State v. Christopher A. Gore

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.
January 7, 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. 2023AP169-CR Cir. Ct. No. 2020CF193

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER A. GORE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Oneida County:
MARTHA J. MILANOWSKI, Judge. Affirmed.

Before Stark P.J., Hruz and Gill, JJ.

¶1 GILL, J. Christopher A. Gore appeals from a judgment of
conviction, entered upon his no-contest plea, to one count of homicide by use of a
vehicle with a prohibited alcohol concentration. Citing State v. Blackman, 2017
WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, Gore argues that the circuit court erred
No. 2023AP169-CR

by denying his motion to suppress the results of a blood draw. He also argues that
his motion to suppress should have been granted because an officer informed Gore
that he would seek a warrant if Gore refused to provide his consent for the blood
draw.

¶2 Our state supreme court held in Blackman that an officer’s reading
of the Informing the Accused form to a driver under WIS. STAT.
§ 343.305(3)(ar)2. (2021-22)1 rendered the driver’s subsequent consent
involuntary because law enforcement did not have probable cause to believe that
the person was driving or operating a motor vehicle while under the influence of
alcohol. See Blackman, 377 Wis. 2d 339, ¶¶44, 51, 64-66. The court stated that a
“driver who [is] not suspected of a drunk-driving offense would prevail at a
refusal hearing and his [or her] operating privilege would not be revoked.” Id., ¶5.
Accordingly, the court held that the officer’s statement, read from the Informing
the Accused form, that the driver’s operating privilege would be revoked or the
driver would be subject to other penalties for refusing to consent to a blood draw
was inaccurate and coerced the driver into consenting to the blood draw. Id, ¶¶44,
51, 64-66.

¶3 Gore maintains that he involuntarily consented to the blood draw for
two reasons. First, prior to his giving consent, an officer read him the Informing
the Accused form, see WIS. STAT. § 343.305(4), despite the fact that he was not
under arrest under § 343.305(3)(a) at that time. The officer proceeded under
§ 343.305(3)(ar)2. and read the following to Gore: “If you refuse to take any test

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2023AP169-CR

that this agency requests, your operating privilege will be revoked and you will be
subject to other penalties.” See § 343.305(4) (emphasis added). According to
Gore, the Informing the Accused form was inaccurately read to him because as in
Blackman, it was not certain that his operating privilege would be revoked at a
refusal hearing. Gore asserts that because he was materially misinformed in this
manner, his consent was involuntary. Second, Gore argues that the officer’s
statement to him that the officer would seek a warrant if Gore refused to provide
his consent also rendered his consent involuntary.

¶4 We conclude that Blackman is distinguishable and the holding in
that case does not require suppression of the results of Gore’s blood draw. It is
undisputed that the officer in this case was acting under WIS. STAT.
§ 343.305(3)(ar)2., that Gore was read the Informing the Accused form, and that
Gore was not under arrest pursuant to § 343.305(3)(a). However, law enforcement
had probable cause to believe that Gore was operating a motor vehicle while under
the influence of alcohol, and Gore could have been arrested under § 343.305(3)(a)
if he had refused a test under § 343.305(3)(ar)2. See § 343.305(3)(ar)2. (“If a
person refuses to take a test under this subdivision, he or she may be arrested
under par. (a).”). At that point, his operating privilege could have been revoked
because “the officer had probable cause to believe [Gore] was driving or operating
a motor vehicle while under the influence.”2 See § 343.305(9)(a)5.a. Moreover,
the officer’s statement that he would attempt to obtain a warrant if Gore refused to
consent to a blood draw did not render Gore’s consent involuntary. We therefore
affirm Gore’s judgment of conviction.

2
Accordingly, we affirm on grounds other than those relied on by the circuit court.
See State v. Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770 N.W.2d 755.

3
No. 2023AP169-CR

BACKGROUND

¶5 The State charged Gore with one count each of homicide by
intoxicated use of a vehicle and homicide by intoxicated use of a vehicle with a
prohibited alcohol concentration. Gore filed a motion to suppress the results of his
blood draw, arguing that his consent to the blood draw was involuntary. He
claimed that he was coerced to consent to the blood draw because the Informing
the Accused form read to him prior to his consent led him to believe that if he did
not consent his operating privilege would be revoked. He asserted that the reading
of the Informing the Accused form was misleading as he was not under arrest for
operating a motor vehicle while intoxicated (OWI) at the time it was read; the
request for a blood draw was made under WIS. STAT. § 343.305(3)(ar)2.; and the
blood draw request “was due solely to the fact that [Gore] was involved in a motor
vehicle accident that involved death of a person.”3 Therefore, according to Gore,
our state supreme court’s holding in Blackman applied to his circumstances and
his consent was involuntary.

¶6 The circuit court held an evidentiary hearing on Gore’s motion to
suppress at which Officer Devon Gaszak and Lieutenant Jason Benbenek, both
with the Minocqua Police Department, testified. The following facts underlying
Gore’s charges are undisputed for purposes of our review of the suppression
motion. At 9:18 p.m. on July 12, 2020, law enforcement received information

3
Before the circuit court, Gore also argued that his injuries sustained in the crash
prevented him from freely and voluntarily consenting to the blood draw and that WIS. STAT.
§ 343.305(3)(ar) is unconstitutional on its face and as applied. The court denied both arguments.
Gore does not challenge either of these decisions on appeal, and we will not consider them
further. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct.
App. 1998).

4
No. 2023AP169-CR

from dispatch that there had been a single-vehicle rollover crash. Four minutes
later, Gaszak arrived at the scene of the crash. Upon his arrival, Gaszak observed
a vehicle upside down in the parking lot of Minocqua Prime—a restaurant—and
emergency medical technicians (EMTs) extracting an individual, later identified as
Gore, from the vehicle. Another individual was ejected from the vehicle during
the crash and was declared dead at the scene. Gore was the registered owner of
the vehicle. Gaszak testified that the part of the road where the vehicle had
crashed was “hardly … curve[d] at all.”

¶7 The EMTs at the scene informed Officer Gaszak that Gore had
“admitted to consuming intoxicants” and “they believed [Gore] was the driver” of
the vehicle because his feet were tangled in the steering wheel. Gaszak agreed
with the EMTs that Gore was the driver of the vehicle. He did so based on the fact
that Gore was not ejected from the vehicle; the driver’s seat belt was “stretched
out,” not “retracted” (demonstrating that it was worn during the accident); and the
passenger’s seat belt appeared unworn.

¶8 Officer Gaszak then spoke with Gore, who mentioned something
about “golfing” and that “he was coming to Minocqua Prime to meet a friend.”
Gaszak testified at the suppression hearing that Gore “seemed to be confused and
not remembering the crash,” and Gaszak smelled an odor of alcohol coming from
him. In addition, Gaszak stated that the “weather was clear. The roads were dry.
It was still light out.” After Gaszak spoke with Gore, Gore was transported by
ambulance to a nearby hospital. Gaszak believed Gore was driving while
intoxicated at the time of the accident and that Gore’s intoxication caused the
crash. More specifically, Gaszak believed that Gore had committed “homicide by
intoxicated use of a vehicle.”

5
No. 2023AP169-CR

¶9 At 10:18 p.m., Officer Gaszak contacted Lieutenant Benbenek and
recited information to him about the accident, including that Gore was being
transported to the hospital, had admitted to consuming alcohol, and smelled of
alcohol. Gaszak requested that Benbenek travel to the hospital to obtain an
evidentiary blood sample from Gore. Benbenek then went to the hospital, arriving
at approximately 10:30 p.m., and after receiving permission from hospital staff,
spoke with Gore, who “seemed very alert.”

¶10 Gore informed Lieutenant Benbenek that he had consumed “a couple
beers” prior to the crash and had not eaten that day. Benbenek testified that
Gore’s statement about not eating that day was significant to him because “if
people don’t eat, alcohol can absorb a little bit quicker into the system and
heighten impairment.” Benbenek then spoke with an EMT who was at the scene
of the crash. The EMT informed Benbenek that he believed Gore was the driver
of the vehicle.

¶11 Afterward, Lieutenant Benbenek returned to his squad car to
complete a standard Informing the Accused form. See WIS. STAT. § 343.305(4).
When Benbenek had completed the form, he reentered the hospital and read the
form to Gore, including the statement: “If you refuse to take any test that this
agency requests, your operating privilege will be revoked and you will be subject
to other penalties.” See id.

¶12 Gore initially consented to a blood draw, but he then asked
Lieutenant Benbenek what would happen if he said “no.” Benbenek responded,
stating that he “would contact a judge and look to get a warrant.” Gore ultimately
stated that he would consent to the blood draw. Lab results from the blood draw
showed that Gore had a blood alcohol concentration of 0.239g/100mL.

6
No. 2023AP169-CR

¶13 Lieutenant Benbenek conceded at the suppression hearing that no
officer “made any effort to obtain a search warrant to draw blood from Mr. Gore.”
Benbenek also stated that Gore was not under arrest at the time he read the
Informing the Accused form but that Benbenek read the form to Gore based on
department “OWI procedures” and the fact that he had probable cause that Gore
was “[o]perating while intoxicated” and caused the death of another person.

¶14 The circuit court denied Gore’s suppression motion.4 The court
assumed, without deciding, that Gore’s consent was rendered involuntary “due to
the misrepresentation of the consequences of his refusal to voluntarily submit to a
blood draw” that occurred when Lieutenant Benbenek read him the Informing the
Accused form. Nonetheless, the court held that “the doctrine of inevitable
discovery applie[d] to prevent the blood draw results from being suppressed
pursuant to the exclusionary rule.”5

¶15 Gore later pled no contest to one count of homicide by use of a
vehicle with a prohibited alcohol concentration. He was sentenced to five years of
initial confinement followed by five years of extended supervision, and his
operating privilege was revoked for a period of five years. Gore now appeals.

4
The Honorable Patrick F. O’Melia presided over the suppression hearing and issued the
order denying Gore’s motion to suppress. Thereafter, Judge O’Melia retired from the bench, and
the Honorable Martha J. Milanowksi was appointed to preside over the remainder of Gore’s case.
5
Gore filed a petition for leave to appeal the circuit court’s order denying his
suppression motion. We denied the petition.

7
No. 2023AP169-CR

DISCUSSION

¶16 On appeal, Gore contends that the circuit court erred by denying his
motion to suppress the results of his blood draw because his consent was
involuntary. In particular, Gore argues that his consent was involuntary because
Lieutenant Benbenek told him that if he refused to take any test the agency
requested: (1) Gore’s operating privilege would be revoked, and he would be
subject to other penalties; and (2) Benbenek “would contact a judge and look to
get a warrant.”

¶17 “Our review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact.” State v. Tullberg, 2014 WI
134, ¶27, 359 Wis. 2d 421, 857 N.W.2d 120 (citation omitted). “We review a
question of constitutional fact under a two-step inquiry: First, we will uphold the
circuit court’s findings of fact unless those findings are clearly erroneous. Second,
we conduct an independent, de novo analysis of the application of constitutional
principles to the facts found.” Blackman, 377 Wis. 2d 339, ¶25.

¶18 We are also tasked with interpreting and applying WIS. STAT.
§ 343.305, the implied consent statute. Interpretation and application of a statute
are questions of law that we review de novo. State v. Forrett, 2022 WI 37, ¶5,
401 Wis. 2d 678, 974 N.W.2d 422.

¶19 “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 is consent, which requires
the State to prove by clear and convincing evidence that consent was, in fact,
given and that it was voluntary. Id., ¶54. Factors relevant to the voluntariness of
consent include “whether the police used deception, trickery, or misrepresentation

8
No. 2023AP169-CR

in their dialogue with the defendant to persuade him [or her] to consent.” Id., ¶59
(citation omitted).

¶20 “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. Under WIS. STAT.
§ 343.305(2), as applicable here, any person who drives or operates a motor
vehicle upon Wisconsin’s public highways “is deemed to have given consent to
one or more tests of his or her” blood “for the purpose of determining the presence
or quantity in his or her blood” of alcohol “when requested to do so by a law
enforcement officer under sub. (3)(a) … or when required to do so under
sub. (3)(ar).” See also State v. Brar, 2017 WI 73, ¶21, 376 Wis. 2d 685, 898
N.W.2d 499 (discussing Wisconsin’s implied consent law).

¶21 WISCONSIN STAT. § 343.305(3)(a) and (ar) outline the specific
circumstances in which § 343.305(2) applies. Under § 343.305(3)(a), subsec. (2)
applies in two situations. First, subsec. (2) applies “[u]pon arrest of a person for
violation of” a host of OWI-related offenses, including homicide by intoxicated
use of a vehicle.6 See § 343.305(3)(a); WIS. STAT. § 940.09. Second, subsec. (2)
applies “upon arrest subsequent to a refusal under par. (ar).” See § 343.305(3)(a).
In turn, § 343.305(3)(ar)2. states that subsec. (2) applies when “a person is the
operator of a vehicle that is involved in an accident that causes the death of or
great bodily harm to any person and the law enforcement officer has reason to
believe that the person violated any state or local traffic law.” Under

6
This court has previously referred to this first clause in WIS. STAT. § 343.305(3)(a) as
“the intoxicated driver provision.” State v. Heimbruch, 2020 WI App 68, ¶7, 394 Wis. 2d 503,
950 N.W.2d 916. We do the same here.

9
No. 2023AP169-CR

§ 343.305(3)(ar)2., “an officer may request a blood draw without having a scintilla
of a suspicion that the driver is intoxicated. The officer need have reason to
believe only that a driver violated a state or local traffic law and was in an accident
that caused great bodily harm.” Blackman, 377 Wis. 2d 339, ¶34. “If a person
refuses to take a test under [para. (ar)2.], he or she may be arrested under par. (a).”
Sec. § 343.305(3)(ar)2.

¶22 WISCONSIN STAT. § 343.305(4) dictates that a law enforcement
officer must read the Informing the Accused form7 to a driver “[a]t the time that a
chemical test specimen is requested under” paras. (3)(a) or (ar). “The form is
‘designed to inform drivers of the rights and penalties applicable to them.’”
Prado, 397 Wis. 2d 719, ¶22 (citation omitted). In pertinent part, the Informing
the Accused form tells the driver that one or more of the situations in paras. (3)(a)
or (ar) apply and reads: “If you refuse to take any test that this agency requests,
your operating privilege will be revoked and you will be subject to other
penalties.” Sec. 343.305(4) (emphasis added).

¶23 WISCONSIN STAT. § 343.305(9)(a) “provides the penalty for refusing
a post-arrest request for a chemical test under” § 343.305(3)(a), see Blackman,
377 Wis. 2d 339, ¶41, and states that “[i]f a person refuses to take a test under
sub. (3)(a), the law enforcement officer shall immediately prepare a notice of
intent to revoke, by court order under sub. (10), the person’s operating privilege,”
§ 343.305(9)(a). The notice of intent to revoke shall contain several pieces of
information outlined in § 343.305(9)(a)1.-6., including that “prior to a request

7
“The form is set forth verbatim in WIS. STAT. § 343.305(4).” State v. Blackman, 2017
WI 77, ¶17 n.4, 377 Wis. 2d 339, 898 N.W.2d 774.

10
No. 2023AP169-CR

under sub. (3)(a), the officer had placed the person under arrest for” an OWI
violation “or had requested the person to take a test under sub. (3)(ar).”
Sec. 343.305(9)(a)1.

¶24 A driver may request a refusal hearing on the revocation.8 WIS.
STAT. 343.305(9)(a)4. At a refusal hearing, the contested issues are limited to
“the State proving (a) that the officer had probable cause to believe that the driver
was driving or operating a motor vehicle ‘under the influence’; (b) that the officer
complied with reading the Informing the Accused form …; and (c) that the driver
refused to permit the blood test.” See Blackman, 377 Wis. 2d 339, ¶44;
§ 343.305(9)(a)5.

¶25 In Blackman, our state supreme court explained that WIS. STAT.
§ 343.305(3)(ar)2. differs from the language in the Informing the Accused form
found in § 343.305(4). Blackman, 377 Wis. 2d 339, ¶38.

The form states 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.” The statute states only that if a driver refuses to
take any test under § 343.305(3)(ar)2. the driver may be
arrested. The form, therefore, does not comport with
§ 343.305(3)(ar)2.

Blackman, 377 Wis. 2d 339, ¶38. Thus, the court stated, the proper advice to a
driver under § 343.305(3)(ar)2. who is not suspected of driving under the influence
of alcohol is that his or her operating privilege will be revoked if he or she fails to
request a refusal hearing. Blackman, 377 Wis. 2d 339, ¶38. This phrasing is

8
“If no request for a hearing is received” within the statutorily provided deadline, “the
revocation … commences.” WIS. STAT. § 343.305(9)(a)4.

11
No. 2023AP169-CR

necessary because any “driver who [is] not suspected of a drunk-driving offense
would prevail at a refusal hearing and his [or her] operating privilege would not be
revoked.” Id., ¶5 (citing § 343.305(9)(a)5.a.).

¶26 As applied to the facts in that case, our state supreme court
concluded that the officer incorrectly informed Blackman, under WIS. STAT.
§ 343.305(3)(ar)2., “who was not suspected of a drunk-driving offense,” that “his
operating privilege would be revoked if he refused to submit to a blood draw.”
Blackman, 377 Wis. 2d 339, ¶5. More specifically, the State could not prove that
law enforcement had “probable cause to believe that Blackman was driving or
operating a motor vehicle while under the influence of alcohol.” Id., ¶44. Thus,
“Blackman’s operating privilege would not have been revoked at the refusal
hearing.” Id. The court went on to conclude that the officer’s actions in that case,
including his misstatement of the law by reading the Informing the Accused form,
rendered the defendant’s consent to a blood draw involuntary.9 Id., ¶¶63-66.

¶27 Turning back to the facts of this case, it is clear that Lieutenant
Benbenek acted under WIS. STAT. § 343.305(3)(ar)2. because Gore was involved
in an accident that caused the death of his passenger. Benbenek and Officer
Gaszak believed that Gore had violated a state law; specifically, they believed he
had committed homicide by intoxicated use of a vehicle. It is also clear that Gore
was never formally arrested prior to the blood draw, so § 343.305(3)(a) does not
immediately apply.

9
WISCONSIN STAT. §§ 343.305(4) and 343.305(9) have not been amended since the
Blackman decision.

12
No. 2023AP169-CR

¶28 The next question becomes whether Lieutenant Benbenek correctly
informed Gore: “If you refuse to take any test that this agency requests, your
operating privilege will be revoked and you will be subject to other penalties.”
See WIS. STAT. § 343.305(4) (emphasis added). The State argues that Blackman
does not require suppression of the blood draw in this case because officers had
probable cause to believe that Gore was driving or operating a motor vehicle while
under the influence of alcohol.10 Conversely, Gore contends that Blackman is
directly on point because he had not been arrested for an OWI-related offense
prior to a blood draw request under § 343.305(3)(a). Gore also argues that officers
did not have the requisite probable cause to arrest him for an OWI-related offense.

¶29 We agree with the State that the holding in 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. While § 343.305(3)(ar)2. “does not provide that if the driver
refuses to take a test, the driver’s operating privilege will be revoked,”

10
In Blackman, the State made a similar argument, asserting that the Informing the
Accused form accurately informed Blackman of the consequences of refusing to give a blood
sample because “revocation is ultimately available under [WIS. STAT.] § 343.305(3)(ar)2. through
§§ 343.305(3)(a) and 343.305(9)(a).” Blackman, 377 Wis. 2d 339, ¶35. The State further
suggested in Blackman that

if the driver refuses a test under [§] 343.305(3)(ar)2., … the
officer can arrest the driver. On arrest, the driver comes under
§ 343.305(3)(a), and the officer can request the driver to submit
to a blood test under [§] 343.305(3)(a). If the driver refuses to
submit to a blood test under § 343.305(3)(a), the officer may
issue a notice of intent to revoke the person’s operating
privilege. [Sec.] 343.305(9)(a).

Blackman, 377 Wis. 2d 339, ¶46. Ultimately, the court never directly addressed the State’s
argument because it was undisputed that law enforcement did not have probable cause under
§ 343.305(9)(a)5. See Blackman, 377 Wis. 2d 339, ¶¶48-51.

13
No. 2023AP169-CR

Blackman, 377 Wis. 2d 339, ¶33, that statute permits an officer to arrest the driver
under § 343.305(3)(a) if the driver refuses a test. If a driver refuses a test under
§ 343.305(3)(ar)2., is arrested under § 343.305(3)(a), and requests a refusal
hearing, the State must prove “that the officer had probable cause to believe that
the driver was driving or operating a motor vehicle ‘under the influence.’” See
Blackman, 377 Wis. 2d 339, ¶44; § 343.305(9)(a)5. Where the officer has
probable cause, his or her statement to a driver that the driver’s operating privilege
will be revoked if he or she refuses a test under § 343.305(3)(ar)2. is accurate.

¶30 Gore contends that this interpretation of WIS. STAT. § 343.305
“would lead to absurd results.” Gore states that our interpretation would mean that
“whenever a defendant raise[s] a Blackman challenge, the State c[an] always fall
back on the argument” that “[t]he Blackman remedy doesn’t attach here because
the officer already had probable cause.” “It is a well-settled proposition that
statutory language be read in context and in a reasonable manner so as ‘to avoid
absurd or unreasonable results.’” State v. Matthews, 2019 WI App 44, ¶17, 388
Wis. 2d 335, 933 N.W.2d 152 (citation omitted). “It is not enough for a court to
find that upon application of the plain meaning of a statute, a given outcome is
foolish.” Id. (citation omitted). Rather, “a court so finding must be convinced that
the result is so absurd that [the legislature], not the court, could not have intended
such a result.” Id. (alteration in original; citation omitted).

¶31 We disagree with Gore that our interpretation of WIS. STAT.
§ 343.305 produces absurd results. Pursuant to the purpose behind the implied
consent law—to “remove drunk drivers from the road,” see Prado, 397 Wis. 2d
719, ¶20—it is not “unthinkable” for the legislature to permit the revocation of a
driver’s operating privilege upon a refusal under § 343.305(3)(ar)2. if probable

14
No. 2023AP169-CR

cause existed to believe the driver was operating a motor vehicle while under the
influence of alcohol. See Matthews, 388 Wis. 2d 335, ¶17.

¶32 Gore further argues that his consent was involuntary in that the
officers “concealed” the underlying reasons for a blood draw request under WIS.
STAT. § 343.305(3) as no one told him that they were suspicious that he had driven
under the influence or that he was going to be arrested for OWI. He also argues
Lieutenant Benbenek’s statement to Gore that he would seek a warrant if Gore
refused to provide his consent for the blood draw rendered his consent
involuntary. In support of these arguments, Gore cites State v. Munroe, 2001 WI
App 104, ¶¶11-12, 244 Wis. 2d 1, 630 N.W.2d 223, in which this court held that
officers’ falsely expressed motive for asking to enter a defendant’s hotel room
rendered the defendant’s consent involuntary. More specifically, two armed
officers told the defendant that they wanted to enter his hotel room “to check his
identification” pursuant to a local ordinance. Id., ¶11. In reality, however, the
officers “were on a drug, gun, and prostitution interdiction.” Id. Once the
defendant identified himself, officers asked him if they could “search his room for
anything illegal.” Id., ¶5. After initially refusing, the defendant eventually
permitted the officers to search the room. Id.

¶33 We held that once the officers finished checking the defendant’s
identification, “their ‘license’ granted by [the defendant’s] acquiescence to their
presence in his room vanished, because the lawfulness of an officer’s actions turns

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No. 2023AP169-CR

on the officer’s role or function at the time.”11 Id., ¶11. “Their continued
questioning and their renewed request to search made [the defendant’s] ‘consent’
not voluntary.” Id.

¶34 According to Gore, “[d]isguising the fact that officers had probable
cause to arrest Mr. Gore is akin to the officers [in Munroe] disguising the[ir]
‘hotel interdiction’ purpose.” The issue here, however, has nothing to do with the
reason for the blood draw request, but is ultimately whether Gore was misadvised
about the consequences of a refused blood draw. As explained above, Gore was
not misadvised under WIS. STAT. § 343.305. Gore cites no authority dictating that
an officer must state his or her underlying reason for requesting a blood draw. In
other words, there is no authority for the proposition that that an officer must
inform a driver that he or she believes the driver is intoxicated, see
§ 343.305(3)(a), or that the officer believes the driver was involved in a car
accident that caused the death of another person and that the driver violated a state
or local traffic law, see § 343.305(3)(ar)2.

¶35 Further, the facts in this case are unlike those presented in Munroe.
Lieutenant Benbenek correctly informed Gore that he was seeking his consent for
a blood draw, and, importantly, Benbenek did not state that he would definitively
obtain a warrant if Gore did not consent. Rather, Benbenek stated that he would
seek to obtain a warrant. Such a statement does not invalidate consent,

11
In State v. Munroe, 2001 WI App 104, ¶6, 244 Wis. 2d 1, 630 N.W.2d 223, the
defendant testified that officers informed him that if he did not allow them to search the hotel
room, “they would bring over a drug-sniffing dog.” One of the officers who testified at the
suppression hearing denied that fact. Id. The circuit court “indicated that it believed the officer
but that it also believed that it was not important whether the officers threatened to bring over a
drug-sniffing dog or not.” Id. Contrary to Gore’s assertion on appeal, the Munroe court did not
address the importance of this fact to the consent question.

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No. 2023AP169-CR

particularly where “the expressed intention to obtain a warrant is genuine.” See
State v. Artic, 2010 WI 83, ¶41, 327 Wis. 2d 392, 786 N.W.2d 430 (citation
omitted); 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 8.2(c) (6th ed. 2024) (stating that generally “[c]onsents
given in response to a threat to seek a warrant have been upheld as voluntary”).
Even so, as we describe later in detail, the officers in this case had probable cause
to obtain a search warrant. Cf. Artic, 327 Wis. 2d 392, ¶42 n.7 (stating that an
officer’s “threat to obtain a search warrant is likely to be held to invalidate a
subsequent consent if there were not then grounds upon which a warrant could
issue” but that such a threat is “likely not to affect the validity of the consent if the
police then had probable cause upon which a warrant could issue” (citation
omitted)).

¶36 In addition, unlike WIS. STAT. § 343.305(3)(a), an officer is under no
duty to arrest a driver under § 343.305(3)(ar)2. prior to reading him or her the
Informing the Accused form. Likewise, the fact that Lieutenant Benbenek could
have proceeded under § 343.305(3)(a)—specifically, under the intoxicated driver
provision stating that subsec. (2) applies “[u]pon arrest of a person for violation
of” an OWI-related offense—did not prevent Benbenek from proceeding under
§ 343.305(3)(ar)2., which did not require an arrest prior to implementing
subsec. (2). The fact that Gore was never formally arrested under the second
clause in § 343.305(3)(a)—stating that subsec. (2) applies “upon arrest subsequent
to a refusal under par. (ar)”—is similarly immaterial to the facts of this case.
Indeed, Benbenek would not have had the authority to arrest Gore under that

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No. 2023AP169-CR

clause at the time he read the Informing the Accused form because Gore had not
refused to provide a blood draw.12

¶37 Therefore, if probable cause existed to arrest Gore, then Lieutenant
Benbenek made an accurate statement to Gore that if he refused a blood draw, his
operating privilege would be revoked. The probable cause test “is not a high bar.”
District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (citation omitted). “It
‘requires only a probability or substantial chance of criminal activity, not an actual
showing of such activity.’” Id. (citation omitted). “Probable cause is a ‘flexible,
common-sense measure of the plausibility of particular conclusions about human
behavior.’” State v. Lange, 2009 WI 49, ¶20, 317 Wis. 2d 383, 766 N.W.2d 551
(citation omitted). “The question of probable cause must be assessed on a
case-by-case basis, looking at the totality of the circumstances.” Id.

¶38 More specifically,

[p]robable cause to arrest for operating while under the
influence of an intoxicant refers to that quantum of
evidence within the arresting officer’s knowledge at the
time of the arrest that would lead a reasonable law
enforcement officer to believe that the defendant was
operating a motor vehicle while under the influence of an
intoxicant.

Id., ¶19. In addition, “[t]he police force is considered as a unit and where there is
police-channel communication to the arresting officer and he [or she] acts in good
faith thereon, the arrest is based on probable cause when such facts exist within

12
We note that the better practice in this situation would have been to arrest Gore under
WIS. STAT. § 343.305(3)(a) and then read him the Informing the Accused form.

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No. 2023AP169-CR

the police department.” State v. Mabra, 61 Wis. 2d 613, 625-26, 213 N.W.2d 545
(1974).

¶39 Probable cause plainly existed to arrest Gore for OWI. We begin by
noting that Lieutenant Benbenek and Officer Gaszak reasonably believed that
Gore was the driver of the crashed vehicle. The EMTs from the scene of the crash
informed both Benbenek and Gaszak that they believed Gore was the driver.
Gaszak also reached this conclusion based on the fact that Gore was not ejected
from the vehicle and the driver’s seat belt appeared to have been used during the
crash. Further, Gore was the registered owner of the vehicle.

¶40 In addition, Gore was in a serious one-vehicle accident on part of a
road that was, according to Officer Gaszak, relatively straight and
“hardly … curve[d] at all.” See State v. Kasian, 207 Wis. 2d 611, 622, 558
N.W.2d 687 (Ct. App. 1996) (concluding an officer had probable cause that a
driver had operated a motor vehicle while intoxicated based, in part, on the fact
that the officer “came upon the scene of a one-vehicle accident”). The time of the
crash, shortly after 9:00 p.m., is also noteworthy. “While this is not as significant
as when poor driving takes place at or around ‘bar time,’ it does lend some further
credence to [law enforcement’s] suspicion that [Gore] was driving while
intoxicated.” See State v. Post, 2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634.
It is also significant that weather was not a factor in the crash and the roadway was
dry. “Thus traffic and road conditions do not explain [Gore’s] driving.” See
Lange, 317 Wis. 2d 383, ¶29.

¶41 Furthermore, Officer Gaszak smelled alcohol coming from Gore,
and Gore informed both Lieutenant Benbenek and the EMTs that he had been
consuming intoxicants. Gore also told Benbenek that he had not eaten that day,

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No. 2023AP169-CR

which is significant given Benbenek’s understanding surrounding the effect of
drinking alcohol on an empty stomach.

CONCLUSION

¶42 In sum, this case is factually and legally distinguishable from
Blackman. Law enforcement suspected that Gore was operating a vehicle that
was involved in an accident that caused the death of another person. See WIS.
STAT. § 343.305(3)(ar)2. Law enforcement also had probable cause to believe that
Gore was operating a motor vehicle while under the influence of alcohol. On this
basis, Lieutenant Benbenek’s reading of the Informing the Accused form was an
accurate description of what would occur under § 343.305(3)(a) and (9)(a)5. if
Gore refused a blood draw under § 343.305(3)(ar)2. Likewise, Benbenek’s
statement that he would seek to obtain a search warrant was not unconstitutionally
coercive. We therefore affirm Gore’s judgment of conviction.

By the Court.—Judgment affirmed.

Recommended for publication in the official reports.

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