COURT OF APPEALS

DECISION

DATED AND FILED

April 25, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1923-CR Cir. Ct. No. 2020CF713

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DONALD P. HOUSE,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Wood County: 

GREGORY J. POTTER, Judge. Affirmed. 

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2022AP1923-CR

2

¶1 PER CURIAM. Donald House appeals a judgment of conviction

for operating with a prohibited blood alcohol concentration as a fifth or sixth 

offense. The issues are whether the circuit court, in denying his suppression 

motion, correctly determined that House was not in custody for Fifth Amendment 

purposes before he was arrested, and that House voluntarily consented to a 

warrantless blood draw. We affirm.

¶2 House pled no contest to one count of operating with a prohibited 

blood alcohol concentration as a fifth or sixth offense. Before doing so, he moved 

to suppress statements that he made before arrest and to suppress the blood test 

result. The circuit court denied the motions. The issues are preserved for appeal, 

despite House’s plea, by operation of WIS. STAT. § 971.31(10) (2021-22).1

¶3 House argues that statements he made before his arrest should be 

suppressed because they were made in response to a custodial interrogation that 

occurred without him being advised of his rights under Miranda v. Arizona, 384 

U.S. 436 (1966). 

¶4 The relevant facts found by the circuit court are not in dispute. 

Briefly stated, an officer saw House driving a car in a public parking lot after 

hours, moving towards the exit. The officer asked House to stop, and they had a 

conversation. The officer observed beer cans in the car and asked a series of 

questions related to whether House had been drinking. As part of that 

conversation, House acknowledged that he had been drinking (specifically, that he 

had consumed three beers at a bar), that he had just been released from prison for 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP1923-CR

3

drinking and driving, and that he was on “probation or parole.” This was followed 

by field sobriety testing and a preliminary breath test, which led to House’s arrest. 

¶5 Once the historical facts are found, the determination of when 

custody began is an issue of law that we review independently of the circuit court. 

State v. Bartelt, 2018 WI 16, ¶25, 379 Wis. 2d 588, 906 N.W.2d 684. We apply a 

two-part objective test in which we first ask whether the person’s freedom of 

movement was curtailed such that a reasonable person would not feel free to leave, 

and then ask whether, under the totality of the circumstances, the environment 

presented the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda. Bartelt, 379 Wis. 2d 588, ¶¶31-33.

¶6 House argues that, for Miranda purposes, he was in custody before 

his arrest. He does not argue that he was immediately in custody upon stopping 

the car at the officer’s request. Such an argument, if successful, would turn every 

traffic stop into a custodial interrogation from the first word, which is clearly not 

the state of the law. Instead, House argues that custody began at some point 

during his conversation with the officer. More specifically, he argues that it began 

when the officer made a statement indicating a belief that House had been 

drinking and driving, or that it began later, when the officer directed House to 

place the car in park and not drive. House argues that these were moments that 

would lead a reasonable person to believe the person was not free to leave.

¶7 The State appears to concede that a reasonable person would not feel 

free to leave at these moments. However, this factor does not turn every traffic 

stop into a custodial interrogation. Instead, the State focuses on the second part of 

the test, whether the environment presented the same coercive pressures as station 
No. 2022AP1923-CR

4

house questioning. The State argues that such pressures were not present here. 

We agree.

¶8 Case law states that a traffic stop typically does not rise to the level 

of being in custody for Miranda purposes unless, under the totality of the 

circumstances, the person’s freedom of action is curtailed to a degree associated 

with a formal arrest. State v. Dobbs, 2020 WI 64, ¶59, 392 Wis. 2d 505, 945 

N.W.2d 609. House argues that such curtailment of freedom occurred here 

because two officers were present, police were asking about his consumption of 

alcohol, and he was told to stop driving. However, we do not agree that these 

circumstances are comparable to a formal arrest. These are ordinary 

circumstances of a traffic stop. Both when House was asked about his 

consumption of alcohol and also when he was told to stop driving, House was not 

removed from his vehicle, was not handcuffed or patted down, and he continued to 

remain in a location that was public. House was not in custody when he made 

statements to the police before his arrest.

¶9 Turning to the voluntary consent argument, House contends that the 

circuit court erred by concluding that he voluntarily consented to a warrantless 

blood draw. After the officer arrested House, the officer read him the informing 

the accused form and House ultimately agreed to submit to a blood draw. The 

officer took House to a hospital for the blood draw to be conducted. 

¶10 House argues that his consent was not freely and voluntarily given 

because the officer told him that a blood sample “was required” and the 

phlebotomist told him that he did not get “the chance to refuse anything.” House 

argues that these statements misinformed him as to whether he was permitted to 

refuse a warrantless blood draw, and that case law establishes that consent based 
No. 2022AP1923-CR

5

on misinformation is not valid. See State v. Blackman, 2017 WI 77, ¶¶57-59, 377 

Wis. 2d 339, 898 N.W.2d 774.

¶11 These statements by the officer and phlebotomist, if standing alone, 

might reasonably be interpreted in the manner that House argues. However, there 

was other context to the exchanges that clarified the situation such that House was 

not misinformed.

¶12 The context for the officer’s statement is as follows. After the 

officer arrested House, the officer read him the informing the accused form,

including the question asking whether House would submit to a blood draw. 

House asked why that was needed, since the officer already had the results of the 

“breathalyzer” test. The officer reread the question on the form, and House again 

asked why. The officer answered, “Because that’s what’s required,” and House 

responded, “Fine, whatever.” The officer asked, “Yes? No?” House answered, 

“Yes.” 

¶13 The context for the phlebotomist’s statement is as follows. At the 

hospital, as the blood draw was being readied, House began to insist on giving 

only one vial of blood. When the phlebotomist said he was going to use two vials, 

House said that “I’ll refuse completely.” The phlebotomist said, “You don’t get 

the chance to refuse anything.” The officer said, “Okay, so if you refuse 

completely, I will get a search warrant.” After some continued discussion about 

the search warrant, House repeated, “[O]ne tube. One tube only.” The officer 

asked, “Are you refusing?” House said, “You’re only going to take one tube out 

of my arm.” The officer again asked, “Okay, so are you refusing the blood test 

now?” House first answered by saying, “You don’t need two tubes,” and then, 

after some more back and forth along the same lines, said, “You’re going to take 
No. 2022AP1923-CR

6

two tubes.” The officer said, “So are you going to take the blood test or not now?” 

and House indicated his consent by rolling up his sleeve. 

¶14 In both instances, the officer’s continued questions asking if House 

was agreeing or refusing to submit to a blood draw after the statements relied on 

by House strongly imply that House had a choice to refuse the blood draw, at least 

as of those moments. In addition, as noted, after the phlebotomist’s statement, the 

officer also told House that if he refused the blood draw, the officer would obtain a 

search warrant. That statement implies that any refusal would be honored, as of 

that moment, and would lead to a different course of action by the officer to obtain 

the sample. These parts of both exchanges sufficed to clarify to House that he was 

permitted to refuse a warrantless blood draw. 

¶15 House also argues that his consent was coerced because the officer 

did not accept House’s repeated refusals, and instead continued to ask if House 

would allow the blood draw. House does not argue that the officer’s demeanor 

was in any way coercive, but only that his repeatedly asking House whether he 

agreed or refused to submit to a blood draw was coercive. Although neither party 

has provided case law exploring the issue, we assume without deciding that, 

depending on all relevant circumstances, if an officer were to repeatedly ask a 

person for a blood draw, despite the person’s unambiguous refusals, a sufficient 

number and type of requests could become, or contribute to, coercive conduct in a 

legal sense. However, under the circumstances here, we conclude that the 

exchanges during which the officer made multiple requests were not coercive. 

¶16 In the first exchange described above, the officer’s repeating the 

question on the informing the accused form when House questioned the need for a 

blood draw made it clear that House could refuse. In the second exchange 
No. 2022AP1923-CR

7

described above, House’s demand for only one vial was peculiar and ambiguous, 

and unlike the easily anticipated form of refusal—with which many police officers 

would be familiar through experience or training—in which the person entirely 

rejects a needle insertion and blood draw. Faced with House’s demand, it was 

important, and in House’s interest as well, for the officer to proceed as he did: 

(1) clarify to House that failure to allow two vials would be considered a complete 

refusal, (2) try to confirm that House understood this point; and (3) pose the 

question again about whether House would allow two vials. Here, we could not 

fault the officer as acting prematurely if, at some point during the exchange, the 

officer had told House that the officer was accepting the refusal and would obtain 

a search warrant instead. Instead, the officer pursued clarity by engaging in what 

the video shows was a reasonable back-and-forth exchange, and not an 

overbearing or misleading series of requests by the officer. As to both exchanges, 

immediately after House was arrested and then at the hospital, the few extra 

seconds in which the officer continued to respond to House’s statements and 

provide information, and to wait for House to process the information and reach a 

decision, was not so long a time as to become coercive.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.