COA rejects claim that consent to blood draw given by injured motorist was involuntary
State v. Bailey Reed Vande Slunt, 2025AP2284-CR, 9/9/26, District II (ineligible for publication); case activity
Although Vande Slunt argues that his condition following a significant car crash rendered his consent involuntary, COA rejects his reliance on a persuasive federal case and affirms.
Police in Fond du Lac County responded to a report of a crash and “observed a severely damaged vehicle in a ditch with a slumped over and unconscious man in the driver’s seat, later identified as Vande Slunt.” (¶2). Police were able to rouse Vande Slunt, who crawled out of the damaged car and was placed in the squad car for his safety. (Id.). Vande Slunt was taken to a local hospital for his injuries, where the OWI investigation continued. (¶4). Ultimately, he was asked to consent to a blood draw. (¶5). Although Vande Slunt can be seen closing his eyes at one point during the video, the deputy later testified that Vande Slunt “appeared coherent.” (Id.). Vande Slunt moved to suppress, arguing that his consent was involuntary under a Seventh Circuit case, United States v. Grap. (¶6). He argued that his medical condition rendered the consent involuntary. (Id.). The trial court disagreed and made findings of fact that Vande Slunt was “not asleep” and was “in an adequate state of mind to voluntarily consent to the blood draw.” (¶7).
Vande Slunt renews his arguments on appeal, asserting that under Grap, “the deputy should have consulted Vande Slunt’s physician for an opinion as to whether Vande Slunt was even capable of making a voluntary choice.” (¶16). COA, however, holds that Grap is non-binding (and, even if it was, that Vande Slunt would lose under that test; in fact, the consenting person in Grap was found to have validly consented to a search). (¶17). Instead, it applies the multi-factor test set forth in State v. Artic. (Id.). These factors favor the State:
- “First, there is no evidence the deputy used deception, trickery, or misrepresentation when asking Vande Slunt if he would consent to a blood draw.”
- “Second, there is nothing to suggest the deputy threatened Vande Slunt to obtain his consent.”
- “Third, the request came in a cooperative and congenial manner.”
- “Fourth, in response to the blood draw request, Vande Slunt did seem to take a few seconds to think about the deputy’s request and awkwardly stared at him. However, Vande Slunt did not deny the request in the moment and rather seemed to actively consider the request, which suggests active use of cognitive function.
(¶18). As to the fifth factor, which focuses on Vande Slunt’s “physical/mental condition,” COA concludes that the record evidence does not prove the circuit court’s findings clearly erroneous. (¶20). Finally, while Vande Slunt was not told “verbatim” he could refuse, he was read the Informing the Accused, which sufficiently advised Vande Slunt of his ability to decline the blood draw. (¶21). Under the totality of the circumstances and applying the proper standard of review to the circuit court’s embedded factual findings, COA affirms. (¶22).