State v. Justin Dennis Krizan

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 4, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1341-CR Cir. Ct. No. 2019CT246

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUSTIN DENNIS KRIZAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for St. Croix County:
R. MICHAEL WATERMAN, Judge. Affirmed.

¶1 HRUZ, J.1 Justin Dennis Krizan appeals from a judgment of
conviction, entered upon his no-contest plea, to one count of operating a motor
vehicle with a prohibited alcohol concentration (PAC), contrary to WIS. STAT.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
No. 2022AP1341-CR

§ 346.63(1)(b), as a second offense. Krizan argues that the circuit court erred by
denying his motion to suppress the results of a warrantless blood draw.
Specifically, Krizan argues that law enforcement erroneously informed him that
his operating privileges would be revoked if he refused to submit to the blood
draw, thereby rendering Krizan’s consent to the blood draw involuntary. For the
reasons that follow, we disagree with Krizan and affirm the judgment of
conviction.

BACKGROUND

¶2 In August 2019, St. Croix County Sheriff’s Deputy
Forrest Henriksen was dispatched to investigate a two-vehicle head-on collision on
a two-lane highway. When he arrived at the scene, Henriksen observed Krizan
“halfway seated or laying inside” his vehicle complaining of shortness of breath;
an inability to hear; and “bleeding from multiple areas of his body, including his
head.” Henriksen “detected a strong odor of intoxicant” coming from Krizan.
Krizan was subsequently transported by helicopter to a hospital in Minnesota.

¶3 Deputy Henriksen also spoke to the driver of the other vehicle, who
stated that he was driving northbound in his lane of travel when he observed
Krizan’s vehicle driving southbound in that same lane. The driver stated that he
swerved to try to avoid Krizan’s vehicle but was unsuccessful in avoiding the
collision. Henriksen investigated the debris field around Krizan’s vehicle and
discovered a partially full alcoholic beverage container.2 While Henriksen stated

2
On cross-examination, Deputy Henriksen testified that the alcoholic beverage container
was “opened in reverse to indicate that it was opened during the trauma of the crash” and that he
did not give Krizan a ticket for having an open container of alcohol in a motor vehicle because he
thought that the container was closed prior to the collision.

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No. 2022AP1341-CR

that he was investigating the crash as an operating a motor vehicle while under the
influence (OWI) offense, he did not arrest Krizan at the accident scene due to
Krizan’s injuries and the immediate need for medical treatment.

¶4 Deputy Henriksen informed Deputy Anthony VanSomeren, also
from the St. Croix County Sheriff’s Department, of the facts surrounding the
accident. Henriksen then told VanSomeren that there was probable cause to arrest
Krizan for OWI, and he requested that VanSomeren obtain a blood sample from
Krizan at the hospital. VanSomeren spoke to Krizan, informed him that he “had
been placed under arrest for an OWI,” read him the Informing the Accused form,3
and requested that Krizan consent to providing a blood sample. VanSomeren
stated that he “made sure” that Krizan was aware that he was being charged with
OWI, but VanSomeren was “not sure” if he placed Krizan under arrest at that
point.4 Krizan agreed, and he did not object to the blood draw at any point. The
blood draw revealed that Krizan had a blood alcohol concentration of
0.092g/100mL.

¶5 The State charged Krizan with one count of OWI and one count of
operating a motor vehicle with a PAC, both as a second offense. Krizan moved to

3
“[T]he Informing the Accused form is a script, required to be read by [WIS. STAT.
§ 343.305(4)], that provides information about the legal consequences of consenting to chemical
testing and the legal consequences of refusing.” State v. Heimbruch, 2020 WI App 68, ¶1 n.1,
394 Wis. 2d 503, 950 N.W.2d 916. The purpose of this form is to “advise the accused about the
nature of the driver’s implied consent” under Wisconsin’s implied consent law. State v.
Piddington, 2001 WI 24, ¶17, 241 Wis. 2d 754, 623 N.W.2d 528.
4
One of the issues that arose at the suppression hearing was whether Deputy
VanSomeren had the authority to place Krizan under arrest in Minnesota and whether
VanSomeren did, in fact, place Krizan under arrest. The circuit court concluded that Krizan was
not actually placed under arrest at the hospital and, therefore, it did not need to decide whether
VanSomeren had the authority to place Krizan under arrest. This issue is not material to our
analysis.

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No. 2022AP1341-CR

suppress the results of his blood draw, arguing, among other things, that his
consent was not voluntary due to the injuries that he received in the accident.

¶6 At the suppression hearing, Deputies Henriksen and VanSomeren
testified to the facts set forth above, and VanSomeren’s body camera footage was
admitted into evidence. After briefing, the circuit court issued an oral ruling,
finding that Krizan was not in police custody at the hospital and, therefore, was
not placed under arrest at the time of his consent. The court then found that, while
VanSomeren did not have a warrant to obtain Krizan’s blood, VanSomeren had
grounds to read Krizan the Informing the Accused form and to request a sample of
his blood.

¶7 Specifically, the circuit court noted that WIS. STAT. § 343.305(3)
provides three situations in which law enforcement may request a blood sample,
one being that the operator of a vehicle causes great bodily harm to any person and
law enforcement detects any presence of alcohol. See § 343.305(3)(ar)1. The
court found that the accident had caused Krizan to suffer a serious bodily injury in
the form of partial loss of hearing, Deputy Henriksen detected the odor of alcohol
on Krizan, and alcohol was found at the scene of the accident.5

¶8 The circuit court also found that Deputy VanSomeren inaccurately
informed Krizan at the hospital that he was under arrest, but it concluded that this
inaccurate statement did not render Krizan’s consent involuntary, as there was no
evidence that Krizan relied on that statement when he consented to the blood
draw. The court also found that Krizan’s hearing impediment did not invalidate

5
The circuit court did not make note of the fact that Krizan was bleeding from multiple
areas of his body, including his head.

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No. 2022AP1341-CR

his consent to the blood draw. Rather, the body camera footage showed
VanSomeren and Krizan interacting with each other, VanSomeren spoke loudly
and repeated himself when asked, and Krizan personally read the Informing the
Accused form. The court also found that Krizan heard and understood the request
for a blood draw because he stated, “I comply with taking a blood result.”
Accordingly, the court denied Krizan’s suppression motion.

¶9 Krizan then wrote a letter to the circuit court, which the court
construed as a motion for reconsideration. In the letter, Krizan argued that his
consent was involuntary under State v. Blackman, 2017 WI 77, 377 Wis. 2d 339,
898 N.W.2d 774. The State responded that Blackman did not apply to Krizan’s
situation. The court denied Krizan’s motion on the basis that the circumstances of
his accident were materially distinguishable from those in Blackman.

¶10 Krizan subsequently pled no contest to the PAC charge.6 The circuit
court found that Krizan entered this plea freely, voluntarily, and intelligently, and
it accepted his plea. The court ordered that Krizan serve ten days in jail, that his
driver’s license be revoked for one year, that an ignition interlock device be
installed in his vehicle for one year, and that Krizan pay the minimum fine of
$350, as well as “court costs and other surcharges that get added on top of that.”
Krizan now appeals.

6
Pursuant to WIS. STAT. § 346.63(1)(c), the OWI charge was dismissed after Krizan’s
no-contest plea to the PAC charge.

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No. 2022AP1341-CR

DISCUSSION

¶11 Krizan argues that Deputy VanSomeren provided false information
to him when reading the Informing the Accused form and that this false
information rendered his consent to the blood draw involuntary. Specifically,
Krizan argues that VanSomeren mistakenly informed him that his license would
be revoked if he refused to provide a blood sample.

¶12 “Our review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact.” Blackman, 377 Wis. 2d 339,
¶25 (citation omitted). “[W]e will uphold the circuit court’s findings of fact unless
those findings are clearly erroneous,” and “we conduct an independent, de novo
analysis of the application of constitutional principles to the facts found.” Id. Our
review also requires us to interpret WIS. STAT. § 343.305. Statutory interpretation
and application are questions of law that we review de novo. Blackman, 377
Wis. 2d 339, ¶26.

¶13 “The Fourth Amendment to the United States Constitution and
[a]rticle 1, [s]ection 11 of the Wisconsin Constitution protect persons from
unreasonable governmental searches and seizures. In general, our cases have
ordinarily construed the search and seizure protections of the state and federal
constitutions coextensively.” State v. Johnson, 2007 WI 32, ¶20, 299 Wis. 2d
675, 729 N.W.2d 182. “The Fourth Amendment ordinarily requires a search
warrant for a blood draw unless one of the exceptions to the warrant requirement
exists.” Blackman, 377 Wis. 2d 339, ¶4. One such exception applies, in this
particular context, when “consent to the blood draw was given freely and
voluntarily.” See id.

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No. 2022AP1341-CR

¶14 “Wisconsin has passed an implied consent law, which is designed to
facilitate the gathering of evidence to remove drunk drivers from the road.” State
v. Prado, 2021 WI 64, ¶20, 397 Wis. 2d 719, 960 N.W.2d 869. “When a law
enforcement officer requests a specimen pursuant to the implied consent law, the
officer is required to read to the suspect the ‘Informing the Accused’ form,” which
“is ‘designed to inform drivers of the rights and penalties applicable to them.’”
Id., ¶22 (citation omitted).

¶15 In Blackman, our supreme court ruled that the Informing the
Accused form contains a misrepresentation of the implied consent law, and that
this misrepresentation rendered the defendant’s consent involuntary under the
Fourth Amendment. Blackman, 377 Wis. 2d 339, ¶¶38, 51. In that case, a deputy
requested that the defendant—who was not suspected of operating his vehicle
while intoxicated—submit to a blood draw under WIS. STAT. § 343.305(3)(ar)2.,
and read him the Informing the Accused form. Blackman, 377 Wis. 2d 339, ¶¶30,
37. However, the language in the form differed from the applicable statutory
language. Id., ¶38. Specifically, the form stated that “if a driver refuses to take
any test under § 343.305(3)(ar)2., the driver’s ‘operating privilege will be revoked’
and the driver ‘will be subject to other penalties,’” whereas the statute stated only
that “if a driver refuses to take any test under § 343.305(3)(ar)2., the driver may be
arrested.” Blackman, 377 Wis. 2d 339, ¶38.

¶16 Our supreme court then noted that a driver who is not suspected of a
drunk-driving offense could refuse to submit to a blood test under WIS. STAT.
§ 343.305(3)(ar)2., could request a refusal hearing under § 343.305(9)(a)5.a.,
would prevail at the refusal hearing and not have his or her operating privilege
revoked. Blackman, 377 Wis. 2d 339, ¶¶5, 38. Thus, the court stated that the

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No. 2022AP1341-CR

proper advice to the defendant “was that his operating privilege would be revoked
if he failed to request a refusal hearing.” Id., ¶38.

¶17 Krizan cites Blackman, arguing that he was similarly misinformed
by the Informing the Accused form and that his consent was therefore involuntary.
Krizan misapprehends our supreme court’s holding in Blackman, at least as
applied to the circumstances of this case. Rather, our decision is guided by this
court’s recent decision in State v. Gore, 2025 WI App 11, ___ Wis. 2d ___, ___
N.W.3d ___.

¶18 In Gore, the defendant, similar to Krizan, argued that he was
misinformed by an officer’s reading of the Informing the Accused form and that
this misinformation rendered his subsequent consent to provide a blood sample
involuntary pursuant to Blackman. Gore, 2025 WI App 11, ¶¶11-13. We rejected
the defendant’s argument due to his case being materially distinguishable from
Blackman. Gore, 2025 WI App 11, ¶29. Specifically, we concluded that
“Blackman is limited to situations in which an officer read a driver the Informing
the Accused form under WIS. STAT. § 343.305(4) but did not suspect the driver of
being under the influence of alcohol.” Gore, 2025 WI App 11, ¶29. We
concluded that the officer had probable cause to believe that the defendant
operated his vehicle under the influence of alcohol and, thus, that the officer’s

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No. 2022AP1341-CR

reading of the Informing the Accused form did not render the defendant’s consent
involuntary.7 Id.

¶19 Deputy VanSomeren asked Krizan to submit to a blood draw under
WIS. STAT. § 343.305(3)(ar)1., which provides, in pertinent part:

If a person is the operator of a vehicle that is involved in an
accident that causes substantial bodily harm, as defined in
[WIS. STAT. §] 939.22(38), to any person, and a law
enforcement officer detects any presence of alcohol, a
controlled substance, a controlled substance analog or other
drug, or a combination thereof, the law enforcement officer
may request the operator to provide one or more samples of
his or her breath, blood, or urine for the purpose specified
under sub. (2)…. If a person refuses to take a test under
this subdivision, he or she may be arrested under par. (a).

¶20 In identifying WIS. STAT. § 343.305(3)(ar)1. as the pertinent
subdivision, the circuit court noted that: (1) Krizan suffered from a serious bodily
injury as defined by WIS. STAT. § 939.22(38) due to his hearing loss;8 (2) nothing
in § 343.305(3)(ar)1. requires that the serious bodily injury be to a third party;
(3) Deputy Henriksen detected an odor of alcohol on Krizan; and (4) an alcoholic
beverage was found in the debris around Krizan’s vehicle. Krizan does not argue
that any of those findings are clearly erroneous.

7
Krizan’s appeal differs slightly from Gore, 2025 WI App 11, in that the officer in Gore
sought to obtain a blood sample from the defendant under WIS. STAT. § 343.305(3)(ar)2., whereas
Deputy VanSomeren sought to obtain a blood sample from Krizan under § 343.305(3)(ar)1. See
Gore, 2025 WI App 11, ¶29. This difference, however, does not change our analysis. Like the
officer in Gore, VanSomeren had probable cause to believe that Krizan had operated his vehicle
under the influence of alcohol. See id., ¶4. Therefore, Blackman does not apply, and Krizan’s
consent was not rendered involuntary.
8
WISCONSIN STAT. § 939.22(38) provides: “‘Substantial bodily harm’ means bodily
injury that causes a laceration that requires stitches, staples, or a tissue adhesive; any fracture of a
bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight or hearing; a
concussion; or a loss or fracture of a tooth.”

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No. 2022AP1341-CR

¶21 Unlike the applicable subdivision of WIS. STAT. § 343.305 in
Blackman, § 343.305(3)(ar)1. does apply to a drunk-driving offense, as it requires
law enforcement to detect the presence of alcohol. Cf. Blackman, 377 Wis. 2d
339, ¶5; § 343.305(3)(ar)1. Further unlike Blackman, Deputy VanSomeren had
probable cause to believe that Krizan was operating a motor vehicle while under
the influence, due to Deputy Henriksen’s detection of the odor of alcohol on
Krizan and the fact that an alcoholic beverage was located at the scene of the
accident. Cf. Blackman, 377 Wis. 2d 339, ¶5.

¶22 Finally, unlike the defendant in Blackman, Krizan would have had
his driving privileges revoked if he refused to submit to a blood test. Pursuant to
WIS. STAT. § 343.305(9)(a), Krizan could have refused to submit to the blood test
and requested a refusal hearing. The refusal hearing would have been limited to
the following issues:

a. Whether the officer had probable cause to believe the
person was driving or operating a motor vehicle while
under the influence of alcohol, a controlled substance or a
controlled substance analog or any combination of alcohol,
a controlled substance and a controlled substance analog,
under the influence of any other drug to a degree which
renders the person incapable of safely driving, or under the
combined influence of alcohol and any other drug to a
degree which renders the person incapable of safely
driving, having a restricted controlled substance in his or
her blood, or having a prohibited alcohol concentration ….

b. Whether the officer complied with sub. (4).

c. Whether the person refused to permit the test….

Sec. 343.305(9)(a)5.a.-c.

¶23 As stated above, Deputy VanSomeren did have probable cause to
believe that Krizan was operating a motor vehicle while under the influence of

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No. 2022AP1341-CR

alcohol. Further, Krizan concedes that VanSomeren complied with
WIS. STAT. § 343.305(4), which requires a law enforcement officer to read the
Informing the Accused form to the person from whom the test specimen is
requested. Thus, if Krizan had refused to provide the blood sample, the circuit
court would have found that Krizan’s refusal was improper and would have
subsequently revoked Krizan’s operating privileges. See § 343.305(10); see also
Gore, 2025 WI App 11, ¶29. Accordingly, VanSomeren’s reading of the
Informing the Accused did not render Krizan’s consent to the blood draw
involuntary.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

11