COA rejects facial challenge to Implied Consent Law; affirms denial of motion to suppress blood results
State v. Conor Alexander Noble, 2025AP811-CR, 3/11/26, District II (1 judge opinion, ineligible for publication); case activity
COA rejects Noble’s facial unconstitutionality challenge to Wisconsin’s Implied Consent Law (ICL) and affirms the circuit court’s denial of Noble’s motion to suppress the blood draw results for lack of voluntary consent.
Noble was arrested and charged with OWI, first offense. He moved to suppress the results of his blood test on the ground that the evidence was unconstitutionally seized pursuant to the ICL, and the circuit court held an evidentiary hearing. (¶2). Noble was in his pickup truck in a wayside parking lot at 11:15 p.m. when an officer made contact with him and a passenger. (¶3). The officer “detected the odor of alcohol coming from the vehicle and observed open intoxicants inside the vehicle.” Noble admitted he drank three beers that night. (¶4).
Noble performed standardized field sobriety tests and took a PBT that showed a BAC of 0.12. (¶5). The officer arrested Noble and read him the Informing The Accused (ITA) form. The officer testified that Noble asked for clarification, and the officer explained it was “a blood draw, two vials of blood.” He also testified that Noble then responded, “Yes,” when asked again if he would consent. (¶5). Noble testified that he was intimidated by the officer and had replied, “I guess” to the second request for his consent. (¶7). The video was played and the circuit court stated that it “couldn’t make out whether it was a ‘Yes’ or ‘I guess.'” (¶8). The court denied Noble’s suppression motion, concluding that either response indicated an affirmative response. (¶9).
Noble contends that the circuit court erred in denying his motion to suppress the results of the warrantless blood draw taken after the officer read the ITA form to him because consent given pursuant to the ICL is unconstitutional. COA analyzes State v. Prado, 2021 WI 64, ¶22, 397 Wis. 2d 719, 960 N.W.2d 869, State v. Brar, 2017 WI 73, ¶16 n.7, 376 Wis. 2d 685, 898 N.W.2d 499, and Mitchell v. Wisconsin, 588 U.S. 840 (2019), and concludes that Wisconsin’s ICL is constitutional. COA reiterates that the ICL “does not authorize a warrantless search of a driver’s blood by implying, as a matter of law, that every driver has to consent to such a search[;]” but rather it “[e]ssentially … gives those who are capable of responding a choice: submit to the test and risk that the results are presented in [circuit] court, or refuse the test and face license revocation and other civil penalties.” (¶¶14-15).
Prado, in which the supreme court determined that the incapacitated driver provision of the ICL was unconstitutional because it presumed that an incapacitated or unconscious driver provided consent, does not apply because Noble was conscious. (¶¶17-18). “The Wisconsin Supreme Court reached the same conclusion in Brar, holding that the defendant’s consent provided after the officer read the ITA form satisfies the Fourth Amendment’s consent exception.” (¶19). COA also rejects Noble’s argument that Mitchell implicitly overruled Brar, as the Mitchell court declined to address even the constitutionality of the unconscious driver’s ability to consent, holding that exigent circumstances could provide an exception to the warrant requirement. (¶20).
Next, COA rejects Noble’s argument that his consent to the blood draw was involuntary because he said, “I guess.” (¶22). Noble’s response is similar to the defendant’s response of, “[O]f course,” in Brar. The court soundly rejected the argument that Brar’s response made his consent involuntary, holding that the 4th Amendment’s consent exception “is satisfied when a defendant answers in the affirmative after the officer has read aloud the ITA form.” (¶22). COA also rejects Noble’s argument that the environment was coercive. The court examines the six Phillips factors and concludes that “Noble’s will was not overborne by the officer.” (¶¶24-31).