COA holds that consent to blood test was voluntary and rejects challenges to OWI conviction
County of Milwaukee v. Troy Michael Tordoer, 2024AP2492, 7/28/26, District I (ineligible for publication); case activity
Although Tordoer claims that he was coerced into consenting to an evidentiary blood draw, COA agrees with the circuit court that Tordoer’s consent was voluntary.
Tordoer was arrested for a suspected OWI offense. (¶2). Although there is no dispute that he was properly read the Informing the Accused Form (IAF), Tordoer’s appeal focuses on the officer’s additional comments to Tordoer which preceded the reading of the form:
You’re gonna go for some evidentiary testing. We’re either going to go for a sample of your breath or your blood with your consent. If you don’t consent, I’m going to have to get a warrant. That’s probably going to take two, three hours. If you do consent, what’s gonna happen, like I said, we’re going to go up to the hospital, we’re gonna get a blood draw of your blood, and then … somebody will be able to pick you up.
(¶3). Although Tordoer consented to the blood draw, he later filed a motion to suppress alleging that he did not freely and voluntarily consent and that the officer “coerced his consent to the blood test by suggesting that, if he did not consent: (1) he would be detained for a significantly longer period of time; (2) he could not have someone “pick him up,” implying that he may not be released; and (3) Deputy Miller would inevitably be able to obtain a search warrant authorizing the blood test.” (¶4).
The circuit court reviewed the video of the encounter and found that the officer’s “tone with Tordoer was congenial and non-threatening, and that Tordoer was cooperative and understood what he was being told.” (¶6). The court further found that the officer’s comments merely truthfully explained the OWI process and therefore denied the motion to suppress. (Id.).
On appeal, COA applies a totality of the circumstances analysis to determine whether Tordoer’s consent was, in fact, voluntary. (¶11). However, while the ultimate legal question is reviewed independently, the circuit court’s findings of fact about the encounter are entitled to deference. (¶8). Notably, Tordoer does not challenge the circuit court’s findings about the “congenial” and “non-threatening” nature of the encounter. (¶12). Instead, he claims that the officer’s pre-IAF commentary rendered his consent involuntary pursuant to State v. Blackman and Bumper v. North Carolina. (Id.).
COA disagrees. First, as to Bumper, COA distinguishes the facts of that case. (¶14). Here, while the officer discussed getting a warrant, the officer’s statement merely “implies that [the officer] was confident in his ability to obtain a warrant” and was “not a definitive statement that he already has one.” (¶14).
Bumper is not discussed in much detail here, so some additional facts about that case might be helpful for some readers. There, officers arrived to search a residence. They told the homeowner they possessed a warrant to search the home. (Whether, in fact, such a warrant existed is apparently something of an unresolved question). Under these circumstances, the homeowner’s acquiescence to their claim of lawful authority was distinguishable from truly voluntary consent. As COA discusses later in its opinion, however, a threat to obtain a search warrant, so long as the expressed intention is “genuine” does not necessarily render consent involuntary under Wisconsin law. (¶16).
In the OWI context, the issuance of a telephonic search warrant is an inevitability in nearly all cases involving a refusal, a unique fact pattern that creates some tension within this legal framework. However, under the controlling law, COA therefore reads anything other than an assertion of an already-existing warrant as insufficient to coerce consent.
Next, as to Blackman, which involved the person being read an IAF that misrepresented the consequences of refusal in his specific situation, COA also finds that case easily distinguishable. (¶15). There was no false claim that a warrant would issue, no misrepresentation of the legal consequences of refusal and instead merely the proffering of a “truthful and reasonable prediction of what would happen if Tordoer refused.” (¶¶16-19). COA therefore affirms.