COA finds consent to blood test was voluntary under since-repealed provision of Implied Consent Statute
State v. Richard A. Tourtillot, 2024AP1831, 7/7/26, District III (not recommended for publication); case activity
The COA determined the defendant’s consent to a blood draw was voluntary under a since-repealed portion of the Implied Consent Law.
A Shawano County Sheriff’s deputy saw an SUV traveling between 90 and 95 miles per hour on a road with a posted speed limit of 40 miles per hour. The deputy lost sight of the SUV, but a short time later encountered a “high speed traffic crash” involving the SUV and another vehicle. (¶ 6). The deputy investigated and a person seated in the passenger seat of the SUV told the deputy that the driver, later determined to be Richard Tourtillot, fled the scene. The driver of the other vehicle was unconscious and “significantly injured.” (¶ 7).
The deputy discovered Tourtillot unconscious in a ditch 50 feet from the crash. As he approached Tourtillot, the deputy smelled alcohol from his person. Tourtillot regained consciousness and was transported to a hospital. (¶ 8). A second deputy also smelled alcohol on Tourtillot and accompanied him to the hospital to begin “the OWI process.” (¶ 9). At the hospital, the second deputy read Tourtillot the Informing the Accused form, which described Tourtillot’s rights and responsibilities under the Implied Consent Law. Tourtillot consented to a blood sample, which showed that he had methamphetamine, amphetamine, and THC in his system. (¶ 4).
Tourtillot was charged with 13 counts, including two counts of causing great bodily harm by operating a vehicle with a restricted controlled substance in his blood. He filed a motion to suppress the results of the blood draw, which the circuit court denied because it determined Tourtillot’s consent was knowing and voluntary. (¶ 12).
On appeal, Tourtillot argued that Wis. Stat. § 343.305(3)(ar)2. was facially unconstitutional because it allowed law enforcement to request a blood test without probable cause the person was under the influence of an intoxicant or controlled substance. However, § 343.305(3)(ar)1. also authorized police to request a blood test from the operator of a vehicle involved in an accident that causes substantial bodily harm and the officer detected any presence of alcohol or a controlled substance. Section 343.305(3)(ar) was repealed since Tourtillot’s arrest.
The COA determined the deputy requested Tourtillot’s blood test pursuant to § 343.305(3)(ar)1. and therefore did not address the constitutionality of § 343.305(3)(ar(2). (¶ 20).
Tourtillot also argued his consent was involuntary, relying on SCOW’s decision in Blackman that the Informing the Accused form is inconsistent with § 343.305(3)(ar)2. because the form stated that refusing to take a test would result in revocation of the person’s driving privileges, while the statute only provided that refusing a test would result in the person’s arrest. (Blackman, ¶ 38). SCOW held that the defendant’s consent to a blood draw was therefore invalid because it was not knowing and voluntary. (Blackman, ¶ 6).
The COA applied Blackman’s reasoning to a request for a blood draw under § 343.305(3)(ar)1., but noted the Informing the Accused form was accurate if police had probable cause to believe Tourtillot operated a vehicle under the influence. (¶ 22). The COA explained that the form stated the person’s operating privilege would be revoked if the person refused a test and the State would be required at a refusal hearing to prove the officer had probable cause that the driver operated a vehicle under the influence. (¶ 22).
The COA determined the deputy had probable cause that Tourtillot drove under the influence given his high rate of speed, erratic driving that caused an accident (he veered into the wrong side of the road), time of night (10 p.m.) on a Saturday, and the smell of alcohol coming from him. (¶¶ 26-40). The COA therefore concluded Tourtillot’s consent to the blood draw was voluntary given that the Informing the Accused form accurately stated that his operating privilege would be revoked if he refused a blood test because the State could prove at refusal hearing that he operated a vehicle under the influence. (¶ 44).