2017 WI 77

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP450-CR

COMPLETE TITLE:

State of Wisconsin,

 Plaintiff-Appellant,

 v.

Adam M. Blackman,

 Defendant-Respondent-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 371 Wis. 2d 635, 886 N.W.2d 94 

PDC No: 2016 WI App 69 - Published

OPINION FILED: July 7, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 12, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Fond du Lac

JUDGE: Gary R. Sharpe

JUSTICES:

CONCURRED: ZIEGLER, J. concurs, joined by GABLEMAN, J. 

(opinion filed).

DISSENTED: ROGGENSACK, C.J. dissents (opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs

by Dennis M. Melowski and Melowski & Associates, LLC, Sheboygan,

with whom on the briefs were Chad A. Lanning and Lubar & 

Lanning, LLC, West Bend, and oral argument by Dennis M. 

Melowski.

For the plaintiff-appellant there was a brief by Michael C. 

Sanders, assistant attorney general, and Brad D. Schimel, 

attorney general, and an oral argument by Michael C. Sanders.
2017 WI 77

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP450-CR

(L.C. No. 2013CF659)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Appellant,

 v.

Adam M. Blackman,

 Defendant-Respondent-Petitioner.

FILED

JUL 7, 2017

Diane M. Fremgen

Clerk of Supreme Court

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

remanded. 

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

published decision of the court of appeals reversing a decision 

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

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

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

 

1 State v. Blackman, 2016 WI App 69, 371 Wis. 2d 635, 886 

N.W.2d 94. 
No. 2015AP450-CR 

2

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

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

¶2 The issue presented is whether the consequences for

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

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

whether that misrepresentation rendered Blackman's consent to 

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

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

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.

3 Blackman presented three issues in his petition for 

review: 

1. Whether the circuit court properly suppressed Mr. 

Blackman's warrantless blood test because he was 

unconstitutionally coerced into taking the test when 

he was read the informing the accused form which 

incorrectly told him that he faced a revocation and 

other penalties if he refused chemical testing, when 

he was actually only facing a possible arrest?

2. Whether the circuit court below properly suppressed 

Mr. Blackman's blood test where Mr. Blackman was 

unconstitutionally coerced into taking the blood test, 

under the totality of the circumstances, when he 

acquiesced to the unlawful assertion by the officer 

that they take blood samples in cases like his——in 

addition to being told that he faced a revocation and 

other penalties if he refused? 

3. Whether Section 343.305(3)(ar)2. is 

unconstitutional on its face and as-applied because it 

coerces consent to otherwise unconstitutional searches 

without due process of law?

(continued)
No. 2015AP450-CR 

3

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

voluntary consent under the Fourth Amendment, the issue becomes 

whether the court should apply the good faith exception to the 

exclusionary rule and admit the evidence of the blood alcohol 

concentration from the blood draw.

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

the court of appeals, affirm the suppression order of the 

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

the exclusionary rule in the instant case. 

¶4 The Fourth Amendment ordinarily requires a search 

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

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

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

to the warrant requirement at issue is whether Blackman's 

consent to the blood draw was given freely and voluntarily under 

the Fourth Amendment. When the legality of a warrantless search 

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

freely and voluntarily given. State v. Johnson, 2007 WI 32, 

¶16, 299 Wis. 2d 675, 729 N.W.2d 182 (citing State v. Phillips, 

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

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

 

We need not and do not address the second and third issues 

presented. The second issue is substantially the same as the 

first issue. Our decision on the first issue is dispositive of 

the instant case. Accordingly, we need not and do not address 

the third issue challenging the constitutionality of Wis. Stat. 

§ 343.305(3)(ar)2. 
No. 2015AP450-CR 

4

¶5 Blackman submitted to a blood draw after Deputy 

Sheriff John Abler stated the consequences of refusing to submit 

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

offense) was told that his operating privilege would be revoked 

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

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

offense would prevail at a refusal hearing and his operating 

privilege would not be revoked. See Wis. Stat. 

§ 343.305(9)(a)5.a. 

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

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

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

and voluntarily given under the Fourth Amendment. Because the 

exclusionary rule's deterrent effect will be served in instant 

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

decline to apply the good faith exception to the exclusionary 

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

suppressed. 

¶7 Accordingly, the cause is remanded to the circuit 

court to reinstate its order suppressing the evidence and for 

further proceedings not inconsistent with the decision of this 

court.

¶8 Our decision is organized as follows: 

I. We state the facts. 

II. We state the standard of review.

III. Our analysis proceeds as follows: 
No. 2015AP450-CR 

5

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

license revocation is a statutory consequence had 

Blackman refused to submit to a chemical test under 

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

not.

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

draw was obtained through misrepresentation, 

rendering his consent coerced, that is, not voluntary 

and free consent under the Fourth Amendment. We 

conclude that the consent was obtained through 

misrepresentation and was coerced. 

(C) We determine whether to apply the good faith 

exception to the exclusionary rule in the instant 

case. We conclude that the good faith exception does 

not apply in the instant case. 

I

¶9 For purposes of the motion to suppress evidence of 

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

in dispute. 

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

Blackman was driving his car in a northeast direction on County 

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

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

turning, his car collided with a bicyclist travelling in a 

southwest direction on County Highway WH. 

¶11 A witness at the scene explained that Blackman's car 

collided with the bicyclist, causing the bicyclist to "fly up in 
No. 2015AP450-CR 

6

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

suffered great bodily harm, including a mandibular fracture, 

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

vertebrae fracture, liver laceration, lung contusion, and a 

subdural hemorrhaging brain bleed. 

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

bicyclist. 

¶13 Shortly after the collision, Fond du Lac Deputy 

Sheriff John Abler was dispatched to the scene. 

¶14 Deputy Sheriff Abler testified at the suppression 

hearing that he had reason to believe that Blackman may have 

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

bicyclist and that the bicyclist sustained great bodily harm. 

¶15 Deputy Sheriff Abler also testified that before the 

blood test was administered he did not have reason to believe 

that Blackman was under the influence of intoxicants. Deputy 

Sheriff Abler testified in response to questions by the 

prosecutor about any signs of intoxication as follows: 

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

A: That's correct.

Q: You noticed no slurred speech

A: That is correct.

Q: You noticed no bloodshot eyes?

A: Correct.

Q: You noticed no glassy eyes?

A: Correct.
No. 2015AP450-CR 

7

Q: You noticed no glassy eyes?

A: Correct.

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

coordination?

A: I did not notice anything.

Q: You did not notice any mental impairment on his 

part, meaning it didn't seem like he was intoxicated 

or impaired in any way. Would you agree?

A: I agree.

Q: Okay. And, in fact, during your entire contact with 

Mr. Blackman, you never observed anything that you 

would have attributed to even the consumption of 

alcohol. Would you agree?

A: I agree.

¶16 Despite the absence of any signs that Blackman was 

intoxicated, Deputy Sheriff Abler testified that he explained to 

Blackman that it was "standard operating procedure for the 

department, when drivers are involved in accidents of a serious 

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

hospital and submitted to a blood test. Although Blackman rode 

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

considered under arrest. 

¶17 At the hospital, Deputy Abler read the statutory 

Informing the Accused Form4 to Blackman verbatim and requested 

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

revealed an alcohol concentration of .104.

 

4 The form is set forth verbatim in Wis. Stat. § 343.305(4). 
No. 2015AP450-CR 

8

¶18 The State charged Blackman with multiple offenses: 

Reckless driving causing great bodily harm,5 injury by 

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

prohibited alcohol concentration (PAC),7 operating a motor 

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

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

¶19 At a pretrial suppression hearing, the circuit court 

suppressed the evidence obtained from the blood draw on the 

ground that Blackman's consent was obtained by misstatements 

about the consequences of his refusal to take the test and 

therefore his consent was coerced. 

¶20 According to the circuit court, the Informing the 

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

declaring that the refusal to take a test under 

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

operating privilege. The circuit court concluded that 

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

would be "statutorily unenforceable" because the issues at a 

refusal hearing are "limited to" whether the officer had 

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

 

5 Wis. Stat. § 346.62(4). 

6 Wis. Stat. § 940.25(1)(a).

7 Wis. Stat. § 940.25(1)(b). 

8 Wis. Stat. § 346.63(2)(a)1. 

9 Wis. Stat. § 346.63(2)(a)2. 
No. 2015AP450-CR 

9

officer complied with and read the Informing the Accused form, 

and whether the driver refused to permit the test. 

¶21 Because the Deputy Sheriff had no probable cause to 

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

concluded that "if the statutory scheme does not support a 

revocation that is threatened, this Court finds that coercion 

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

blood test suppressed. 

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

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

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

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

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

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

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

statute did not "transform Blackman's freely given actual 

consent under Wisconsin's implied consent law into a coerced 

submittal." State v. Blackman, 2016 WI App 69, ¶¶2, 5, 10-12,

371 Wis. 2d 635, 886 N.W.2d 94.

¶23 The concurring opinion in the court of appeals 

acknowledged that Blackman had a "legitimate gripe" about the 

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

form is "technically correct," it is "incomplete and imprecise,
No. 2015AP450-CR 

10

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

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

10 

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

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

remand the cause to the circuit court for further proceedings 

not inconsistent with the decision of this court.

II

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

of an order granting or denying a motion to suppress evidence 

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

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

question of constitutional fact under a two-step inquiry: 

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

unless those findings are clearly erroneous. Second, we conduct 

an independent, de novo analysis of the application of 

constitutional principles to the facts found. State v. 

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

¶26 We are also asked to interpret and apply Wis. Stat. 

§ 343.305, the implied consent law. Interpretation and 

application of a statute is generally a question of law that 

this court decides independently of the circuit court or court 

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

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

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

 

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

concurring).
No. 2015AP450-CR 

11

III

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

the consequences for refusing to submit to a blood test 

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

misrepresented to Blackman and, if so, whether that 

misrepresentation rendered Blackman's consent to the blood draw 

coerced under the Fourth Amendment. We answer both parts of 

this question in the affirmative. 

A

¶28 We first consider the statutory provisions. 

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

or operates a motor vehicle upon the public highways of 

Wisconsin is "deemed to have given consent to one or more tests 

of his or her breath, blood, or urine . . . when requested to do 

so by a law enforcement officer under [Wis. Stat. § 343.305] 

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

or (b)." 

¶30 In the instant case, Deputy Sheriff Abler requested 

Blackman to submit to a blood draw pursuant to Wis. Stat. 

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

If a person is the operator of a vehicle that is 

involved in an accident that causes the death of or 

great bodily harm to any person and the law 

enforcement officer has reason to believe that the 

person violated any state or local traffic law, the 

officer may request the operator to provide one or 

more samples of his or her breath, blood, or 

urine . . . . If a person refuses to take a test under 

this subdivision, he or she may be arrested under par. 

(a). (Emphasis added.)
No. 2015AP450-CR 

12

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

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

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

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

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

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

operating privilege will be revoked. 

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

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

blood draw without having a scintilla of a suspicion that the 

driver is intoxicated. The officer need have reason to believe 

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

in an accident that caused great bodily harm.12

¶35 Fourth, the State argues that if Blackman were 

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

 

11 Upon a Wis. Stat. § 343.305(3)(ar)2. refusal, the person 

may be arrested, and asked to submit to a test under 

§ 343.305(3)(a). A refusal under § 343.305(3)(a) will lead to 

revocation and "other penalties" under § 343.305(9)(a): "If a 

person refuses to take a test under sub. (3)(a), the law 

enforcement officer shall immediately prepare a notice of intent 

to revoke . . . ."

In discussing arrest in the instant case, the circuit court 

exclaimed: "The question of the century is arrested for what?"

12 In 2009, the legislature added Wis. Stat. 

§ 343.305(3)(ar)2. to the implied consent law. See 2009 Wis. 

Act 163. Prior to this Act, a law enforcement officer was 

authorized to request that a driver submit to a test only after 

the driver had been arrested for an OWI-related violation or the 

officer had probable cause to believe the driver was under the 

influence. See Wis. Stat. § 343.305(3)(a)-(b) (2006-07).
No. 2015AP450-CR 

13

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

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

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

revoke Blackman's operating privilege by court order under 

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

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

§§ 343.305(3)(a) and 343.305(9)(a).13 

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

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

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

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

Accused" form. 

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

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

 

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

part: 

[U]pon arrest subsequent to a refusal under par. (ar), 

a law enforcement officer may request the person to 

provide one or more samples of his or her breath, 

blood or urine for the purpose specified under sub. 

(2). Compliance with a request for one type of sample 

does not bar a subsequent request for a different type 

of sample. 

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

(9) Refusal; Notice and Court Hearing. (a) If a 

person refuses to take a test under sub. (3)(a), the 

law enforcement officer shall immediately prepare a 

notice of intent to revoke, by court order under sub. 

(10) . . . .
No. 2015AP450-CR 

14

Wis. Stat. § 343.305(4) Information. [At the time 

that a chemical test specimen is requested under sub.

(3)(a), (am), or (ar), the law enforcement officer 

shall read the following to the person from whom the 

test specimen is requested]:[

14]

You have either been arrested for an offense that 

involves driving or operating a motor vehicle while 

under the influence of alcohol or drugs, or both, or 

you are the operator of a vehicle that was involved in 

an accident that caused the death of, great bodily 

harm to, or substantial bodily harm to a person, or 

you are suspected of driving or being on duty time 

with respect to a commercial motor vehicle after 

consuming an intoxicating beverage.

This law enforcement agency now wants to test one or 

more samples of your breath, blood or urine to 

determine the concentration of alcohol or drugs in 

your system. If any test shows more alcohol in your 

system than the law permits while driving, your 

operating privilege will be suspended. If you refuse 

to take any test that this agency requests, your 

operating privilege will be revoked and you will be 

subject to other penalties. The test results or the 

fact that you refused testing can be used against you 

in court.

If you take all the requested tests, you may choose to 

take further tests. You may take the alternative test 

that this law enforcement agency provides free of 

charge. You also may have a test conducted by a 

qualified person of your choice at your expense. You, 

however, will have to make your own arrangements for 

that test.

If you have a commercial driver license or were 

operating a commercial motor vehicle, other 

consequences may result from positive test results or 

from refusing testing, such as being placed out of 

service or disqualified. (Emphasis added.)

 

14 We include this introductory material to demonstrate that 

the legislature requires a law enforcement officer to read the 

full text. We assume that the law enforcement officer did not 

read this introductory material to Blackman. 
No. 2015AP450-CR 

15

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

the statute applicable in the instant case. The form states 

that if a driver refuses to take any test under 

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

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

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

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

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

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

operating privilege would be revoked if he failed to request a 

refusal hearing. 

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

him is erroneous as a matter of law, misrepresented the 

consequences if he refused a blood test, and rendered his 

consent to the blood test coerced consent under the Fourth 

Amendment. 

¶40 We agree with Blackman that revocation of the 

operating privilege is unenforceable against a driver who has 

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

requests a refusal hearing. 

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

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

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

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

states in part: 

If a person refuses to take a test under sub. (3)(a), 

the law enforcement officer shall immediately prepare 
No. 2015AP450-CR 

16

a notice of intent to revoke, by court order under 

sub. (10), the person's operating privilege.15 

¶42 Following receipt of notice of the State's intent to 

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

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

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

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

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

See also § 343.305(10)(a). 

¶43 Regarding the refusal hearing, Wis. Stat. 

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

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

a. Whether the officer had probable cause to 

believe the person was driving or operating a 

motor vehicle while under the influence of 

alcohol, a controlled substance or a controlled 

substance analog or any combination of alcohol, a 

controlled substance and a controlled substance 

 

15 Under Wis. Stat. § 343.305(10)(a), the circuit court 

shall revoke the driver's license only after it determines that 

the driver improperly refused to take a test or that the driver 

did not request a refusal hearing. Section 343.305(10)(a) 

provides: 

(a) If the court determines under sub. (9)(d) that a 

person improperly refused to take a test or if the 

person does not request a hearing within 10 days after 

the person has been served with the notice of intent 

to revoke the person's operating privilege, the court 

shall proceed under this subsection. If no hearing 

was requested, the revocation period shall begin 30 

days after the date of the refusal. If a hearing was 

requested, the revocation period shall commence 30 

days after the date of refusal or immediately upon a 

final determination that the refusal was improper, 

whichever is later.
No. 2015AP450-CR 

17

analog, under the influence of any other drug to 

a degree which renders the person incapable of 

safely driving, or under the combined influence 

of alcohol and any other drug to a degree which 

renders the person incapable of safely driving, 

having a restricted controlled substance in his 

or her blood, or having a prohibited alcohol 

concentration . . . .

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

c. Whether the person refused to permit the 

test. . . . (Emphasis added.) 

¶44 Were Blackman to have had a refusal hearing, the 

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

the officer had probable cause to believe that the driver was 

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

that the officer complied with reading the Informing the Accused 

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

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

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

Deputy Sheriff had probable cause to believe that Blackman was 

driving or operating a motor vehicle while under the influence 

of alcohol——Blackman's operating privilege would not have been 

revoked at the refusal hearing. 

¶45 The State challenges this interpretation and 

application of Wis. Stat. § 343.305. 

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

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

 

16 Wisconsin Stat. § 343.305(4) pertains to reading the 

Informing the Accused form to the driver. 
No. 2015AP450-CR 

18

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

arrest the driver. On arrest, the driver comes under 

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

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

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

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

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

¶47 The State acknowledges that Deputy Sheriff Abler did 

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

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

process. But the State argues that the Deputy Sheriff properly 

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

operating privilege would be revoked. 

¶48 The State further contends that Blackman would have 

had his operating privilege revoked at the refusal hearing 

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

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

may raise at a refusal hearing are whether he or she was read 

the Informing the Accused form and whether he or she actually 

refused to submit to a chemical test. 

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

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

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

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

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

probable cause to arrest for an OWI-related offense at a refusal 

hearing; the legislature intended that the only issues at the 
No. 2015AP450-CR 

19

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

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

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

the failure to remove an OWI-related probable cause 

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

was a drafting error.17 

¶50 An alternative interpretation, however, which we 

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

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

that it did not remove the OWI-related probable cause 

requirement from a refusal hearing. The text of the statute 

clearly provides that when an officer requests a blood test 

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

prevail at the refusal hearing because probable cause is a 

prerequisite to revocation of an operating license. 

¶51 Because the State cannot prevail at a refusal hearing 

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

Wis. Stat. § 343.305(3)(ar)2., the Deputy Sheriff's reading of 

the text of the "Informing the Accused" form misstated that 

Blackman's operating privilege will be revoked. 

 

17 The court of appeals seemed persuaded in the instant case 

that the legislature committed a drafting error. The court of 

appeals wrote: "The fact that Blackman could have prevailed at 

a refusal hearing due to the legislature's failure to amend the 

refusal hearing statute does not transform Blackman's freely 

given actual consent under Wisconsin's implied consent law into 

a coerced submittal." Blackman, 371 Wis. 2d 635, ¶12 (emphasis 

added).
No. 2015AP450-CR 

20

B

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

blood draw was obtained through misrepresentation, rendering his 

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

the Fourth Amendment. 

¶53 Blood draws are searches under the Fourth Amendment to 

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

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

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

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

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

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

 

18 The Fourth Amendment to the United States Constitution

provides: 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons 

or things to be seized.

19 Article I, Section 11 of the Wisconsin Constitution

provides: 

The right of the people to be secure in their persons, 

houses, papers, and effects against unreasonable 

searches and seizures shall not be violated; and no 

warrant shall issue but upon probable cause, supported 

by oath or affirmation, and particularly describing 

the place to be searched and the persons or things to 

be seized.
No. 2015AP450-CR 

21

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

exception to the Fourth Amendment's warrant requirement. The 

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

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

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

Further, the State must satisfy that burden by clear and 

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

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

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

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

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

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

The circuit court found that the defendant consented to 

providing a blood sample but concluded that the consent was 

coerced. 

 

20 The State appears to argue that, under the implied 

consent law, all persons are deemed to have given actual consent 

to a blood draw when they operate a vehicle on a Wisconsin 

highway. The State does not argue, however, that law 

enforcement officers have the authority to compel drivers to 

submit to a blood draw without a warrant or an exception to the 

warrant requirement. The State acknowledges that drivers have a 

"statutory opportunity to withdraw [their] consent." Brief and 

Supplemental Appendix of Plaintiff-Appellant-Petitioner (State 

of Wisconsin) at 17. According to the State, a driver's choice 

when asked to submit to a blood test "is to submit and affirm 

the consent the person has already given, or refuse and withdraw 

that consent, and face penalties." Brief and Supplemental 

Appendix of Plaintiff-Appellant-Petitioner (State) at 10. 

Withdrawal of consent is not an issue in the instant case. 
No. 2015AP450-CR 

22

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

must prove that the consent was given voluntarily and freely. 

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

Voluntary consent must be "'an essentially free and 

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

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

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

¶57 The determination of voluntariness is based upon an 

evaluation of the totality of the surrounding circumstances. 

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

aspect of the totality of circumstances in the instant case.

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

that the officer inaccurately advised the accused that the law 

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

remanded the cause to the state court to reevaluate the 

accused's consent in light of the inaccuracy. 

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

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

whether consent was given voluntarily: 

(1) whether the police used deception, trickery, or 

misrepresentation in their dialogue with the defendant 

to persuade him to consent; (2) whether the police 

threatened or physically intimidated the defendant or 

 

21 See also Bumper v. North Carolina, 391 U.S. 543, 548-49

(1968): "[A] prosecutor [who] seeks to rely upon consent to 

justify the lawfulness of a search[ ] has the burden of proving 

that the consent was, in fact, freely and voluntarily given.").
No. 2015AP450-CR 

23

"punished" him by the deprivation of something like 

food or sleep; (3) whether the conditions attending 

the request to search were congenial, non-threatening, 

and cooperative, or the opposite; (4) how the 

defendant responded to the request to search; (5) what 

characteristics the defendant had as to age, 

intelligence, education, physical and emotional 

condition, and prior experience with the police; and 

(6) whether the police informed the defendant that he 

could refuse consent.

Artic, 327 Wis. 2d 392, ¶33 (citing Phillips, 218 Wis. 2d at 

198-203) (emphasis added).

¶60 Although the most pertinent consideration in the 

instant case is whether misrepresentation rendered Blackman's 

consent coerced, we also consider the other factors described in 

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

¶61 Here are the other considerations. This was 

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

indicate that Blackman was physically intimidated or that 

Blackman was uncooperative. The Deputy Sheriff testified that 

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

did not specifically agree or disagree or refuse or give any 

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

 

22 The prosecutor's question and the Deputy Sheriff's answer 

at the suppression hearing regarding whether Blackman was 

coerced into taking a blood test is as follows:

Q: [Prosecutor] . . . Is there anything else you can 

tell me that would give us some information as to 

whether or not Mr. Blackman was forced or coerced or 

threatened in any way to consent to an evidentiary 

chemical test of his blood?

A: [Deputy Sheriff Abler] No, he was not. In fact he 

was very cooperative throughout the whole procedure.

(continued)
No. 2015AP450-CR 

24

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

informed that his operating privilege would be revoked if he 

refused the request for a blood draw.

¶62 We therefore address the effect of the Deputy 

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

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

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

product of misrepresentation by the State, and under the 

totality of the circumstances, the State has not carried its 

burden of proving that Blackman's consent was voluntarily and 

freely given under the Fourth Amendment. The State did not 

 

The circuit court's questioning of the Deputy Sheriff about 

Blackman's taking a blood test is as follows: 

Q: [The Circuit Court] Did you tell him why you were 

going to the hospital and why he should ride in your 

car? 

A: [Deputy Sheriff Abler] Well, I'm sure I told him 

that. I know I explained our normal procedure is when 

there is a serious accident like this that we do take 

blood samples. 

Q: Okay. So he knew he was going to the hospital for 

a blood sample? 

A: Yes, he did. 

Q: Did he say anything to you about agreeing to have a 

blood sample and when you got in the car and before 

you guys took off to go to the hospital? 

A: I don't know that he specifically agreed, but he 

did not disagree or refuse or give me any indication 

that he was going to refuse. 
No. 2015AP450-CR 

25

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

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

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

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

The text of the form advised Blackman that the Deputy Sheriff 

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

inaccurately advised Blackman of the penalty for refusal. The 

text of the form inaccurately advised Blackman that his 

operating privilege would be revoked. This penalty did not 

apply to Blackman.

¶65 The Deputy Sheriff advised Blackman that the 

Department's standard operating procedure was to take blood 

under the circumstances in the instant case. Although the 

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

performed without his consent, Blackman could have drawn this 

inference from the statement of the Department's policy and 

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

blood test. 

¶66 Considering the totality of the circumstances, we 

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

Blackman voluntarily and freely consented to the blood draw 

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

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

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

express or implied, and therefore was invalid under the Fourth 

Amendment. 
No. 2015AP450-CR 

26

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

the result of an unlawful search.

C

¶68 Ordinarily, evidence obtained through an unlawful 

search is excluded at trial. The exclusionary rule generally 

serves to "deter deliberate, reckless, or grossly negligent 

conduct, or in some circumstances recurring or systemic 

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

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

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

exclusionary rule applies as follows:

To trigger the exclusionary rule, police conduct must 

be sufficiently deliberate that exclusion can 

meaningfully deter it, and sufficiently culpable that 

such deterrence is worth the price paid by the justice 

system. As laid out in our cases, the exclusionary 

rule serves to deter deliberate, reckless, or grossly 

negligent conduct, or in some circumstances recurring 

or systemic negligence.

¶69 The State asks that the results of the blood draw in 

the instant case be admitted in evidence because Deputy Sheriff 

Abler acted in good faith.

¶70 Courts have applied the good faith exception and 

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

and in limited circumstances. The good faith exception has 

generally been applied when a law enforcement officer has 

reasonably and objectively relied on settled law (whether 

statute23 or binding judicial precedent24) that was subsequently 

 

23 Illinois v. Krull, 480 U.S. 340, 349-50 (1987).
No. 2015AP450-CR 

27

overruled or a warrant that was subsequently invalidated25 or 

that was based on erroneous information resulting from isolated 

police negligence attenuated from the arrest.26

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

applying the good faith exception to the exclusionary rule to a 

situation in which a law enforcement officer followed the 

requirements of a statute and gave an accused inaccurate 

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

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

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

 

24 Davis v. United States, 564 U.S. 229, 241 (2011).

25 Arizona v. Evans, 514 U.S. 1, 14 (1995); United States v. 

Leon, 468 U.S. 897, 918 (1984).

Although the court often interprets Article I, Section 11 

of the Wisconsin Constitution in conformity with the 

interpretation of the Fourth Amendment, in State v. Eason, 2001 

WI 98, ¶3, 245 Wis. 2d 206, 629 N.W.2d 625, the court adopted a 

"Leon-plus" good faith rule relying on Article I, Section 11 of 

the Wisconsin Constitution. The court concluded that this 

provision "guarantees more protection than the Fourth Amendment 

provides under the good faith exception as adopted in Leon:"

We hold that the good faith exception applies where 

the State has shown, objectively, that the police 

officers reasonably relied upon a warrant issued by an 

independent magistrate. The burden is upon the State 

to also show that the process used in obtaining the 

search warrant included a significant investigation 

and a review by either a police officer trained and 

knowledgeable in the requirements of probable cause 

and reasonable suspicion, or a knowledgeable 

government attorney. (Emphasis added.)

26 Herring v. United States, 555 U.S. 135, 137, 147-48 

(2009).
No. 2015AP450-CR 

28

law enforcement officer cannot be expected to question a 

legislative enactment or Department procedure; that the 

exclusionary rule is not intended to deter the legislature; and 

that the exclusionary rule's deterrent effect on law enforcement 

conduct would not be served by suppressing the evidence of the

blood draw in the instant case. 

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

the instant case is not an error attributable solely to the 

legislature. Nor does the instant case present an isolated or 

nonrecurring error in the criminal justice system. It evinces 

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

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

constitutional right under the Fourth Amendment, unless another 

exception to the warrant requirement exists, for law enforcement 

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

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

Unless the evidence in the instant case is suppressed, law 

enforcement officers across the state will continue to read the 

Informing the Accused form to accuseds in the same situation as 

Blackman without providing correct information to provide the 

basis for the accused's voluntary consent. 

¶74 The exclusionary rule's deterrent effect will be 

served if the evidence in the instant case is suppressed. 

¶75 The application of the good faith exception to the 

exclusionary rule is not appropriate in the instant case. 

Accordingly, we conclude that the evidence of Blackman's blood 

test should be suppressed.
No. 2015AP450-CR 

29

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

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

holding that the misrepresentation in the Informing the Accused 

Form requires suppression of the evidence and that the good 

faith exception to the exclusionary rule does not apply in the 

instant case. The dissent errs. Smith is inapposite.

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

in the Informing the Accused Form was not challenged as 

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

¶¶65, 77. 

¶78 The alleged misrepresentation in Smith was that the 

law enforcement officer gave additional information that was 

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

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

accused did not take the breath test and faced a refusal 

hearing.

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

argued at the refusal hearing that the deputy gave him incorrect 

information about the penalties under Louisiana law and that 

therefore his refusal was justified. The court was unconvinced 

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

that the Informing the Accused Form accurately stated Wisconsin 

law and that neither the deputy nor the accused believed that 

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

¶¶81, 82.

¶80 The accused also alleged that the deputy gave him an 

additional item of misinformation. Because no factual finding 
No. 2015AP450-CR 

30

had been made about this allegation, the court assumed for 

purposes of its decision that the deputy misinformed the accused 

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

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

the accused could request a refusal hearing within 10 days. 

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

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

prima facie showing that the deputy's erroneous statement about 

the timing of the refusal hearing contributed to his refusal to 

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

accused failed to make this essential showing. Accordingly, the 

court concluded that the accused improperly refused to submit to 

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

Wis. 2d 65, ¶¶87-89. 

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

Amendment rights regarding a breath or blood test, the concept 

of voluntary consent under the Fourth Amendment, or the 

exclusionary rule. These issues were not raised in the Smith

decision. The Smith case is not pertinent to the instant case.

* * * *

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

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

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

voluntarily and freely given under the Fourth Amendment. 

¶84 Because the exclusionary rule's deterrent effect will 

be served by suppressing the evidence of Blackman's blood test, 

we decline to apply the good faith exception to the exclusionary 
No. 2015AP450-CR 

31

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

suppressed. 

¶85 Accordingly, the cause is remanded to the circuit 

court to reinstate the order suppressing the evidence and for 

further proceedings not inconsistent with the decision of this 

court. 

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

reversed and the cause remanded. 
No. 2015AP450-CR.akz

1

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

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

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

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

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

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

"misrepresentation" is being used in the context of law 

enforcement reading a required form completely accurately but 

the standard form that was read verbatim inaccurately stated the 

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

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

of occasions where law enforcement may appropriately use 

"misrepresentations" in the context of an investigation or 

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

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

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

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

the identity of its agents." (citations omitted)); United States 

v. Peters, 153 F.3d 445, 464 (7th Cir. 1998) (Easterbrook, J., 

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

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

important and legitimate role in law enforcement.").

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

used not because law enforcement spoke in an effort to induce 

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

language on the form read misrepresented what the law actually 

was. Thus, it is not law enforcement action that caused the 
No. 2015AP450-CR.akz

2

misrepresentation, but rather the inaccuracy of the form, 

properly read verbatim, that inaccurately informed the defendant 

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

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

with a more typical scenario involving misrepresentations made 

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

that any misrepresentation by law enforcement would 

automatically render a subsequent action to be deemed coerced. 

One does not automatically influence the other. 

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

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

constitutional theory behind Wisconsin's implied consent law. 

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

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

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

the reader that this decision should not be interpreted as doing 

so. 

¶90 Third, I do not join that part of the opinion which 

discusses the inferences that Blackman might have drawn from one 

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

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

policy to draw blood and what Blackman might have thought that 

 

1 When it comes to misrepresentations by law enforcement, 

the proposition that misrepresentation is or is not deemed to be 

permissible oversimplifies the reality of when or if a 

misrepresentation by law enforcement has been approved by the 

courts. See, e.g., Lewis v. United States, 385 U.S. 206, 208-09 

(1966); United States v. Peters, 153 F.3d 445, 464 (7th Cir. 

1998) (Easterbrook, J., concurring).
No. 2015AP450-CR.akz

3

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

the meaning of the statement is not necessary to the disposition 

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

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

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

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

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

typical reasonable person have understood by the exchange 

between the officer and the suspect?"). 

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

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

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

holding today, the exclusionary rule is inappropriate only when 

the officer reasonably relies on clear and settled precedent. 

Our holding does not affect the vast majority of cases where 

neither this court nor the United States Supreme Court have 

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

v. United States, 564 U.S. 229, 238-39 (2011) (listing cases). 

In my view, the facts of this case do not constitute one of the 

rare occasions where the good faith exception applies. This is 

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

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

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

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

Instead, the law enforcement officer inaccurately explained 

existing law, and this error might continue to occur in the 

future such that the deterrent effect will be served by the 
No. 2015AP450-CR.akz

4

suppression of evidence. While deterrent effect is not the sole 

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

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

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

sufficient' one. The analysis must also account for the 

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

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

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

inconsistent with this approach.

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

information given to Blackman in the instant case was inaccurate 

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

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

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

¶93 For the foregoing reasons, I respectfully concur.

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

GABLEMAN joins this opinion.
No. 2015AP450-CR.pdr

1

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

Wisconsin's legislature repeatedly has enacted laws to lessen 

the carnage that drunk drivers inflict on those who use 

Wisconsin roads. Today, the majority opinion overturns 

legislation that holds those who drive with a prohibited alcohol 

concentration responsible for the injuries they cause by 

violating a traffic law when their intoxication is not readily 

apparent. 

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

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

enforcement coercion; the majority opinion misinterprets the 

relevant statutes; and Deputy Sheriff Abler acted with a good 

faith belief that he was doing what the statutes required. 

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

Accused form to Adam Blackman was not sufficient to overcome

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

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

controlling statutes, correctly interpreted, comport with the 

deputy's reading the Informing the Accused form to Blackman; and 

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

statutes required. Accordingly, I would affirm the court of 

appeals, and I respectfully dissent from the majority opinion. 

I. BACKGROUND

¶97 The majority opinion ably sets forth most of the 

factual background of this controversy, so I shall relate only 

those facts necessary to attuning the reader to my discussion 

that follows. 
No. 2015AP450-CR.pdr

2

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

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

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

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

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

bicyclist. 

¶99 While medical personnel were attending to the injured 

bicyclist, Deputy Sheriff Abler spoke with Blackman, who had 

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

believed that Blackman violated a traffic law by not yielding 

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

turn. 

¶100 Because of the great bodily harm that the bicyclist 

suffered, Abler asked Blackman to provide a blood sample. 

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

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

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

read before a chemical evidentiary test is undertaken based on a 

driver's alleged traffic violation that causes great bodily harm 

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

§ 343.305(3)(ar)2. 

¶101 The Informing the Accused form describes civil 

penalties that may follow from refusing to permit a chemical 

test. The following questions were asked of the deputy about 

his interactions with Blackman and Blackman's consent to the 

evidentiary test in response to the Informing the Accused form. 

Q Do you recall, did Mr. Blackman consent to an 

evidentiary chemical test of his blood?
No. 2015AP450-CR.pdr

3

A Yes, he did.

Q Okay. At that time do you recall, did Mr. 

Blackman have any questions for you about the 

nature of that form?

A No, I don't recall any questions.

Q Okay. At the time that was read, was Mr. 

Blackman confined in any way?

A No, other than the fact that we were just sitting 

in a room at the hospital.

Q Okay. Is there anything else that you can tell 

me that would give us some information as to 

whether or not Mr. Blackman was forced or coerced 

or threatened in any way to consent to an 

evidentiary chemical test of his blood?

A No, he was not. In fact, he was very cooperative 

throughout the whole procedure. 

. . . .

THE COURT: Did you tell him why you were going 

to the hospital and why he should ride in your car?

THE WITNESS: Well I'm sure I told him that. I 

know I explained our normal procedure is when there is 

a serious accident like this that we do take blood 

samples.

THE COURT: Okay. So he knew he was going to the 

hospital for a blood sample?

THE WITNESS: Yes, he did.

THE COURT: Did he say anything to you about 

agreeing to have a blood sample and when you got in 

the car and before you guys took off to go to the 

hospital?

THE WITNESS: I don't know that he specifically 

agreed, but he did not disagree or refuse or give me 

any indication that he was going to refuse. 

¶102 Blackman, who was 20 years of age on the date he was 

requested to give a blood sample, reaffirmed his consent and his 
No. 2015AP450-CR.pdr

4

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

concentration. He was charged with several crimes that related 

to his unlawful blood alcohol concentration and the great bodily 

harm the bicyclist suffered. 

¶103 Blackman moved to suppress the results of his blood 

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

misinformed him that he faced the civil penalty of license 

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

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

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

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

as applied to him. 

¶104 The circuit court concluded that Abler did not 

misinform Blackman "because the potential for revocation was 

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

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

motion to suppress because it concluded Blackman's consent was 

coerced when he was told that if he refused to permit a blood 

draw his operating privileges would be revoked. The court based 

this "coercion" on its conclusion that revocation for refusal 

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

unenforceable." The court concluded that Wis. Stat. 

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

probable cause to arrest Blackman for a driving while 

 

1 The record reflects that Adam Blackman was born November 

23, 1992 and his blood sample was drawn on June 22, 2013, the 

date of the offenses. 
No. 2015AP450-CR.pdr

5

intoxicated offense when the deputy had no facts to support 

probable cause at the time the blood sample was taken. 

¶105 The court of appeals reversed. It concluded that 

Blackman was correctly informed that if he withdrew the consent 

he first provided by driving on the Wisconsin roadways and 

refused to submit to the requested blood draw, his operating 

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

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

¶106 The majority opinion disagrees with the court of 

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

II. DISCUSSION

A. Standard of Review

¶107 Whether Blackman's reaffirmation of his consent to 

search was voluntarily given, in contrast to being obtained by 

law enforcement coercion, is a question of constitutional fact. 

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

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

Id. at 191. Historical facts relevant to consent are affirmed 

unless clearly erroneous. Id. at 190. Voluntary consent is 

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

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

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

voluntariness is a question of law that we decide after 

considering the totality of the circumstances. Id. at 198 

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

circumstances include "both the circumstances surrounding the 

consent and the characteristics of the defendant." Id. (citing 
No. 2015AP450-CR.pdr

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

App. 1993)). 

¶108 This case also involves statutory interpretation and 

application. These are questions of law that we independently 

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

808 N.W.2d 390. 

¶109 And finally, whether Deputy Sheriff Abler read the 

Informing the Accused form to Blackman in good faith such that 

the exclusionary rule is inapplicable to the results of 

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

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

B. Coercive or Voluntary

¶110 The majority opinion concludes that Blackman's consent 

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

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

Informing the Accused form to Blackman. The form relates that 

refusal will result in revocation, when Blackman's driving 

privileges would not have been revoked if he had refused to 

provide an evidentiary sample.2 In so concluding, the majority 

opinion totally ignores the legal principles that come into play 

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

overcome by law enforcement conduct for purposes of the Fourth 

Amendment. 

1. General principles

 

2 "He was incorrectly informed that his operating privilege 

would be revoked if he refused the request for a blood draw." 

Majority op., ¶61. 
No. 2015AP450-CR.pdr

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

we must determine whether consent was voluntarily given. 

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

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

of actual coercive, improper police practices designed to 

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

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

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

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

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

context that Blackman contends occurred herein. Rather, we 

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

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

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

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

consent to search was not voluntary requires us to examine the 

details of the interactions between law enforcement and the 

defendant and the characteristics of the defendant. Id. at 226. 

There is no one factor that will determine whether consent was 

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

problem of reconciling the recognized legitimacy of consent 

searches with the requirement that they be free from any aspect 

of official coercion cannot be resolved by any infallible 

touchstone." Id. at 229. 

¶113 In regard to the interaction between law enforcement 

and the defendant, we examine whether law enforcement 

"threatened, physically intimidated, or punished the defendant," 
No. 2015AP450-CR.pdr

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

law enforcement and the defendant were under cooperative, 

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

the result of custodial interrogation, which the Supreme Court 

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

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

¶114 Some factors relating to the defendant are: his 

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

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

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

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

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

311 (Ct. App. 1987). 

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

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

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

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

Stated otherwise, the State has no obligation to prove that the 

defendant consented to the search knowingly and intelligently, 

or that the defendant knew he could refuse to permit the 

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

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

¶116 Furthermore, the obligation to prove that a 

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

is vastly different from the test for assessing the 

constitutional sufficiency of consent to search. Illinois v. 

Rodriguez, 497 U.S. 177, 183 (1990). As the United States 
No. 2015AP450-CR.pdr

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

many factual determinations that must regularly be made by 

agents of the government——whether the magistrate issuing a 

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

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

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

reasonable." Id. at 185.

2. Blackman's consent

¶117 There is nothing in the record that shows Abler 

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

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

rest periods. No coercive, improper police conduct designed to 

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

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

form to Blackman. 

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

accident occurred. There is nothing in the record that would 

indicate he did not have the capacity to freely consent, or 

withdraw consent, for the blood draw. He willingly went to the 

hospital and permitted blood to be drawn for testing. Deputy 

Abler said that "he was very cooperative throughout the whole 

procedure."

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

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

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

that the form should not have been read because Blackman's 

driving privileges could not have been revoked if he refused to 
No. 2015AP450-CR.pdr

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permit the blood test, law enforcement had no obligation to 

provide additional information to Blackman. Constitutionally 

sufficient consent may be obtained when the consent is not 

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

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

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

say yes or he could say no. 

¶120 Furthermore, if reading the Informing the Accused form 

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

Informing the Accused form coerces every driver to whom it is 

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

that accurate consequences of refusing to permit a blood draw 

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

voluntary is contrary to Schneckloth, Rogers and Xiong. 

Knowledge of the consequences of refusal is outside the scope of 

Fourth Amendment consent to search protections. 

¶121 A common example shows the fallacy of the majority 

opinion's conclusion that Blackman's consent was coerced. Let's 

assume that a driver belongs to a religious sect that prohibits 

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

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

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

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

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

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

not provide an accurate description of the consequences of 
No. 2015AP450-CR.pdr

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refusing to provide the requested blood sample for such a 

driver. 

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

Coercion requires unlawful police conduct designed to override 

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

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

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

voluntarily consent to the blood test. 

C. Statutory Interpretation

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

subsections show that the deputy correctly followed directives 

established by the legislature, which included reading the 

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

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

1. General principles

¶124 Statutory interpretation begins with the language of 

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

legislature are plain, ordinarily we stop the inquiry. State ex 

rel Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 

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

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

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

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

¶125 Interpreting a statute in context requires that we do 

not interpret statutory language in isolation, but rather in 

relation to surrounding and closely-related statutory 

provisions. Id. Here, I interpret the subsections of Wis. 
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Stat. § 343.305 as they relate to each other within Wisconsin's 

statutory scheme of implied consent.3 

2. Relevant Statutes 

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

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

majority opinion finds persuasive.4 Accordingly, I interpret 

those provisions in the context of Wisconsin's implied consent 

law, as they relate to each other.

¶127 A vehicle operator whom a law enforcement officer has 

reason to believe committed a violation of a traffic law that 

caused great bodily harm to another may be charged with a 

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

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

request the vehicle operator to provide one or more samples of 

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

that that interpretation is what the statute plainly provides. 

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

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

At the time that a chemical test specimen is requested 

under sub. (3)(a), (am), or (ar), the law enforcement 

officer shall read the following to the person from 

whom the test specimen is requested:

 

3 I note that the "purpose behind the implied consent law is 

to combat drunk driving 'by facilit[ating] the gathering of 

evidence against drunk drivers.'" State v. Piddington, 2001 

WI 24, ¶17, 241 Wis. 2d 754, 623 N.W.2d 528 (quoting State v. 

Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828 (1980)). 

4 Majority op., ¶¶30, 44.
No. 2015AP450-CR.pdr

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You . . . are the operator of a vehicle that was 

involved in an accident that caused the death of, 

great bodily harm to, or substantial bodily harm to a 

person . . . .

This law enforcement agency now wants to test one 

or more samples of your breath, blood or urine . . . . 

If you refuse to take any test that this agency 

requests, your operating privilege will be revoked and 

you will be subject to other penalties.

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

chemical testing are secured, repeats the statutory admonitions 

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

officer to read the statutory provisions. There is no dispute 

that the statutory provisions are contained within the Informing 

the Accused form. 

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

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

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

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

occurred in the pending matter. However, given the arguments 

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

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

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

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

from whom submission of a sample for testing was requested under 

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

If a law enforcement officer informs the circuit or 

municipal court that a person has refused to submit to 

a test under sub (3)(a), (am), or (ar), the court 

shall be prepared to hold any requested hearing to 

determine if the refusal was proper. The scope of the 

hearing shall be limited to the issues outlined in 

par. (a)5. or (am)5. Section 967.055 applies to any 

hearing under this subsection. 
No. 2015AP450-CR.pdr

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

vehicle operator refuses a request to submit a sample for 

testing based on a suspected violation of Wis. Stat. 

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

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

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

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

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

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

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

because of a cause unrelated to the use of a prohibited 

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

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

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

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

shall be tried. 

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

review are "limited," no unlisted issues can be considered, but 

every enumerated issue identified in the list does not have to 

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

limited to:

(1) whether the board kept within its jurisdiction; 

(2) whether it proceeded on a correct theory of law; 

(3) whether its action was arbitrary, oppressive, or 

unreasonable and represented its will and not its 

judgment; and (4) whether the board might reasonably 

make the order or determination in question based on 

the evidence. 

FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶8, 301 Wis. 2d 321, 

733 N.W.2d 287. However, there is no need to try all four 
No. 2015AP450-CR.pdr

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

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

¶134 Furthermore, even though Wis. Stat. 

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

had probable cause to believe the person was operating a motor 

vehicle with a prohibited alcohol concentration, nothing in 

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

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

demonstrates that requiring the State to litigate whether the 

officer had probable cause to believe the driver was impaired or 

had a prohibited alcohol concentration would make no sense 

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

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

apparent intoxication. 

3. Application of statutes to Blackman

¶135 Deputy Abler had reason to believe that Adam Blackman 

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

oncoming traffic, which caused great bodily harm to another. 

Accordingly, Blackman was alleged to have violated Wis. Stat. 

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

suffered great bodily harm and no question that it was pursuant 

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

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

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

Informing the Accused form. 

¶136 Even though statutory interpretation arising from a 

refusal is not present in this case, if it were, I would 
No. 2015AP450-CR.pdr

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

the issue of whether the deputy had probable cause to believe 

Blackman was impaired must be tried because Blackman was 

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

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

refused, such refusal would be excused because of an inability 

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

refused, his driving privileges would have been revoked. 

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

vehicle's operator was under the influence of intoxicating 

substances when accidents cause death or great bodily harm. It 

did so because intoxication is not always readily apparent at 

the scene of a serious accident, but can nevertheless have 

contributed to loss of life and serious injuries. That policy 

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

¶138 Blackman's blood test showed a prohibited alcohol 

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

adult, and absolutely prohibited for a man who was underage to 

drink any alcohol on the date of the accident. 

D. Good Faith

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

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

interpretation, I nevertheless would conclude that the good 

faith exception to the exclusionary rule applies; and therefore,

I would not suppress the results of the blood test. 

¶140 At the outset, I note that the majority opinion 

incorrectly frames the exclusionary rule as a remedy courts 
No. 2015AP450-CR.pdr

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apply liberally. Without citation, the majority opinion states: 

"Ordinarily, evidence obtained through an unlawful search is 

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

when innocent police conduct is the foundation from which 

objection to a search arises.

¶141 The Supreme Court has concluded that "the 

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

enforcement objectives presents a high obstacle for those urging 

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

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

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

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

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

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

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

We have used similar admonitions when describing the 

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

"exclusion [of evidence] is the last resort"). 

¶142 "The rule's sole purpose . . . is to deter future 

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

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

'appreciable deterrence,' exclusion is 

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

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

the harsh sanction of exclusion only when they are deliberate 

 

5 Majority op., ¶68. 
No. 2015AP450-CR.pdr

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

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

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

¶143 Moreover, "marginal deterrence is not enough to 

justify exclusion; 'the benefits of deterrence must outweigh the 

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

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

course, letting guilty and possibly dangerous defendants go 

free—something that 'offends basic concepts of the criminal 

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

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

to society of excluding probative evidence against a defendant 

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

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

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

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

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

exclusionary rule does not serve its purpose when police act 

with a reasonable, good faith belief that their conduct is 

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

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

frequently questioned whether the exclusionary rule can have any 

deterrent effect when the offending officers acted in the 

objectively reasonable belief that their conduct did not violate 

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

the objectively ascertainable question whether a reasonably 

well-trained officer would have known that the search was 
No. 2015AP450-CR.pdr

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

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

¶145 The good faith exception applies when an officer 

relies on a statute that is later found unconstitutional.6 

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

statute is clearly unconstitutional, an officer cannot be 

expected to question the judgment of the legislature that passed 

the law. If the statute is subsequently declared 

unconstitutional, excluding evidence obtained pursuant to it 

prior to such a judicial declaration will not deter future 

Fourth Amendment violations by an officer who has simply 

fulfilled his responsibility to enforce the statute as written." 

Id. 

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

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

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

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

enforcement officer shall read the following to the person from 

whom the test specimen is requested." Excluding the results of 

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

 

6 The good faith exception is not cabined to the factual 

circumstances in which it has previously been applied by the 

United States Supreme Court. See People v. LeFlore, 32 N.E.3d 

1043, 1050 (Ill. 2015) ("Clearly, application of the good-faith 

inquiry is not limited to the specific circumstances addressed 

by the Supreme Court in Davis [v. United States, 564 U.S. 229 

(2011)] or any other Supreme Court case."); United States v. 

Stephens, 764 F.3d 327, 337 (4th Cir. 2014) (declining to limit 

"the good-faith inquiry only to the precise factual 

circumstances addressed by the Supreme Court"). 
No. 2015AP450-CR.pdr

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

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

U.S. at 349-50. 

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

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

in which suppression would yield "appreciable deterrence." 

Weighed against the high societal cost of exclusion, suppression 

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

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

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

less. 

¶148 The majority opinion concludes that suppression is 

necessary to deter officers from continuing to read individuals 

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

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

After the majority opinion in the present case concludes that it 

is impermissible for an officer to rely solely on reading the 

Informing the Accused form to obtain consent when a defendant is 

alleged to have violated Wis. Stat. § 343.305(3)(ar)2., an 

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

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

application of a good-faith exception to searches conducted 

pursuant to warrants will preclude review of the 

constitutionality of the search or seizure, deny needed guidance 

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

state."). 

 

7 Majority op., ¶73. 
No. 2015AP450-CR.pdr

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¶149 Additionally, the United States Supreme Court has 

"'never applied' the exclusionary rule to suppress evidence 

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

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

"misconduct" was the incorrect information provided to Blackman. 

Ironically, the author of the majority opinion has previously 

permitted officers to misinform an individual of the 

consequences of refusal specific to that individual. See

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

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

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

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

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

that the misinformation provided to the defendant was irrelevant 

so long as the officer correctly read the Informing the Accused 

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

Accused form correctly even if the penalties in the implied 

consent laws were not accurate with respect to the defendant. 

¶150 In sum, the deputy acted in good faith and his actions 

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

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

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

interpretation, the good faith exception to the exclusionary 

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

admissible.
No. 2015AP450-CR.pdr

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III. CONCLUSION

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

Informing the Accused form to Adam Blackman was not sufficient 

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

his consent to evidentiary tests was coerced rather than 

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

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

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

believed the statutes required. Accordingly, I would affirm the 

court of appeals, and I respectfully dissent from the majority

opinion. 
No. 2015AP450-CR.pdr

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