Winnebago County v. Michael Jon Potratz

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.
April 29, 2026
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. 2025AP1059 Cir. Ct. No. 2024TR5980

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WINNEBAGO COUNTY,

PLAINTIFF-RESPONDENT,

V.

MICHAEL JON POTRATZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago
County: MICHAEL D. RUST, Judge. Affirmed.

¶1 GUNDRUM, J.1 Michael Jon Potratz appeals from a judgment of
conviction entered after a jury found him guilty of operating a motor vehicle while
intoxicated (OWI). Specifically, he contends the circuit court erred in denying his

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(g) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP1059

motion to suppress the evidence flowing from the blood draw performed on him
after a traffic stop, asserting he did not freely and voluntarily consent to the draw.
For the following reasons, we conclude the court did not err, and we affirm.

BACKGROUND

¶2 At the hearing on Potratz’ suppression motion, the following
relevant evidence was presented.

¶3 Winnebago County Sheriff’s Deputy Jacob Noffke testified that he
was dispatched to a particular area within the county as a result of a report that a
vehicle “had been driving on the wrong side of the road and deviating from its
lane before going into a ditch and pulling into a driveway.” After locating and
then approaching the vehicle, the deputy observed that there was only one
occupant in it, and he “appeared to be passed out.” The occupant eventually woke
up and was identified as Potratz. Potratz emitted a strong odor of intoxicants, had
difficulty balancing, had glossy eyes, evidenced “six out of six clues” on the
horizontal gaze nystagmus test, and admitted he had “had a couple” of alcoholic
drinks that evening.

¶4 Potratz was eventually taken into custody, and the deputy read him
the Informing the Accused form, which was admitted into evidence at the hearing.
After the deputy read him the form, Potratz agreed to submit to an evidentiary
chemical test, so the deputy transported him to a hospital for a blood draw.

¶5 At the hospital, when the phlebotomist entered Potratz’ room to
perform the blood draw, “[h]e started shaking his head no, saying that he did not
want to … give his blood.” In response, the deputy

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initially told him that … we would go outside and we just
had more paperwork to complete at that point. [Potratz]
started talking about how he didn’t like needles. And so I
told him that if he were to refuse that I would be applying
for a search warrant, and if it is granted that we would still
take his blood and there would still be a needle involved.

Potratz then “said he didn’t want to refuse, he just did not like needles. He was
back and forth on whether or not he wanted to give his blood. So I told him we
can either do this or he can refuse. And he again stated he did not want to refuse.”
When asked whether Potratz “ultimately … consented to his blood being drawn on
that date,” the deputy responded, “He did.” The deputy agreed that he believed he
had probable cause for a search warrant if securing one became necessary.

¶6 On cross-examination, the deputy confirmed that he remembered
Potratz saying “no” when the phlebotomist told him she had to draw his blood and
that he then discussed with Potratz that if he refused, the deputy would have to do
more paperwork, call a judge, and get a warrant. After watching video from that
night that was captured on his body camera and admitted into evidence, the deputy
agreed Potratz shook his head and looked at the deputy when the phlebotomist had
said to him “this is just blood.” The deputy confirmed Potratz said “no” to having
his blood drawn. The deputy then told Potratz he would have to get a search
warrant, and Potratz shook his head and said “no” a second time. The deputy
agreed he then told Potratz “we will be able to draw it anyway if that warrant is
granted” and asked him, “Do you understand that?” Potratz responded with words
to the effect of “fine, just do it.” The deputy agreed that when the phlebotomist
left the room to get a nurse to assist with operating the bed Potratz was on, the
deputy indicated to Potratz that the deputy was “not marking it as a refusal
because [the deputy] d[idn’t] know if he really want[ed] to refuse.” The deputy
testified that Potratz “said something … to the effect of not … wanting to refuse.”

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The deputy again confirmed telling Potratz that if he refused, the deputy would
attempt to get a warrant for the blood draw.

¶7 The deputy agreed that after the nurse came in and laid down the bed
to proceed with the blood draw, Potratz crossed his arms and sat up, and when the
nurse then talked to him about laying back and having his blood taken, Potratz
“again … shakes his head no.” The deputy confirmed Potratz then “start[ed] to
lay back and sits forward and says, I just want to go home,” to which the deputy
informed him that “going home is not an option here, your option is to take the test
or to refuse the test.” The deputy agreed that Potratz then asked “to do something
else” and the deputy responded, “[N]o, we can’t, blood is what we do.” The
deputy did not believe there was any other conversation between himself and
Potratz before hospital staff took his blood. The deputy stated that he was the only
officer in Potratz’ hospital room.

¶8 Considering the supreme court decisions of State v. Artic, 2010 WI
83, ¶33, 327 Wis. 2d 392, 424, 786 N.W.2d 430, and State v. Phillips, 218 Wis. 2d
180, 198-200, 577 N.W.2d 794 (1998), and the six factors discussed therein for
determining if consent is voluntary, the circuit court denied the suppression
motion, determining Potratz voluntarily consented to the blood draw.

I do believe [the six factors] weigh in favor of the County
and the voluntariness of the decision that was made by
Mr. Potratz to provide the consent to the blood draw. In
looking at the video …, Mr. Potratz does voluntarily lie
back at the request of the phlebotomist. While there were
definitely … moments where Mr. Potratz did shake his
head or otherwise say he … didn’t like the concept or he
wanted to go home, that doesn’t, to me, state that he was
refusing to take this test, and his choice to voluntarily lay
back at the request of the phlebotomist is not coercion by
law enforcement to take this test.

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No. 2025AP1059

As I look … at each of the six factors as required under
Phillips, I do find that each of them does fall … in favor of
the County. There was no deception. There was no threat.
There was a nonthreatening and cooperative atmosphere.…
[T]here was actually an initial grant, not an initial
refusal.… [T]here is no evidence that there would be any
limitation of the defendant’s ability to consent or to refuse.
And he was repeatedly informed of his right to refuse … or
consent, and every time that the deputy did state that this
was a choice that he was making to refuse that … they
would seek a warrant and, if granted, they would move
forward to a blood draw anyway. And, ultimately, it was
Mr. Potratz who did lay back of his own volition to allow
that test to continue.

¶9 Potratz subsequently was found guilty at a jury trial of OWI.
Following the imposition of his sentence, he now appeals.

DISCUSSION

¶10 Potratz insists his consent to the blood draw was not freely and
voluntarily given and the circuit court erred in determining otherwise in denying
his suppression motion. We disagree.

¶11 The County “bears the burden of proving that consent was given
freely and voluntarily, and it must satisfy that burden by clear and convincing
evidence.” See Artic, 327 Wis. 2d 392, ¶32 (citation omitted). A circuit court
determines whether the County has shown free and voluntary consent by
considering the totality of the circumstances in light of multiple nonexclusive
factors:

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant to
persuade him to consent; (2) whether the police threatened
or physically intimidated the defendant or “punished” him
by the deprivation of something like food or sleep;
(3) whether the conditions attending the request to search
were congenial, non-threatening, and cooperative, or the
opposite; (4) how the defendant responded to the request to
search; (5) what characteristics the defendant had as to age,

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intelligence, education, physical and emotional condition,
and prior experience with the police; and (6) whether the
police informed the defendant that he could refuse consent.

Id., ¶32-33 (citing Phillips, 218 Wis. 2d at 198-200).

¶12 “When we review a circuit court’s ruling on a motion to suppress
evidence, we apply the clearly erroneous standard to the circuit court’s findings of
fact. However, we review the circuit court’s application of constitutional
principles to the findings of fact de novo.” State v. Smiter, 2011 WI App 15, ¶9,
331 Wis. 2d 431, 793 N.W.2d 920 (2010) (citation omitted).

¶13 As the appellant, Potratz bears “the burden of … demonstrat[ing]
that the [circuit] court erred.” See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376
Wis. 2d 448, 899 N.W.2d 381.

¶14 In his brief-in-chief, Potratz develops no legal argument in support
of his contention that he did not freely and voluntarily consent. While he details
particular facts from the evidentiary hearing that he views as favorable to him and
lists the above Arctic/Phillips factors, he fails to discuss how those factors apply
in this case in light of the evidence presented at the hearing. Rather than making a
legal argument based on Arctic, Phillips, or any other legal authority, he instead
relies on his ipse dixit conclusion that he did not consent to the blood draw.
Because he fails to develop a legal argument, we could end our review there and
affirm. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)
(“Arguments unsupported by references to legal authority will not be
considered.”); Borsellino v. DNR, 2000 WI App 27, ¶11, 232 Wis. 2d 430, 606
N.W.2d 255; ABKA Ltd. P’ship v. Board of Rev., 231 Wis. 2d 328, 349 n.9, 603
N.W.2d 217 (1999) (stating we do not address undeveloped arguments).
Nonetheless, we will do more.

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¶15 In denying Potratz’ suppression motion, the circuit court considered
the evidence and applied the Artic/Phillips factors, with which, again, Potratz fails
to engage. Like the court, the County, in its response brief, does a good job of
ticking through the Artic/Phillips factors and applying them to the evidence from
the hearing. We deem it appropriate to simply adopt those arguments here:

The first factor, whether the police used deception,
trickery, or misrepresentation goes in favor of
voluntariness. Deputy Noffke did not use any deception,
trickery, or misrepresentations in obtaining consent from
Mr. Potratz. Deputy Noffke transported Mr. Potratz to the
hospital after Mr. Potratz was read the Informing the
Accused form verbatim, and consented to a legal blood
draw. At the hospital, when the phlebotomist entered the
room to complete the blood draw, Mr. Potratz began
shaking his head no and stated he did not want to give
blood. Mr. Potratz further informed Deputy Noffke that he
did not like needles. At this point, Deputy Noffke informed
Mr. Potratz that if he was now going to refuse the blood
draw, Deputy Noffke would have to apply for a search
warrant, and if it was granted, the blood draw would
nonetheless be done and would involve a needle.
Mr. Potratz responded to this information by stating he did
not want to refuse, he just did not like needles.

This first factor weighs in favor of voluntariness
because Deputy Noffke acknowledged that there were two
clear options here, that Mr. Potratz either consent to the
blood draw or he could refuse, and if a warrant was
granted, the blood draw, involving a needle, would still
happen. Nothing about what Deputy Noffke told
Mr. Potratz was false or misrepresented.

The second factor, whether the police threatened or
physically intimidated the defendant or “punished” him
also weighs in favor of voluntariness as Deputy Noffke did
not threaten, intimidate, or punish Mr. Potratz. When
Mr. Potratz began shaking his head and indicating he did
not want the blood draw to be completed with a needle,
Deputy Noffke responded by informing Mr. Potratz that he
would simply apply for a warrant based on probable cause.
The Artic Court found that “[t]hreatening to obtain a search
warrant does not vitiate consent if ‘the expressed intention
to obtain a warrant is genuine. . . and not merely a pretext
to induce submission.’” Artic, 327 Wis. 2d [392,] ¶41

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(internal citation omitted). Here, Deputy Noffke’s
statement that if Mr. Potratz refused, he would apply for [a]
warrant, and if the warrant was approved, the blood draw
would happen anyway[], was not a baseless threat. This is
confirmed not only by Mr. Potratz’s agreement that there
was sufficient probable cause to arrest, but Deputy Noffke
further testified that he believed he had sufficient probable
cause to obtain a warrant.

The third factor, whether the conditions at the time of
consent were non-threatening and cooperative, again goes
in favor of voluntariness. Here, there was no show of
force. While there was additional hospital personnel
present at the time, Deputy Noffke was the only law
enforcement officer in the room, and there was no show of
force.

The fourth factor, which considers how the defendant
responded to the request to search, is also in favor of
voluntariness. “An initial refusal of a request to search will
weigh against [a] finding of voluntariness.” Artic, 327
Wis. 2d [392,] ¶56. Here, Mr. Potratz initially consented to
a legal blood draw after Deputy Noffke read him the
Informing the Accused form verbatim. While later at the
hospital Mr. Potratz shook his head indicating he did not
want the blood draw to be conducted, and made numerous
statements that he did not like needles, Mr. Potratz also
seemed hesitant to be marked as a refusal. Ultimately,
Mr. Potratz re-affirmed his earlier consent when he allowed
the blood draw to be completed. This factor also goes in
favor of voluntariness.

The fifth factor, which examines the characteristics of
the defendant, is also in favor of voluntariness. “A person
need not possess exceptional intelligence, legal knowledge,
or experience with law enforcement to give voluntary
consent.” Artic, 327 Wis. 2d [392,] ¶59. Rather, the focus
is on “whether there was evidence suggesting that the
defendant was particularly susceptible to improper
influence, duress, intimidation, or trickery.” Id. [(citation
omitted).] Here, there was nothing in the record indicating
Mr. Potratz was otherwise susceptible to undue influence or
intimidation. Thus, this factor would go in favor of
voluntariness.

Finally, the sixth factor, which considers whether an
officer informed the defendant he could refuse to consent,
also weighs in favor of voluntariness. While officers are
not required to inform a defendant of a right to refuse to
consent, it is clear from the record that Mr. Potratz knew he

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had the right to refuse to consent to the blood draw as he
was read the Informing the Accused, which provided him
with two choices, to either consent or refuse. When
Mr. Potratz was subsequently informed that if he refused
Deputy Noffke would apply for a warrant, Mr. Potratz
explicitly told Deputy Noffke that he did not want to
refuse, he just did not like needles. Therefore, this factor
also goes in favor of voluntariness.

When considering the totality of the circumstances, it is
clear that Mr. Potratz consented to a legal blood draw and
evidentiary chemical test of his blood and that consent was
given freely and voluntarily, as all six factors for
voluntariness have been met.

(Record citations omitted; footnote omitted.)2

¶16 Even in his reply brief, Potratz fails to wrangle with the
Arctic/Phillips factors. Instead, he focuses on an argument that he revoked his
consent to the blood draw. While we do not consider this argument because he
raises it for the first time on appeal, and in his reply brief no less, see Northern
States Power Co. v. National Gas Co., 2000 WI App 30, ¶21 n.6, 232 Wis. 2d
541, 606 N.W.2d 613 (“We do not generally consider issues raised for the first
time on appeal, nor do we consider arguments made for the first time in a reply
brief to which the respondent does not have the opportunity to respond.” (citations
omitted)), it is also insufficiently developed, so we could reject it on that basis as
well.

¶17 As indicated, as the appellant, Potratz bears the burden of
demonstrating that the circuit court erred. He cannot meet that burden when he
fails to sufficiently develop an argument as to such asserted error. Moreover, in

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The County further states that “[t]his court and the United States Supreme Court have
refused to adopt a requirement that officers must advise a person of a right to refuse consent.
State v. Artic, 2010 WI 83, ¶60, 327 Wis. 2d 392, 424, 786 N.W.2d 430, 446.”

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this case, the State more than sufficiently shows that, when considering the totality
of the evidence in light of the relevant factors a court is to consider, the court did
not err in its determination that Potratz freely and voluntarily gave consent to the
blood draw.

By the Court.—Judgment affirmed.

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

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