth Amendment

consent      standard.                The      lead        opinion      withdraws          "any

language . . . [in the cases] that requires that consent to a

search be given knowingly and intelligently."                               Lead op., ¶27.

Thus, the lead opinion overrules a number of unnamed cases,

including       Gautreaux        v.     State,        52     Wis. 2d 489,         492,     190

N.W.2d 542 (1971), a longstanding precedent.
     ¶137 More than forty years ago in Gautreaux, the Wisconsin

Supreme     Court     stated      the       following regarding             a    defendant's

consent to a constitutionally protected search:                                 "[T]he state

     21
       See   State   v.   Rydeski,  214  Wis. 2d 101,  107,   571
N.W.2d 417 (Ct. App. 1997) (driver's conduct in insisting on
using the restroom after agreeing to take the test in order to
stall qualified as a "refusal"); Village of Elkhart Lake v.
Borzyskowski, 123 Wis. 2d 185, 191, 366 N.W.2d 506 (Ct. App.
1985) (driver who, while not verbally refusing to take
breathalyzer   test,   engaged   in  conduct  which   effectively
prevented officer from obtaining accurate breath sample refused
to take the test).


                                               21
                                                                     No.    2015AP1261-CR.ssa


has the burden of proving by clear and positive evidence the

search was the result of a free, intelligent, unequivocal and

specific consent . . . ."                 Gautreaux v. State, 52 Wis. 2d 489,

492, 190 N.W.2d 542 (1971) (emphasis added).22                        Gautreaux has not

been overruled.

       ¶138 Why      does      the    lead          opinion     attempt       to    overrule

Gautreaux now?            Because, according to the lead opinion, "we

interpret      our        constitution           consistent          with     the     Fourth

Amendment," and the United States Supreme Court has said that

"[n]othing, either in the purposes behind requiring a 'knowing'

and 'intelligent' waiver of trial rights, or in the practical

application of such a requirement suggests that it ought to be

extended to the constitutional guarantee against unreasonable

searches     and    seizures."            Lead       op.,     ¶¶19    n.8,    27    (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)).

       ¶139 This reasoning is unsound.                  First, this court need not

(and does not always) interpret Article I, Section 11 of the

Wisconsin Constitution in tandem with the Fourth Amendment to
the United States Constitution.                       See, e.g., State v. Dubose,

2005 WI 126,         ¶41, 285        Wis. 2d 143, 699           N.W.2d 582;         State v.

Eason, 2001 WI 98, ¶60, 245 Wis. 2d 206, 629 N.W.2d 625.

       ¶140 Second,       it      seems   to     me    that    the    substance      of   the

"knowing" and "intelligent" standard, even if not precisely the

same    as   used    in     the    waiver      of     constitutional         trial    rights

       22
       Citing Holt v. State, 17 Wis. 2d 468, 117 N.W.2d 626
(1962); United States v. Callahan, 439 F.2d 852 (2d Cir. 1971);
United States v. Berkowitz, 429 F.2d 921 (1st Cir. 1970).


                                               22
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discussed    in    Schneckloth,   412      U.S.    at   141,23    is   implicitly

required by the totality of the circumstances test that the

United    States   Supreme   Court    and    this   court     have     adopted    to

determine the voluntariness of consent under the federal and

state constitutions.

    ¶141 The United States Supreme Court in Schneckloth, upon

which the lead opinion relies, recognized that "knowing" and

"intelligent" play a role in determining whether valid consent

was given under the Fourth Amendment.                   The Schneckloth Court

stated:

    The traditional definition of voluntariness we accept
    today [for Fourth Amendment purposes] has always taken
    into account evidence of minimal schooling, low
    intelligence, and the lack of any effective warnings
    to a person of his rights; and the voluntariness of
    any statement taken under those conditions has been
    carefully scrutinized to determine whether it was in
    fact voluntarily given.
Schneckloth, 412 U.S. at 248.

    ¶142 The       factors   listed     in   the    Wisconsin      cases     to   be

considered   in    determining    voluntary       consent    under     the   Fourth

Amendment and the Wisconsin Constitution are similar and also


    23
       In Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973),
the United States Supreme Court declared:

    There is a vast difference between those rights that
    protect   a  fair   criminal  trial   and  the   rights
    guaranteed under the Fourth Amendment.         Nothing,
    either in the purposes of behind requiring a "knowing"
    and "intelligent" waiver of trial rights, or in the
    practical application of such a requirement suggests
    that it ought to be extended to the constitutional
    guarantee against unreasonable searches and seizures.


                                      23
                                                                    No.    2015AP1261-CR.ssa


imply     that    a        defendant's      consent         must     be      knowing     and

intelligent.          See    State    v.   Artic,      2010   WI     83,    ¶¶28-33,     327

Wis. 2d 392, 786 N.W.2d 430.

       ¶143 The Artic case sets forth the following non-exclusive

list    of   factors        to   be   considered       in     the    totality      of    the

circumstances         to    determine      whether      consent       was     freely     and

voluntarily given:

       (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
       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.
State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786 N.W.2d 430

(citing      State     v.    Phillips,      218     Wis. 2d 180,            198-203,     577

N.W.2d 794 (1998) (emphasis added).

       ¶144 Indeed, the statement in Padley 354 Wis. 2d 545, ¶64,
that consent requires a showing that a "search was the result of

a free, intelligent, unequivocal and specific consent without

any    duress    or    coercion,      actual      or    implied"          seems   to    be   a




                                            24
                                                            No.   2015AP1261-CR.ssa


shorthand form for the factors that this court has set forth in

Artic.24

      ¶145 With regard to the defendant's consent in the instant

case, it was obtained by the officer's giving the defendant

misinformation, namely that the officer did not need a warrant

to   draw    blood.25      Advising   the      defendant,   through     words   or

conduct, that a warrant was not required for a blood draw was

either      an   express   or   implied    "unlawful   assertion       of   police

authority" to take a blood draw without a warrant.26                    Moreover,

the first factor identified in Artic, "whether the police used

deception, trickery, or misrepresentation in their dialogue with




      24
       State v. Padley, 354 Wis. 2d 545, ¶64 (quoting State v.
Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Wis. Ct. App.
1993) (quoting Gautreaux, 52 Wis. 2d at 492)); accord State v.
Giebel, 2006 WI App 239, ¶18, 297 Wis. 2d 446, 724 N.W.2d 402
("Orderly submission to law enforcement officers who, in effect,
incorrectly represent that they have the authority to search and
seize property, is not knowing, intelligent and voluntary
consent under the Fourth Amendment.") (Emphasis added.).
      25
       See State v. Giebel, 2006 WI App 239, ¶18, 297
Wis. 2d 446, 724 N.W.2d 402 (citing United States v. Elliot, 210
F. Supp. 357, 360 (D. Mass. 1962) ("Orderly submission to law
enforcement officers who, in effect, incorrectly represent that
they have authority to search and seize property is not knowing,
intelligent and voluntary consent under the Fourth Amendment.").
      26
       State v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729
N.W.2d 182 (citing Johnson v. United States, 333 U.S. 10, 12-13
(1948); United States v. Morales, 171 F.3d 978, 982-83 (5th Cir.
1999); United States v. Pena-Saiz, 161 F.3d 1175, 1177 (8th Cir.
1998); United States v. Baro, 15 F.3d 563, 566-67 (6th Cir.
1994); State v. Wuest, 190 Wis. 251, 255, 208 N.W. 899 (1926);
State v. Johnson, 177 Wis. 2d 224, 228, 234, 501 N.W.2d 876 (Ct.
App. 1993)).

                                          25
                                                           No.   2015AP1261-CR.ssa


the defendant to persuade him to consent," is pertinent in the

instant case.27

     ¶146 I conclude that the defendant did not consent in fact

and that if he did, the           consent was not the            result of "an

essentially   free    and   unconstrained       choice,"    Schneckloth,      412

U.S. at 225, 227, but merely his acquiescence to an unlawful

assertion of police authority.          The officer erroneously advised

the defendant that blood could be drawn without a warrant.                    See

lead op., ¶6.      Accordingly, I conclude that the results of the

warrantless blood draw should be suppressed.

     ¶147 For the reasons set forth, I dissent.

     ¶148 I   am     authorized   to    state    that   Justice      ANN   WALSH

BRADLEY joins this opinion.




     27
       State v. Artic, 2010 WI 83, ¶33, 327 Wis. 2d 392, 786
N.W.2d 430.   See also Bumper v. North Carolina, 391 U.S. 543,
548 (1968); State v. Rodgers, 119 Wis. 2d 102, 349 N.W.2d 453
(1984) ("Acquiescence to an unlawful assertion of police
authority is not equivalent to consent.").

     See also Birchfield, 136 S. Ct. at 2187 (remanding
Beylund's case to the state courts to determine whether
submission to a blood draw after the arresting officer
erroneously advised the accused that he was subject to criminal
penalties if he refused to allow the blood draw).


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