Defense win: COA affirms order suppressing blood test evidence due to coercion
City of Antigo v. John Paul Fermanich, 2023AP1834, 6/16/26, District III (ineligible for publication); case activity
The City of Antigo appeals an order granting John Paul Fermanich’s motion to suppress blood evidence because Fermanich’s consent to the blood draw was coerced. COA affirms in this “close case” as it is the city’s burden to demonstrate that Fermanich freely and voluntarily consented to the warrantless blood draw.
A City of Antigo police officer stopped Fermanich for an equipment violation and observed several clues that Fermanich was intoxicated. Fermanich admitted to having been drinking, submitted to field sobriety tests (which showed multiple clues of impairment), and blew .159 on a PBT. (¶2). The officer arrested Fermanich and told him, “I’m not taking you to jail. You will be able to go home. We will just have to work on a sober driver for you then. So what we do from here I take you to the hospital, get a blood draw, and then I[’ll] release you.” He later read Fermanich the informing the accused form (ITAF) and Fermanich asked a couple of questions before stating “yeah” when asked if he consented to the blood draw. The result of the blood draw showed that Fermanich’s BAC was above the legal limit. (¶3). The city charged Fermanich with OWI and PAC, both as first offenses. (¶4).
Fermanich moved to suppress the evidence obtained as a result of the blood draw, arguing that the officer coerced him into giving consent. (¶5). The circuit court agreed with Fermanich that the officer’s statement before reading him the form was coercive because it made Fermanich’s freedom from continued custody contingent on having his blood drawn. (¶6). The court therefore granted Fermanich’s motion and dismissed the case. (¶7).
On appeal, the city contends that the circuit court erred by granting Fermanich’s motion to suppress because Fermanich’s consent to the blood draw was freely and voluntarily given. (¶8). This case turns on whether the city met its burden of proving, by clear and convincing evidence, that Fermanich’s consent was given freely and voluntarily. (¶10). See State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998). The city argues that Fermanich’s consent was voluntary because the officer’s statement at issue preceded his reading of the ITAF, so it could not have made Fermanich’s consent involuntary. According to the city, a reasonable person, after hearing the ITAF, would have necessarily understood that refusal remained an option. COA concludes that this argument is conclusory and unsupported by evidence in the record, and that the officer’s statement conveyed “that Fermanich was going to be taken to the hospital for a blood draw and would only then be released.” (¶¶12-13).
The city also argues that the officer’s statement was not coercive because the officer believed it was factually accurate, relying on a misapplication of State v. Blackman, 2017 WI 77, ¶64, 377 Wis. 2d 339, 898 N.W.2d 774. COA concludes the city’s argument is flawed because the subjective truthfulness of the statement is not a dispositive factor in the voluntariness analysis and “the controlling inquiry is whether the defendant’s consent was voluntary under the totality of the circumstances—not whether the officer’s statement was technically accurate.” In addition, the officer never told Fermanich that he would be released even if he refused the blood draw, so even if it the officer’s statement was true, it was misleading. (¶¶14-16).
Finally, COA throws in at the end that it “view[s] this as a close case.” And “that makes the burden of proof determinative.” Thus, as the city has not met its burden of demonstrating, by clear and convincing evidence, that Fermanich’s consent to the warrantless blood draw was freely and voluntarily given, COA affirms. (¶17).