County of Trempealeau v. Layne Perry Stenberg

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 21, 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. 2024AP281 Cir. Ct. No. 2022TR1219

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE REFUSAL OF LAYNE PERRY STENBERG:

COUNTY OF TREMPEALEAU,

PLAINTIFF-RESPONDENT,

V.

LAYNE PERRY STENBERG,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Trempealeau County:
RIAN W. RADTKE, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.
No. 2024AP281

¶1 HRUZ, J.1 Layne Perry Stenberg appeals an order finding that he
unreasonably refused to consent to a blood draw when requested to do so by a law
enforcement officer, contrary to WIS. STAT. § 343.305(9)(a). Stenberg argues that
§ 343.305(2), Wisconsin’s implied consent law, is unconstitutional, both facially
and as applied to him. In particular, Stenberg argues that the implied consent law
violates the unconstitutional conditions doctrine by requiring him to “forfeit” his
Fourth Amendment right to be free from unreasonable searches for the privilege of
operating a motor vehicle on a public highway.

¶2 Stenberg also argues that the implied consent law violates the least
intrusive means test under the Fourth Amendment. According to Stenberg, there
exist less intrusive means than a blood test by which the government can obtain
the evidence it seeks, which the State must use in order to protect his right to be
free from unreasonable searches.

¶3 We conclude that Stenberg has failed to meet his burden of proving,
beyond a reasonable doubt, that WIS. STAT. § 343.305(2) is unconstitutional.
Binding case law is clear that “[t]here is no constitutional issue” with an implied
consent statute that “imposes only ‘civil penalties,’ such as revoking a person’s
operating privileges, for refusing a warrantless blood draw.” See State v. Forrett,
2022 WI 37, ¶8 n.5, 401 Wis. 2d 678, 974 N.W.2d 422 (quoting Birchfield v.
North Dakota, 579 U.S. 438, 476-77 (2016)). We further conclude that the
implied consent statute does not operate more intrusively than is reasonably
necessary. Accordingly, we affirm the circuit court’s order.

1
This appeal was converted from a one-judge appeal to a three-judge appeal under WIS.
STAT. § 752.31(3) and WIS. STAT. RULE 809.41(1) (2023-24). All references to the Wisconsin
Statutes are to the 2023-24 version.

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No. 2024AP281

BACKGROUND

¶4 On July 9, 2022, at 10:20 p.m., Trempealeau County Sheriff’s
Deputy Osmani Cruz observed a vehicle operating on County Road C without any
tail lamps illuminated. After Cruz began initiating a traffic stop, he observed the
vehicle cross the road’s center line. Cruz also noted that the vehicle took “an
extremely long period of time to come to a complete stop,” which Cruz believed to
be an indication that the driver was “potentially intoxicated.”

¶5 Upon approaching the vehicle, Deputy Cruz identified the driver as
Stenberg. While speaking to Stenberg, Cruz observed that Stenberg smelled of
intoxicants, observed that Stenberg’s eyes were glassy and bloodshot, and heard
Stenberg slurring his words. Cruz also observed a short glass, “consistent with
glasses often found in taverns,” on the front passenger seat containing ice and
liquid. Stenberg denied drinking alcohol.

¶6 Deputy Cruz asked Stenberg to step outside of the vehicle and to
perform several standardized field sobriety tests (SFSTs). After observing
multiple clues indicating that Stenberg was intoxicated during Stenberg’s
performance of the SFSTs, Cruz concluded that Stenberg was under the influence
of intoxicants and requested that he take a preliminary breath test (PBT). Stenberg
complied and registered a 0.109 on the PBT. Cruz then took Stenberg into
custody, searched his vehicle incident to the arrest, and found open bottles of rum
inside the vehicle.

¶7 While Stenberg was in the back seat of Deputy Cruz’s vehicle, Cruz
read to Stenberg the Informing the Accused form, including language stating that
Stenberg was deemed to have given his implied consent to a seizure of his blood,
breath, or urine by virtue of his decision to operate a motor vehicle on Wisconsin

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roadways. After being read the form, Stenberg stated that he would not submit to
an evidentiary chemical test of his blood. Cruz then drove Stenberg to a nearby
hospital, began applying for a search warrant to obtain a sample of Stenberg’s
blood, and provided Stenberg with a notice of intent to revoke his operating
privilege. Cruz obtained the warrant, and a blood sample was drawn from
Stenberg. A test of Stenberg’s blood sample yielded a blood alcohol concentration
above the prohibited limit.

¶8 Stenberg was charged with operating a motor vehicle with a
prohibited alcohol concentration (PAC), contrary to WIS. STAT. § 346.63(1)(b) and
as a third offense, and with operating a motor vehicle while intoxicated (OWI),
contrary to § 346.63(1)(a) and as a third offense. He also received a citation for
refusing to take a test for intoxication after arrest, pursuant to WIS. STAT.
§ 343.305(9)(a). Stenberg filed a request for a refusal hearing, as well as a motion
to declare § 343.305 unconstitutional and to dismiss the PAC charge. Stenberg
contended that § 343.305 was unconstitutional, both facially and as applied to him,
because it “require[d] an individual to exchange the exercise of a constitutional
right for the privilege of operating a motor vehicle on a public highway.” The
State filed a response to Stenberg’s motion, arguing that “there is a
well-established precedent that confirms the statute’s validity.”

¶9 The circuit court entered an order denying Stenberg’s motion to
declare WIS. STAT. § 343.305 facially unconstitutional but granting his motion to
declare § 343.305 unconstitutional as applied to him.2 The court reasoned that the

2
Stenberg and the circuit court broadly discuss the constitutionality of WIS. STAT.
§ 343.305. However, both Stenberg’s and the court’s statements appear to pertain specifically to
§ 343.305(2) rather than the entirety of § 343.305.

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length of the civil penalty Stenberg would suffer for refusing a blood draw—i.e.,
the revocation of his operating privilege—was longer than the revocation he
would suffer upon his conviction for driving drunk had he not refused. The court
dismissed Stenberg’s citation for refusing to take a test for intoxication after arrest,
but it denied Stenberg’s motion to dismiss the PAC charge.3

¶10 The State filed a motion for reconsideration, arguing that under
Wisconsin and federal law, an implied consent law that imposes only civil
penalties for refusing a blood draw is constitutional and does not violate the
unconstitutional conditions doctrine. Stenberg filed a response brief, arguing that
the State failed to meet its burden on the legal standards for granting a motion for
reconsideration and contending that his case was distinguishable from those cited
by the State.

¶11 The circuit court granted the State’s motion, reversed its order
declaring WIS. STAT. § 343.305(2) unconstitutional as applied to Stenberg, and
concluded that § 343.305(2) did not violate the unconstitutional conditions
doctrine and, therefore, was constitutional. The court ordered Stenberg’s license
revoked for a period of one year, that he undergo an alcohol and drug assessment,
and that he install an ignition interlock device in any vehicle he operated for a
period of one year. Stenberg now appeals.

DISCUSSION

¶12 Stenberg argues that WIS. STAT. § 343.305(2), Wisconsin’s implied
consent law, is unconstitutional, both facially and as applied to him, under the

3
The circuit court did not address the OWI charge in its order.

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No. 2024AP281

“unconstitutional conditions doctrine.” Stenberg also argues that § 343.305(2) is
unconstitutional because it fails to meet the least intrusive means test found within
Fourth Amendment jurisprudence.4

¶13 “The constitutionality of a statute is a question of law that we review
de novo.” State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63.
Legislative enactments are generally entitled to a presumption of constitutionality.
State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665 N.W.2d 328. A petitioner
seeking to prove a statute unconstitutional faces a “heavy burden” of proving that
the statute is unconstitutional beyond a reasonable doubt. Id. “If any doubt
remains, this court must uphold the statute as constitutional.” Id.

¶14 To prove that a statute is facially unconstitutional, the petitioner
“must show that the law cannot be enforced ‘under any circumstances.’” Wood,
323 Wis. 2d 321, ¶13 (citation omitted). In an as-applied challenge, we consider
the facts of the particular case in front of us, and the petitioner “must show that his
or her constitutional rights were actually violated.” Id.

¶15 The unconstitutional conditions doctrine was set forth in Frost v.
Railroad Commission of State of California, 271 U.S. 583, 593-94 (1926), where
the United States Supreme Court held,

It is not necessary to challenge the proposition that, as a
general rule, the state, having power to deny a privilege
altogether, may grant it upon such conditions as it sees fit
to impose. But the power of the state in that respect is not
unlimited, and one of the limitations is that it may not
impose conditions which require the relinquishment of
constitutional rights.

4
Stenberg does not challenge the circuit court’s denial of his motion to dismiss the PAC
charge.

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No. 2024AP281

¶16 It is undisputed that a person has the constitutional right to be free
from unreasonable searches and seizures, U.S. CONST. amend. IV, that the taking
of a blood sample is a search, Birchfield, 579 U.S. at 456, and that “warrantless
searches are ‘per se unreasonable,’ unless some exception to the Fourth
Amendment’s warrant requirement applies,” Forrett, 401 Wis. 2d 678, ¶6 (citation
omitted).

¶17 WISCONSIN STAT. § 343.305(2) provides,

Any person who … drives or operates a motor vehicle upon
the public highways of this state, or in those areas
enumerated in [WIS. STAT. §] 346.61, is deemed to have
given consent to one or more tests of his or her breath,
blood or urine, for the purpose of determining the presence
or quantity in his or her blood or breath, of alcohol,
controlled substances, controlled substance analogs or other
drugs, or any combination of alcohol, controlled
substances, controlled substance analogs and other drugs,
when requested to do so by a law enforcement officer under
sub. (3)(a) or (am) or when required to do so under
sub. (3)(ar) or (b).

“If 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.” Sec. 343.305(9)(a).

¶18 Stenberg argues that WIS. STAT. § 343.305(2) is unconstitutional
because it requires him to exchange his constitutional right to be free from
unreasonable searches for the privilege of operating a motor vehicle in Wisconsin.
We disagree.

¶19 As the State argues, Wisconsin’s implied consent law simply does
not operate in the manner Stenberg claims it does. Rather, if anyone in
circumstances similar to those in which Stenberg found himself refuses to grant
consent to a requested and informed blood draw, (a) that person will only face

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No. 2024AP281

potential civil penalties for that refusal, and (b) the State will be able to draw the
person’s blood only after obtaining a judicially issued warrant to do so. A person
given the choice of whether to consent to a blood draw never sacrifices his or her
right to be free from an unreasonable search or seizure. Cf. Blackburn v. Snow,
771 F.2d 556, 568 (1st Cir. 1985) (holding that a correctional institution’s
conditioning of a person’s ability to visit inmates on his or her submission to a
strip search was invalid because it required someone wanting to visit an inmate to
sacrifice his or her “right to be free of an otherwise unreasonable … search”).
Upon Stenberg’s refusal, the State was required to obtain a search warrant to have
Stenberg’s blood drawn and tested or to obtain the blood sample pursuant to an
exception to the warrant requirement. See State v. Tullberg, 2014 WI 134, ¶31,
359 Wis. 2d 421, 857 N.W.2d 120 (applying the exigent circumstances exception
to the Fourth Amendment). A validly issued warrant satisfies the Fourth
Amendment prohibition against unreasonable searches so long as the warrant is
reasonably executed. See State v. Sveum, 2010 WI 92, ¶19, 328 Wis. 2d 369, 787
N.W.2d 317. Stenberg’s arguments regarding the unconstitutionality of the
implied consent law ignore the foregoing and therefore fail.

¶20 To elaborate, in the context of implied consent laws and the
constitutionality of a state imposing consequences on motorists who fail to comply
with those laws, the United States Supreme Court has said,

Our prior opinions have referred approvingly to the general
concept of implied-consent laws that impose civil penalties
and evidentiary consequences on motorists who refuse to
comply. Petitioners do not question the constitutionality of
those laws, and nothing we say here should be read to cast
doubt on them.

It is another matter, however, for a [s]tate not only to
insist upon an intrusive blood test, but also to impose
criminal penalties on the refusal to submit to such a test.
There must be a limit to the consequences to which

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No. 2024AP281

motorists may be deemed to have consented by virtue of a
decision to drive on public roads.

Birchfield, 579 U.S. at 476-77. In an appeal regarding Wisconsin’s OWI criminal
penalty scheme and the impact of counting a prior conviction under WIS. STAT.
§ 343.305(9)(a), our state supreme court analyzed Birchfield and noted that
“[t]here is no constitutional issue, however, when a state imposes only ‘civil
penalties,’ such as revoking a person’s operating privileges, for refusing a
warrantless blood draw.” Forrett, 401 Wis. 2d 678, ¶8 n.5 (quoting Birchfield,
579 U.S. at 476-77).

¶21 Revocation of an individual’s operating privilege is the consequence
for failing to comply with Wisconsin’s implied consent law. See WIS. STAT.
§ 343.305(10)(b). Because this penalty is civil in nature, as opposed to a criminal
penalty, see Forrett, 401 Wis. 2d 678, ¶8 n.5, the implied consent law does not
violate the unconstitutional conditions doctrine.

¶22 Stenberg attempts to distinguish his case from Birchfield. He notes
that Birchfield concerned whether a state could impose criminal penalties for
motorists “who refuse to undergo testing when there is sufficient reason to believe
they are violating the State’s drunk-driving laws.” See Birchfield, 579 U.S. at
444. Here, Stenberg is arguing that “it is not permissible … for the State to offer
an operating privilege only to those persons who are willing to forgo the right to
refuse testing by agreeing to have their exercise of that right penalized—
regardless of whether that sanction is civil or criminal.”

¶23 Stenberg’s attempts to distinguish his case from Birchfield are both
confused and unpersuasive. While Birchfield concerned criminal consequences
for the violation of implied consent laws, it expressly contrasted unconstitutional

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implied consent laws that impose criminal penalties with constitutional implied
consent laws that impose only civil penalties. See id. at 476-77. Indeed, the
U.S. Supreme Court even noted that its “prior opinions have referred approvingly
to the general concept of implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply.” Id. Stenberg does
not address the foregoing. Further, Stenberg does not address our state supreme
court’s statement that “[t]here is no constitutional issue … when a state imposes
only ‘civil penalties’ … for refusing a warrantless blood draw.” Forrett, 401
Wis. 2d 678, ¶8 n.5 (citation omitted).

¶24 There are at least two other problems with Stenberg’s arguments,
both of which are again derived from his mischaracterization of the implied
consent law and the applicable facts. First, WIS. STAT. § 343.305(2) does not
actually require a conscious driver to give his or her blood without consent and in
violation of the Fourth Amendment. See State v. Prado, 2021 WI 64, ¶¶46-47,
397 Wis. 2d 719, 960 N.W.2d 869. Quite simply, if a conscious driver who is read
the Informing the Accused form refuses to give consent to the blood draw, the
police may apply for a warrant. See id., ¶49. Unless there is a constitutional
deficiency with the warrant-issuing process, the warrant itself, or its execution—
none of which Stenberg contends happened in his case—a blood draw conducted
pursuant to a judicial warrant is constitutional. See Birchfield, 579 U.S. at
455-56; U.S. CONST. amend. IV. This scenario is precisely what happened to
Stenberg.

¶25 After the State reasonably and clearly explained the foregoing state
of the law, Stenberg balked that the State “misapprehends” his arguments. That
was hardly the case. Rather than engage with the State’s substantive arguments,

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Stenberg simply rearticulates in his reply brief what he perceives his actual
argument to be, stating:

[T]he issue [Stenberg] presents is not centered about what
later happens between a law enforcement officer and the
accused, but rather, focuses on the exchange which occurs
between the citizen and the State at the time of the
individual’s application for a license—whether the
exchange is constitutional ab initio.

Whatever this means,5 we know it does nothing to make Wisconsin’s implied
consent law unconstitutional, either facially or as applied to Stenberg. At no
time—either when a person seeks or obtains a driver’s license from the
Department of Motor Vehicles or when a suspected drunk driver is asked to give
consent for a blood draw pursuant to the implied consent law—is a person
required to “forgo” a constitutional right or be unreasonably punished for invoking
his or her constitutional right against unreasonable searches.6

5
It appears that Stenberg is claiming that when one submits oneself to Wisconsin’s
implied consent law upon seeking to lawfully operate a motor vehicle in Wisconsin, at that very
moment a constitutional violation has occurred. If so, this position is wrong. As noted in our
analysis, for purposes of unconstitutional conditions, what matters is whether, ultimately, an
individual actually is forced to subject him- or herself to an unreasonable search or seizure in
order to operate a vehicle in this State.
6
The State additionally argues that we should reject Stenberg’s argument on the
unconstitutional conditions doctrine because “[t]his doctrine applies only to statutes that impose a
condition not relevant to the statute’s valid purpose.” In support thereof, the State cites Dolan v.
City of Tigard, 512 U.S. 374, 385 (1994) (“[T]he government may not require a person to give up
a constitutional right—here the right to receive just compensation when property is taken for a
public use—in exchange for a discretionary benefit conferred by the government where the
benefit sought has little or no relationship to the property.”), and Agency for International
Development v. Alliance for Open Society International, Inc., 570 U.S. 205, 225 (2013) (Scalia,
J., dissenting) (“There is no case of ours in which a condition that is relevant to a statute’s valid
purpose and that is not in itself unconstitutional (e.g., a religious-affiliation condition that violates
the Establishment Clause) has been held to violate the doctrine.”).

(continued)

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¶26 Stenberg alternatively argues that Wisconsin’s implied consent law
violates the “least intrusive means test,” both as it generally applies to searches
and seizures subject to the Fourth Amendment and specifically to gathering
evidence of someone’s intoxication. Again, we disagree.

¶27 Under this doctrine, as properly understood, the government is
forbidden from infringing upon a fundamental right “unless the infringement is
narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S.
292, 302 (1993).7 According to Stenberg, and quoting Florida v. Royer, 460 U.S.
491, 500 (1983), “When infringing on a right secured by the Fourth Amendment,

We are dubious of the State’s argument that the unconstitutional conditions doctrine
applies only to statutes that impose a condition not relevant to the statute’s valid purpose. First,
there appears to be a distinction between the unconstitutional conditions doctrine and the Dolan
test. See Sheetz v. County of El Dorado, 601 U.S. 267, 275, 279 (2024) (noting that the Dolan
test is a two-part test “modeled on the unconstitutional conditions doctrine” and distinguishing
between the Dolan test and the unconstitutional conditions doctrine). Indeed, the primary
application of the Dolan test appears to be to the Takings Clause of the Fifth Amendment. See
Dolan, 512 U.S. at 385 (noting that the test is analyzing whether the benefit sought by the
government has a relationship to the property the government is attempting to acquire); Sheetz,
601 U.S. at 279 (applying the Dolan test to legislation pursuant to the Takings Clause). Thus, we
question whether the rule argued by the State applies in the criminal, Fourth Amendment context.

Further, even if we found Justice Scalia’s dissent in Agency for International
Development persuasive, we question the extent to which this statement can be applied. While
Justice Scalia noted that, as of the release of Agency for International Development, there were
no Supreme Court cases concluding that a condition relevant to a statute’s valid purpose and not
itself unconstitutional violated the unconstitutional conditions doctrine, this observation does not
mean that courts could not conclude that a condition relevant to a statute’s valid purpose violated
the unconstitutional conditions doctrine.

The State does not address these concerns in its brief. However, we need not reach a
decision on this issue, as we conclude that Wisconsin’s implied consent law is constitutional
pursuant to Birchfield v. North Dakota, 579 U.S. 438 (2016), and State v. Forrett, 2022 WI 37,
401 Wis. 2d 678, 974 N.W.2d 422. See State v. Heyer, 174 Wis. 2d 164, 170, 496 N.W.2d 779
(Ct. App. 1993) (“An appellate court should dispose of an appeal on the narrowest possible
ground.”). Thus, we do not address the State’s argument in these regards further.
7
Reno concerned “the Fifth and Fourteenth Amendments’ guarantee of ‘due process of
law’” in the context of alien juveniles unaccompanied by adults being arrested and held in
custody pending deportation hearings. Reno v. Flores, 507 U.S. 292, 294, 301 (1993).

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the ‘methods employed should be the least intrusive means reasonably available to
verify or dispel’ the suspicion of wrongdoing for which evidence is sought.”

¶28 Wisconsin’s implied consent law clearly advances the “very
important” purposes of incentivizing drivers to cooperate in voluntary chemical
testing and removing drunk drivers from the state’s highways, both of which
purposes have been approved by both our state and federal supreme courts.
Birchfield, 579 U.S at 466; see also State v. Marshall, 2002 WI App 73, ¶13, 251
Wis. 2d 408, 642 N.W.2d 571 (explaining that “the implied consent statute
provides an incentive for voluntary chemical testing, i.e., not facing civil refusal
procedures and automatic revocation”); State v. Zielke, 137 Wis. 2d 39, 46, 403
N.W.2d 427 (1987) (“[T]he intent of the legislature in passing the implied consent
law was to facilitate the gathering of evidence against drunk drivers in order to
remove them from the state’s highway[s].”). Stenberg provides no argument to
the contrary. Rather, he contends that “the inquiry does not end there because the
prevailing standard which undergirds the infringement of a fundamental right
requires that the government use the ‘least intrusive means’ to accomplish its
end.”8

8
In so arguing, Stenberg cites only to Sell v. United States, 539 U.S. 166 (2003), State v.
Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165, and Winston v. Lee, 470 U.S. 753
(1985).

Sell and Fitzgerald, however, are not Fourth Amendment cases. Rather, they address
whether it is constitutional, under the Fifth Amendment Due Process Clause, to involuntarily
medicate a mentally ill criminal defendant to restore his or her competency to stand trial. In the
course of analyzing that issue, the courts considered only whether “less intrusive” means were
unlikely to achieve substantially the same results, not whether the chosen means were the “least
intrusive.” Sell, 539 U.S. at 179; Fitzgerald, 387 Wis. 2d 384, ¶16.

(continued)

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¶29 Stenberg contends that there are at least three less intrusive means by
which the State could obtain the evidence it needs: (1) obtaining a search warrant;
(2) offering the accused a choice regarding the evidentiary test to which he or she
will submit; or (3) designating breath or urine as the primary tests by which it
seeks evidence of impairment. We are unpersuaded by Stenberg’s assertion that
the implied consent statute unconstitutionally violates any of his liberty interests
by being more intrusive than reasonably necessary.

¶30 The two potentially applicable cases that Stenberg cites in support of
his argument are Royer and Birchfield. Royer applied the least intrusive means
test in the context of whether involuntarily detaining an airport traveler “exceeded
the limited restraint permitted” by Terry v. Ohio, 392 U.S. 1 (1968), at the time his
consent to a search was obtained. Royer, 460 U.S. at 493-95, 500. In discussing
the limitations of a Terry stop, the Court stated that “an investigative detention
must be temporary and last no longer than is necessary to effectuate the purpose of
the stop. Similarly, the investigative methods employed should be the least
intrusive means reasonably available to verify or dispel the officer’s suspicion in a
short period of time.” Royer, 460 U.S. at 500.

¶31 Birchfield, which we have already discussed, concerned whether the
Fourth Amendment permitted warrantless breath tests and warrantless blood tests
as a search conducted incident to a lawful arrest. Birchfield, 579 U.S. at 439-41.

Winston, meanwhile, stated that the Fourth Amendment’s “proper function is to
constrain, not against all intrusions as such, but against intrusions which are not justified in the
circumstances, or which are made in an improper manner.” Winston, 470 U.S. at 760 (citing
Schmerber v. California, 384 U.S. 757, 768 (1966)). In other words, the case merely restated the
well-established issue in such cases, which is whether the means employed were reasonable under
the circumstances, as the Fourth Amendment expressly requires—no more, no less.

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The Court concluded that warrantless breath tests were permitted, but warrantless
blood tests were not. It reasoned that “[b]lood tests are significantly more
intrusive, and their reasonableness must be judged in light of the availability of the
less invasive alternative of a breath test. Respondents have offered no satisfactory
justification for demanding the more intrusive alternative without a warrant.” Id.
at 474.

¶32 Contrary to Stenberg’s assertion, these two cases do not support his
broad argument that obtaining a blood sample pursuant to a search warrant or
merely requesting that a person consent to a blood draw is overly intrusive.
Stenberg fails to address the fact that Royer and Birchfield applied the least
intrusive means test in very limited circumstances. By way of contrast, in United
States v. Sharpe, 470 U.S. 675, 686-87 (1985), the Supreme Court analyzed the
least intrusive means test in the general context of police action during a Terry
stop. The Court stated,

A creative judge engaged in post hoc evaluation of police
conduct can almost always imagine some alternative means
by which the objectives of the police might have been
accomplished. But “[t]he fact that the protection of the
public might, in the abstract, have been accomplished by
‘less intrusive’ means does not, itself, render the search
unreasonable.” The question is not simply whether some
other alternative was available, but whether the police acted
unreasonably in failing to recognize or to pursue it.

Sharpe, 470 U.S. at 686-87 (quoting Cady v. Dombrowski, 413 U.S. 433, 447
(1973)). This holding has been characterized as “caution[ing] against further
unrealistic application of the requirement a la Royer.” 4 WAYNE R. LAFAVE,
SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.2(f)
(6th ed. 2025). Stenberg does not contend—nor could he under applicable
jurisprudence—that law enforcement acted unreasonably by seeking a warrant to

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obtain a blood sample from him. In fact, it is one of the lesser intrusive means he
identifies by which the State could obtain the evidence needed.

¶33 Furthermore, in State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98,
648 N.W.2d 385, our supreme court reviewed a circuit court’s decision granting a
motion to suppress the results of the defendant’s blood test, taken on suspicion of
OWI. Id., ¶¶4-7. Among other issues, the defendant argued that “it was not
reasonable to subject him to an involuntary blood draw when he offered to take a
breath test” and that he “was entitled to take a ‘less intrusive’ test when he offered
to do so.” Id., ¶¶53, 58.

¶34 The supreme court rejected these arguments, concluding that
“[b]lood draws to test for alcohol concentration are so commonplace, so accepted,
so likely to be reasonable in their execution that a person’s mere preference for a
different test cannot be viewed as significant in a constitutional sense.” Id., ¶57.
The court further reasoned that

[t]he intrusion in the usual blood draw is slight and does
not constitute an unreasonable law enforcement practice. It
does not threaten the individual’s safety or health.
Moreover, the [United States] Supreme Court has
“repeatedly refused to declare that only the ‘least intrusive’
search practicable can be reasonable under the Fourth
Amendment.”

Id., ¶60 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995)).

¶35 Similarly, Stenberg also argues that the implied consent statute
violates the least intrusive means test because the State could use the less intrusive
means of offering alternative tests or could designate breath or urine as the

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primary tests by which it seeks evidence of impairment.9 But, again, our supreme
court has already held that the constitution does not require the State to offer “less
intrusive” alternatives to blood tests. See Krajewski, 255 Wis. 2d 98, ¶¶58-60.
Stenberg does not address our supreme court’s prior rejection of this argument,
even after the State noted its applicability in its response brief. See Cook v. Cook,
208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (holding that “[t]he supreme court
is the only state court with the power to overrule, modify or withdraw language
from a previous supreme court case”). Thus, Krajewski controls, and we do not
address further Stenberg’s arguments in this regard.

¶36 One final point should be made. In arguing that there are less
intrusive alternatives to a blood test, Stenberg again misapprehends how the
implied consent statute is applied in Wisconsin. Stenberg contends that, instead of
the implied consent statute, the State “could select the preferred method under the
Fourth Amendment to obtain a blood specimen, and that is by warrant.” But, as
noted above, that is exactly how the implied consent statute works when an officer
requests a blood sample under WIS. STAT. § 343.305(2) and a person refuses. See
Prado, 397 Wis. 2d 719, ¶44 (“In the context of warrantless blood draws, consent
‘deemed’ by statute is not the same as actual consent…. Generally, in determining
whether constitutionally sufficient consent is present, a court will review whether
consent was given in fact by words, gestures, or conduct.”); see also Id., ¶23
(“[T]he implied consent statute gives those who are capable of responding a
choice: submit to the test and risk that the results are presented into court, or refuse

9
We note that PBTs are generally not “admissible in any action or proceeding except to
show probable cause for an arrest … or to prove that a chemical test was properly required or
requested of a person.” WIS. STAT. § 343.303. Stenberg does not address this fact.

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No. 2024AP281

the test and face license revocation and other civil penalties…. ‘[T]he implied
consent law is explicitly designed to allow the driver, and not the police officer, to
make the choice as to whether the driver will give or decline to give actual consent
to a blood draw when put to the choice between consent or automatic sanctions.’”
(quoting State v. Padley, 2014 WI App 65, ¶39, 354 Wis. 2d 545, 849 N.W.2d
867)). Further, this exact procedure was the one that followed after Stenberg
refused to give Deputy Cruz consent to obtain a blood sample—i.e., Cruz sought
and obtained a search warrant, and he then validly obtained a sample of Stenberg’s
blood pursuant to the warrant.

¶37 In sum, and for the foregoing reasons, we conclude that Stenberg has
failed to prove, beyond a reasonable doubt, that Wisconsin’s implied consent
statute is unconstitutional—either facially or as applied to him—under the
unconstitutional conditions doctrine or the least intrusive means test.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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