July 25, 2017 – A man convicted of operating while intoxicated (OWI), third offense, argued that a blood test should have been suppressed because he did not freely give consent. Recently, the Wisconsin Supreme Court (5-2) upheld the conviction, but with differing views on application of the state's implied consent law.

In State v. Brar, 2017 WI 73 (July 6), five justices agreed that Navdeep Brar consented to a blood test and his consent was voluntary. But a majority did not agree on the form of consent that Brar provided.

Three justices concluded that Brar first consented through conduct under Wisconsin’s implied consent law – which says that drivers who drive on Wisconsin roads are “deemed to have given consent to one or more tests of his or her breath, blood, or urine” – then reaffirmed his consent through words to the arresting officer.

Two justices agreed that Brar expressly consented but did not join the conclusion that his “implied consent” was sufficient for Fourth Amendment purposes. Two other justices dissented, concluding that Brar did not freely and voluntarily consent to a blood draw.

Did Brar Consent?

Police stopped Brar for speeding in the City of Middleton. Brar subsequently failed a field sobriety test and blew a 0.19 on a preliminary breath test, well over the legal limit of 0.08. The officer arrested Brar and transported him to the police station.

At the station, the officer asked Brar if he would submit to a chemical evidentiary test. The conversation that ensued between the officer and Brar is disputed, but the officer testified that he thought Brar had consented. The officer testified that Brar said “of course” when the officer asked if he would submit to a chemical test of his blood.

The circuit court also accepted an audiovisual recording that seemed to corroborate that Brar said “of course” to the officer, even though Brar argued that the individual who transcribed the recording did not hear Brar say the words “of course.”

Still, Brar continued to ask the officer questions after muttering the words "of course.” He asked what kind of test would be performed. When the officer said a blood test would be performed, Brar asked if the officer needed a warrant for the blood test.

The officer shook his head no, believing a warrant was not required because Brar had just given his consent to the blood test. Brar did not refuse the test at the hospital.

The blood draw revealed that Brar was well over the legal limit, and after his motion to suppress was denied, he pled no contest to his third offense OWI. A state appeals court affirmed the motion to suppress ruling and he appealed to the supreme court.

Implied Consent

Chief Justice Patience Roggensack wrote a lead opinion. She concluded that a warrant is not required for a blood draw because of the state’s implied consent law. Justices Michael Gableman and Annette Ziegler joined.

Wisconsin drivers impliedly consent to chemical testing if they are suspected of impaired driving. Refusing the test (and withdrawing consent) can result in automatic license revocation and the refusal can be used against the driver in court.

The chief justice concluded that implied consent is sufficient consent for Fourth Amendment purposes. That is, police do not need a warrant to obtain a blood draw because drivers impliedly consent to it when they drive on Wisconsin roads.

Prior cases have distinguished “implied consent” from the consent required for Fourth Amendment purposes. But the chief justice did not see a distinction.

“[C]onsent by conduct or implication is constitutionally sufficient consent under the Fourth Amendment,” Chief Justice Roggensack wrote.

“Implied consent is not a second-tier form of consent; it is well-established that consent under the Fourth Amendment can be implied through an individual’s conduct.”

Consent was Voluntary

The lead opinion noted that implied consent to a warrantless search, such as a blood draw, is no good unless the consent is voluntary.

“Even in implied consent cases, we consider the totality of the circumstances at the time of the blood draw to determine if an individual’s previously given consent continues to be voluntary at the time,” Roggensack wrote.

While the state has the burden to prove consent was voluntary, the chief justice noted, “the State need not demonstrate that consent was given knowingly or intelligently.”

Roggensack cited several appeals court cases that required the state to prove consent was given knowingly and intelligently, contrary to U.S. Supreme Court precedent.

“As we interpret our constitution consistent with the Fourth Amendment, we withdraw any language from these cases that requires that consent to a search be given knowingly or intelligently,” Chief Justice Roggensack explained.

The lead opinion concluded that Brar consented to the blood draw under Wisconsin’s implied consent law because he chose to drive in Wisconsin, and he reaffirmed his consent with responses to the officer indicating he was open to the blood draw.

Roggensack noted that Brar could have withdrawn his implied consent after the officer informed him of chemical testing information required by statute.

Finally, the lead opinion concluded that Brar’s implied and express consents were voluntary. Brar had argued that his consent was not voluntary because he asked if a warrant was required, and the officer said no even though a warrant is required without consent. However, the officer had explained the consequences of refusing the test.

“[T]he officer’s response did not vitiate the voluntariness of Brar’s consent,” Chief Justice Roggensack explained. “After all, the officer did not need a warrant because Brar had already consented. [A]n individual need not be informed of the opportunity to withdraw consent … in order for consent to be voluntary.”

Justice Kelly’s Concurrence

Justice Danial Kelly, joined by Justice Rebecca Bradley in part, agreed that Brar gave consent, but did not agree with Chief Justice Roggensack’s implied consent analysis.

“I cannot join any part of the court’s discussion of implied consent because it misunderstands how our implied consent law functions,” Justice Kelly wrote.

“[The lead opinion] says ‘consent’ implied by law is something voluntarily given when such thing is impossible [and] it introduces a destructive new doctrine that reduces constitutional guarantees to a matter of legislative grace.”

Kelly said the lead opinion’s discussion of implied consent failed to properly distinguish between express consent, consent implied by conduct, and consent implied by law.

He said the lead opinion did not need to venture into an analysis of consent implied by law, because – as the lead opinion concluded – Brar gave express consent and his express consent was voluntary. No other analysis was necessary.

Like the lead opinion, Justice Kelly noted that Brar gave his express consent to a blood test before the officer told him a warrant was not required to conduct the test. That is, Brar had already consented, so the officer was correct that no warrant was required.

“Mr. Brar did not argue his consent was involuntary for any other reason, so we properly concluded his consent was constitutionally valid. That should have been the end of our opinion,” Justice Kelly wrote.

In other parts of his 26-page concurrence that Justice R. Bradley did not join, Justice Kelly challenged the lead opinion’s conclusion that a driver automatically consents to a blood draw, a Fourth Amendment search, under the state’s implied consent law.

“I understand the importance of intoxicated drivers. But we are deforming our Constitution,” Justice Kelly wrote. “By conferring on the legislature the authority to create consent where none exists, we are reducing constitutional rights to matters of legislative grace.”

Justice Abrahamson’s Dissent

Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley, concluding that Brar did not give consent and if he did, “the consent was not the result of ‘an essentially free and unconstrained choice’ … but merely his acquiescence to an unlawful assertion of police authority.”

Justice Abrahamson noted that the officer advised Brar that a blood draw could be taken without a warrant, and that was incorrect. Thus, the results of the blood draw should have been suppressed, the dissenters concluded.

“In order for a law enforcement officer to draw blood from a driver without a warrant, a valid exception to the Fourth Amendment must apply at the time of the blood draw, such as the driver’s free and voluntary consent or the existence of exigent circumstances,” Justice Abrahamson wrote.

Like Justice Kelly, the dissenters rejected the lead opinion’s conclusion that Wisconsin’s implied consent law is sufficient consent for a blood draw.

“I conclude that in the context of the Wisconsin Implied Consent Law, the conduct that equates to consent valid under the United States and Wisconsin constitutions is the driver’s agreeing to submit to the test after being read the Informing the Accused Form.

“Were it otherwise, there would be no need to read the Form or request a test,” Abrahamson wrote.

The dissent concluded that it was not clear that Brar muttered “of course” in response to a question about whether he would submit to an evidentiary chemical test. The other justices largely relied on this evidence to conclude he gave express consent.

Abrahamson independently reviewed the audiovisual recording and concluded that it undermined a finding of express consent, and in any event, it was not voluntary.

The officer obtained consent by giving Brar misinformation – that a warrant was not required, Abrahamson explained. Prior cases imply consent must be given knowingly and voluntarily, and police trickery or deception weighs against a finding of consent.

“The officer erroneously advised the defendant that blood could be drawn without a warrant,” wrote Justice Abrahamson, concluding the blood test should be suppressed.