COA again holds that Wisconsin’s implied consent law is constitutional, recommends opinion for publication
County of Trempealeau v. Layne Perry Stenberg, 2024AP281, 4/21/26, District III (recommended for publication); case activity
Stenberg argues that Wis. Stat. § 343.305(2), Wisconsin’s implied consent law, is unconstitutional, both facially and as applied to him. Specifically, he argues that the implied consent law violates the unconstitutional conditions doctrine by requiring him to “forfeit” his Fourth Amendment right to be free from unreasonable searches for the privilege of operating a motor vehicle on a public highway, and that it violates the least intrusive means test under the Fourth Amendment. COA rejects Stenberg’s arguments.
First, COA rejects Stenberg’s argument that the implied consent law is unconstitutional because it requires him to exchange his constitutional right to be free from unreasonable searches for the privilege of operating a motor vehicle in Wisconsin. It does so on the basis that the law imposes on civil penalties, not criminal, for a refusal, citing Birchfield v. North Dakota, 579 U.S. 438, 476-77 (2016) and State v. Forrett, 2022 WI 37, ¶8 n.5, 401 Wis. 2d 678, 974 N.W.2d 422. (¶¶18-21). Stenberg’s attempts to distinguish his arguments from Birchfield are unsuccessful. (¶¶22-23).
COA also reasons that Stenberg’s arguments “mischaracteriz[e] … the implied consent law and the applicable facts.” First, Stenberg’s argument is based on the statute requiring a conscious driver to give his or her blood without consent, but it does not. (¶24). Second, Stenberg seems to argue that being required to submit to the implied consent law when an individual applies for a license is unconstitutional. However, COA concludes that, “[a]t no time—either when a person seeks or obtains a driver’s license from the Department of Motor Vehicles or when a suspected drunk driver is asked to give consent for a blood draw pursuant to the implied consent law—is a person required to ‘forgo’ a constitutional right or be unreasonably punished for invoking his or her constitutional right against unreasonable searches.” (¶25).
Alternatively, Stenberg argues that the implied consent law violates the “least intrusive means test.” (¶26). COA disagrees, as “Wisconsin’s implied consent law clearly advances the ‘very important’ purposes of incentivizing drivers to cooperate in voluntary chemical testing and removing drunk drivers from the state’s highways,” both of which have been approved by the Wisconsin and U.S. supreme courts. (¶28). He asserts that despite the state’s interest, the state must still use the least intrusive means possible and proposes alternative means by which the state could obtain the evidence, which he believes are less intrusive. (¶29). Broadly, Stenberg asserts that obtaining a blood sample pursuant to a search warrant or requesting that a person consent to a blood draw is overly intrusive–which the court here rejects–, and that he should have been allowed to take a breath test instead of having a blood draw–an argument which our supreme court has already rejected. (¶¶32-34).
Thus, COA concludes that Stenberg failed to prove, beyond a reasonable doubt, that Wisconsin’s implied consent
statute is unconstitutional, facially or as applied to him.