State v. Trevor James Plemon

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.
July 30, 2024
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. 2023AP1029-CR Cir. Ct. No. 2021CF26

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TREVOR JAMES PLEMON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Chippewa County:
BENJAMIN J. LANE, Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Trevor James Plemon appeals a judgment of
conviction, entered following his no-contest plea, for homicide by use of a vehicle
No. 2023AP1029-CR

with a detectable amount of a restricted controlled substance (Delta-9 THC) in the
blood, as a second or subsequent offense. Plemon challenges the circuit court’s
denial of his motion to suppress, arguing that his consent to a blood draw was
involuntary. We reject Plemon’s arguments and affirm.

BACKGROUND

¶2 Plemon hit a pedestrian with his work truck shortly before 6:40 p.m.
on September 16, 2020. The pedestrian died from her injuries later that evening.
At approximately 10:15 on the night of the accident, Plemon consented to a blood
draw. Subsequent testing of his blood sample revealed the presence of both
methamphetamine and Delta-9 THC. The State charged Plemon with homicide by
use of a vehicle with a detectable amount of a restricted controlled substance
(methamphetamine) in the blood and homicide by use of a vehicle with a
detectable amount of a restricted controlled substance (Delta-9 THC) in the blood,
both as second or subsequent offenses. The State also charged Plemon with
possession of THC and possession of drug paraphernalia, based on items that were
found in his belongings following the accident.

¶3 Plemon moved to suppress his blood test results, asserting that “there
was no probable cause on which to extend his detention” and that “consent [for the
blood draw] was not properly given[,] making it a warrantless and impermissible
blood draw.” The circuit court held a hearing on Plemon’s motion, at which
Deputy Jake Sperry and Patrol Sergeant Martin Folczyk of the Chippewa County
Sheriff’s Office testified, and various documents were admitted into evidence.
The following facts are taken from the evidence introduced at the suppression
hearing and from a police report that was entered into evidence at Plemon’s
preliminary hearing, which both parties cite in their appellate briefs. See State v.

2
No. 2023AP1029-CR

Gaines, 197 Wis. 2d 102, 107 n.1, 539 N.W.2d 723 (Ct. App. 1995) (“When
reviewing a suppression order, an appellate court is not limited to examination of
the suppression hearing record. It may also examine … the evidence at the
preliminary hearing.” (citations omitted)).

¶4 Sperry arrived at the crash scene at approximately 6:40 p.m. and saw
Plemon sitting on the back of his truck speaking with emergency services
personnel. Sperry noted that Plemon was “shook up” and was “breathing
heavily.” When Sperry asked Plemon to explain what had happened, Plemon
stated that the pedestrian was in the road when he drove around a curve, that the
sun was in his eyes, and that he slammed on his brakes but could not stop his truck
before hitting her. Sperry asked whether Plemon had any alcohol to drink that
day, and Plemon responded in the negative.

¶5 Dispatch informed law enforcement that there had been two prior
complaints regarding Plemon’s vehicle earlier that day—one at 3:51 p.m. and one
at 4:10 p.m. According to Folczyk, the callers reported “erratic driving behavior
all over the roadway.”

¶6 While speaking with Plemon, Sperry noticed a cell phone in
Plemon’s possession and seized it as evidence. Plemon then consented to a search
of the phone.

¶7 Later, at approximately 7:44 p.m., Sperry asked Plemon whether he
would consent to a blood draw. Plemon refused, stating he was “afraid of
needles.” At that point, Folczyk “explained to Plemon that it was certainly his
right to refuse consent to the blood draw,” but due to the severity of the victim’s
injuries, law enforcement “would explore other avenues and possibly apply for a
search warrant to obtain a blood sample from him.” Folczyk “re-iterated” that he

3
No. 2023AP1029-CR

“was not trying to influence [Plemon’s] decision but [was] simply telling him of
[law enforcement’s] obligations to conduct a thorough and complete
investigation,” and “Plemon stated he understood.”

¶8 Plemon subsequently gave a state trooper consent to search his
belongings, and the trooper located a small container of THC wax and a black
smoking device inside a briefcase in Plemon’s possession. Plemon admitted that
the THC wax and smoking device belonged to him and that he was a daily user of
THC. Plemon claimed, however, that he only smoked after work and had not used
THC since 6:00 or 7:00 p.m. the previous day. Sperry asked Plemon for consent
to search his vehicle, and Plemon gave his consent. Nothing of evidentiary value
was found inside the vehicle.

¶9 Sperry then asked Plemon to provide a written statement, and
Plemon agreed to do so. Plemon began writing the statement while sitting on the
back of his truck, but he then stated that he was cold, so Sperry asked Plemon if he
wanted to sit in Sperry’s warm squad car. Plemon said that he wanted to do so and
completed his statement in the squad car. While Plemon wrote out his statement,
Sperry continued to investigate the crash.

¶10 After Plemon completed his statement, Sperry told Plemon that he
would like to conduct standardized field sobriety tests to determine whether
Plemon was impaired, and Plemon “stated that he was okay with that.” Sperry
told Plemon that he would prefer to conduct the tests at St. Joseph’s Hospital,
rather than on the side of the highway, and Plemon “said that was okay with him.”
Sperry then “placed [Plemon’s] seat belt on him” and transported him to the
hospital.

4
No. 2023AP1029-CR

¶11 At the hospital, staff advised Sperry that he could conduct field
sobriety tests in an enclosed ambulance bay. Sperry subsequently administered
four field sobriety tests in the ambulance bay and observed one out of eight clues
on one test and no clues on the other three tests.

¶12 After the field sobriety testing, Sperry asked Plemon “if he would
like to have a seat in the rear passenger seat of [Sperry’s] patrol vehicle,” and
Plemon “said he would.” Sperry subsequently learned that the victim had died,
and at approximately 10:05 p.m., he placed Plemon under arrest for operating a
motor vehicle while intoxicated (OWI)—causing injury, as a second offense. At
around 10:15 p.m., Sperry read Plemon the “Informing the Accused” form, and
Plemon consented to a blood draw.

¶13 The circuit court denied Plemon’s motion to suppress. The court
found that Plemon consented to sitting in Sperry’s squad car to stay warm while he
wrote his statement and consented to the searches of his possessions and truck.
The court concluded that after law enforcement found the THC wax and smoking
device in Plemon’s belongings, there was probable cause justifying Plemon’s
further detention.

¶14 Next, the circuit court found that Plemon consented to field sobriety
tests and to leaving the accident scene with Sperry to perform those tests. The
court concluded that during Plemon’s transportation to the hospital, Plemon would
not have felt free to leave and had therefore been seized. Nevertheless, the court
concluded that the warrantless seizure was permissible because the officers had
probable cause to believe that Plemon had committed a crime. The court then
found that following his arrest at the hospital, Plemon consented to a blood draw.

5
No. 2023AP1029-CR

Based on Plemon’s consent, the court concluded that no warrant for the blood
draw was required.

¶15 Plemon moved for reconsideration. He argued that because the THC
found in his belongings provided “the reason to continue the investigation,” “[a]ny
consent for a blood draw after [his] seizure would not be valid as it was unrelated
to simple possession of THC.” Plemon further argued that, following his seizure,
law enforcement “had ample time to seek a warrant” but chose not to do so.
According to Plemon, under these circumstances, his consent to the blood draw
was invalid.

¶16 The circuit court denied Plemon’s motion for reconsideration. The
court concluded that the officers had probable cause to arrest Plemon for operating
a motor vehicle with a detectable amount of a restricted controlled substance in his
blood at the time of his transport to the hospital because “when there is evidence
of impaired driving when there are [controlled] substances at issue, … it’s
different than alcohol in that there’s no level that you have to meet in order to be
impaired. You are impaired simply by having information showing … substances
that have been consumed.” The court then found, once again, that Plemon had
consented to a blood draw after he was seized by law enforcement. The court
rejected Plemon’s argument that his consent was invalid, noting that prior to the
blood draw, law enforcement read Plemon the “Informing the Accused” form,
which informed him of his right to refuse the blood draw. The court also found
that the officers had not “pressured” Plemon to change his mind and consent to the
blood draw.

¶17 After the circuit court denied Plemon’s reconsideration motion, the
parties reached a plea agreement. Plemon entered a no-contest plea to the charge

6
No. 2023AP1029-CR

of homicide by use of a vehicle with a detectable amount of a restricted controlled
substance (Delta-9 THC) in the blood, as a second or subsequent offense, and the
remaining three charges were dismissed and read in.1 Plemon now appeals,
arguing that the court erred by denying his suppression motion. See WIS. STAT.
§ 808.03(3)(b) (2021-22) (stating that an order denying a suppression motion may
be reviewed on appeal from a final judgment or order notwithstanding the
defendant’s entry of a guilty or no-contest plea).2 Specifically, Plemon argues that
his consent to the blood draw was not voluntary.

DISCUSSION

¶18 When reviewing a circuit court’s decision on a motion to suppress
evidence, we apply a two-step standard of review. State v. Roberson, 2019 WI
102, ¶66, 389 Wis. 2d 190, 935 N.W.2d 813. “We first review the circuit court’s
findings of historical fact, which we uphold unless they are clearly erroneous.
Next, we independently apply constitutional principles to the facts found, which
presents a question of law.” Id. (citations omitted).

¶19 Both the United States Constitution and the Wisconsin Constitution
protect against “unreasonable searches and seizures.” U.S. CONST. amend. IV;
WIS. CONST. art. I, § 11. A blood draw constitutes a search, and warrantless
searches are per se unreasonable, subject to several clearly delineated exceptions.
State v. Blackman, 2017 WI 77, ¶53, 377 Wis. 2d 339, 898 N.W.2d 774. “One

1
Pursuant to the plea agreement, Plemon also entered a no-contest plea to
second-offense OWI in a separate case. That conviction is not before us in this appeal.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

7
No. 2023AP1029-CR

well-established exception to the warrant requirement is a search conducted
pursuant to consent.” State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786
N.W.2d 430.

¶20 “To determine if the consent exception is satisfied, we review, first,
whether consent was given in fact by words, gestures, or conduct; and, second,
whether the consent given was voluntary.” Id., ¶30. Here, the circuit court
found—and Plemon does not dispute—that Plemon consented in fact to the blood
draw. The disputed issue on appeal is whether Plemon’s consent was voluntary.

¶21 The State bears the burden to prove, by clear and convincing
evidence, that a defendant’s consent to a search was freely and voluntarily given. 3
Id., ¶32. The defendant’s consent must be “an essentially free and unconstrained
choice,” not “the product of duress or coercion, express or implied.” Id. (citations
omitted). The voluntariness of a defendant’s consent presents a mixed question of
fact and law and requires us to consider “the totality of all the surrounding
circumstances.” Id. (citation omitted). The following, nonexclusive factors are
relevant to our analysis:

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant to
persuade [the defendant] to consent; (2) whether the police
threatened or physically intimidated the defendant or

3
The State asserts that “[t]he clear and convincing evidence standard for showing
consent to a search appears to have entered Wisconsin case[ ]law via Kelly v. State, 75 Wis. 2d
303, 316, 249 N.W.2d 800 (1977),” which relied upon cases decided by the United States Court
of Appeals for the Fifth Circuit. The State argues, however, that the United States Supreme Court
has overruled those Fifth Circuit cases. Accordingly, the State asserts that it was required to
prove that Plemon’s consent to the blood draw was voluntary by only a preponderance of the
evidence. We need not address this issue because even applying the higher “clear and convincing
evidence” standard, we conclude that the State met its burden to show that Plemon’s consent was
voluntary.

8
No. 2023AP1029-CR

“punished” [the defendant] 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, intelligence, education,
physical and emotional condition, and prior experience
with the police; and (6) whether the police informed the
defendant that he [or she] could refuse consent.

Id., ¶33.

¶22 Applying these factors in the instant case, we conclude that Plemon
voluntarily consented to the blood draw. First, there is no evidence that law
enforcement used “deception, trickery, or misrepresentation” to obtain Plemon’s
consent. See id.

¶23 In arguing to the contrary, Plemon asserts that the officers were
deceptive because they detained him for several hours but “did not reveal their
suspicions to [him] or explain the situation regarding why they would not let him
leave.” We agree with the State, however, that “anyone in Plemon’s position
would have understood the officers’ suspicions.” Plemon had crashed his vehicle
into a pedestrian, who suffered serious—and ultimately fatal—injuries. Shortly
after arriving on the scene, Sperry asked Plemon whether he had any alcohol to
drink that day. Later on, Sperry asked Plemon to consent to a blood draw. After
Plemon refused, Folczyk explained that, due to the severity of the victim’s
injuries, law enforcement “would explore other avenues and possibly apply for a
search warrant to obtain a blood sample from him.” Law enforcement
subsequently discovered THC and a smoking device in Plemon’s belongings and
questioned him about his THC use. Thereafter, Sperry asked Plemon whether he
would consent to perform field sobriety tests to determine whether he was
impaired. As the State aptly notes, under these circumstances, “anyone in

9
No. 2023AP1029-CR

Plemon’s position would [have understood] that the officers suspected that he had
used an impairing substance before hitting the pedestrian with his truck, and that
they were investigating to determine whether he had done so.”

¶24 Turning to the second Artic factor, there is no evidence that the
officers “threatened or physically intimidated” Plemon or “punished” him “by the
deprivation of something like food or sleep.” See id. Plemon argues that the
officers’ conduct was threatening or intimidating because they “prolong[ed] his
detention in order to wear him down.” He asserts that the officers were with him
from approximately 6:40 p.m. to 10:20 p.m., and if they “had probable cause
immediately after searching [his] belongings, … they could have arrested him
after only a fraction of that time.” Notably, however, Plemon cites no authority
suggesting that the police must arrest a suspect as soon as there is probable cause
to do so, rather than continuing to investigate.

¶25 Plemon also asserts that he “was restrained, [which is] a fact relevant
to the assessment of” the second Artic factor. See State v. Phillips, 218 Wis. 2d
180, 199, 577 N.W.2d 794 (1998). Specifically, Plemon argues that he was seated
in the back of Sperry’s squad car “for some time at the scene,” that he was “put
back in the squad car” after he completed field sobriety testing, that the squad
car’s doors were locked and could not be opened from the inside, and that Sperry
buckled Plemon’s seat belt before transporting him to the hospital, which provides
“further evidence of restraint.”

¶26 We are not persuaded that the degree of restraint in this case
supports a determination that Plemon’s consent to the blood draw was involuntary.
Plemon was not handcuffed at any point before consenting to the blood draw.
Moreover, the circuit court found that Plemon consented to sitting in the squad car

10
No. 2023AP1029-CR

to stay warm while he wrote his statement, and Plemon does not argue that the
court’s finding in that regard was clearly erroneous. In addition, Sperry’s report
states that following the field sobriety tests, Sperry asked Plemon “if he would like
to have a seat in the rear passenger seat of [Sperry’s] patrol vehicle,” and Plemon
“said he would.” Plemon does not dispute that he consented to sitting in the squad
car at that point. Although the squad car’s doors may have been locked and
incapable of being opened from inside the squad car,4 Plemon cites no evidence
showing that he ever asked to exit the squad car and was denied permission to do
so. Furthermore, although Sperry buckled Plemon’s seat belt before driving him
to the hospital, as the State correctly notes, Wisconsin law requires a person to
wear a seat belt while riding in a car. See WIS. STAT. § 347.48(2m)(d). We agree
with the State that “[e]nsuring Plemon’s safety while he was riding in the squad
car after he consented to doing so is not restraint, much less restraint that
somehow rendered his consent to a blood draw involuntary.”

¶27 Plemon also argues that his removal from the accident scene to a
different location is relevant to our analysis of the second Artic factor. See
Phillips, 218 Wis. 2d at 200. He emphasizes that he was “driven more than
19 miles away from the scene (where his vehicle was) at high speeds for more
than 20 minutes.”5 Plemon further argues that the “only reason” to transport him

4
Plemon cites Sperry’s report in support of his claim that the squad car’s doors were
locked and could not be opened from the inside. However, the report does not state whether the
doors were locked or could be opened from inside the vehicle.
5
While Plemon asserts that he was driven to the hospital at “high speeds,” there is no
evidence in the record regarding the speed at which Sperry drove while transporting Plemon to
the hospital. At most, during the suppression hearing, defense counsel showed Sperry a printout
from Google Maps, which showed that the trip from the accident scene to the hospital—primarily
along United States Highway 53—was nineteen miles and would have taken twenty-one minutes.
Sperry agreed that those estimates were “roughly” correct.

(continued)

11
No. 2023AP1029-CR

to the hospital for field sobriety tests, rather than a closer location, “was to
intimidate him into believing police were going to get his blood no matter what
and he therefore needed to consent a blood draw.”

¶28 These arguments ignore the circuit court’s factual findings. The
court found that it was “reasonable” to transport Plemon to a different location to
perform field sobriety tests because the accident “occurred on a 90-degree corner
on a state highway where it was a busy location, apparently, on a curve.” Perhaps
more importantly, the court also found that Plemon consented to leave the accident
scene to perform field sobriety tests.6 Under these circumstances, we do not view

During its oral ruling, the circuit court surmised that Sperry’s vehicle would have been
traveling at fifty-five miles per hour on the way to the hospital. We agree with the State,
however, that it makes “no difference” that Sperry drove to the hospital “at highway speed.”
There is nothing inherently coercive about a police officer driving at a rate of fifty-five miles per
hour on a highway while transporting a suspect to an alternative location, after obtaining the
suspect’s consent to go to that location. And, as the State notes, “if [Sperry] had driven more
slowly, Plemon would have been in the squad car longer.” Plemon’s complaint that Sperry drove
at “high speeds” is therefore inconsistent with his complaint that the officers needlessly
prolonged his detention.
6
In his reply brief, Plemon argues that while he agreed to go to another location to
perform field sobriety tests, he never agreed to go to the hospital. However, Sperry’s report
expressly states:

I informed [Plemon] that I would like to conduct standardized
field sobriety testing on him to determine if he was impaired. He
stated that he was okay with that. I advised him that I would
prefer to go to St. Joseph’s Hospital to do the testing since it was
a better environment than doing it on HWY 64. He said that was
okay with him.

(Emphasis added.) In addition, at the suppression hearing, Sperry testified that Plemon
“consented to going somewhere else” for field sobriety testing, and Sperry told Plemon that they
would be going to “St. Joseph’s Hospital in Chippewa Falls.” The record therefore fails to
support Plemon’s assertion that when Sperry asked him about going somewhere else for field
sobriety testing, Plemon “probably thought [Sperry] meant going to a nearby quiet street or gas
station,” not to the “far away” hospital.

12
No. 2023AP1029-CR

Plemon’s removal from the scene and transportation to the hospital as particularly
threatening or intimidating.

¶29 The third Artic factor requires us to consider “whether the conditions
attending the request to search were congenial, non-threatening, and cooperative,
or the opposite.” Artic, 327 Wis. 2d 392, ¶33. Plemon concedes that, in this case,
there is “no evidence” that law enforcement “made overt threats or were openly
intimidating” to him. He argues, however, that the officers engaged in “implicit”
coercion by “clearly asserting their authority” over him. Specifically, Plemon
notes that the officers: (1) seized his phone, leaving him unable to call anyone;
(2) made it clear that he could not leave; (3) held him for an extended period of
time without “providing information on his custody status”; (4) transported him
from the accident scene to the hospital; (5) asked him to consent to a blood draw a
second time, “even after they knew [he] had refused and was afraid of needles”;
(6) took him to an enclosed ambulance bay for field sobriety testing “where he
was alone with police and out of public view”; and (7) placed him back in the
squad car after the field sobriety tests were completed.

¶30 We do not agree that these circumstances amount to implicit
coercion. First, there is no evidence that Plemon objected when Sperry told
Plemon that he was seizing Plemon’s phone. In fact, Plemon gave Sperry consent
to search the phone. Furthermore, while Plemon asserts that he was unable to call
anyone, Sperry did not seize Plemon’s phone until after Plemon’s girlfriend had
arrived at the accident scene and spoken to Plemon. Thus, Plemon was not
completely isolated, despite Sperry’s seizure of the phone.

¶31 In addition, while Plemon was with law enforcement for
approximately three hours and forty minutes before consenting to the blood draw,

13
No. 2023AP1029-CR

we do not perceive that delay as being inherently coercive under the facts of this
case, especially given the severity of the incident under investigation. Moreover,
while Plemon again complains that he was transported from the accident scene to
the hospital for field sobriety tests, as noted above, he consented to that action.
Additionally, we agree with the State that asking Plemon to consent to a blood
draw a second time—following his arrest and after law enforcement learned that
the victim had died—was not “unfairly threatening.” Rather, it was a reasonable
response by the officers to additional developments in their investigation.

¶32 As for Plemon’s complaint that he was taken to an enclosed
ambulance bay for field sobriety testing, the record shows that Sperry was directed
to that location by hospital staff. Although Plemon asserts that it was “no doubt
intimidating” to be alone with the police and out of public view in the ambulance
bay, he cites no evidence in support of that assertion. It seems equally likely that a
person in Plemon’s position would have preferred to perform field sobriety tests in
private, rather than in a more public location.

¶33 Finally, as discussed above, the record shows that after the field
sobriety tests, Sperry asked Plemon “if he would like to have a seat in the rear
passenger seat of [Sperry’s] patrol vehicle,” and Plemon “said he would.” Again,
we do not view this consensual action by Plemon as evidence of implicit coercion.

¶34 The fourth Artic factor—i.e., how Plemon responded to law
enforcement’s request for consent—also fails to support Plemon’s claim that his
consent was involuntary. See id. It is true that Plemon initially refused to consent
to a blood draw, and our supreme court has stated that “[a]n initial refusal of a
request to search will weigh against a finding of voluntariness.” See id., ¶56.
However, the circuit court expressly found, on reconsideration, that following

14
No. 2023AP1029-CR

Plemon’s initial refusal, the officers did not “pressure[]” him to change his mind
and consent to the blood draw. And, as the State aptly notes, “[I]t is hardly
surprising that Plemon initially refused to give consent to a blood draw when he
had not been arrested and faced no consequences for refusing but gave consent
when he had been arrested and knew that he would lose his operating privilege if
he refused.”7 We therefore agree that, under the circumstances of this case,
Plemon’s initial refusal to consent to a blood draw does not support a
determination that his subsequent consent was involuntary.

¶35 Addressing the fifth Artic factor, Plemon asserts that his personal
characteristics rendered his consent to the blood draw involuntary. See id., ¶33.
In particular, he asserts that he was “in an extremely vulnerable emotional
condition at the time police asked for consent” because he “had just hit and killed
a woman while driving home.” In support of this assertion, Plemon cites Sperry’s
report, which noted that Plemon was “shook up” and “breathing heavily” at the
accident scene. Plemon also notes that he was twenty-four years old at the time of
the accident and had no criminal history, meaning that he was “no doubt extremely
intimidated by his interactions with police.” Plemon also asserts that he was
“unfamiliar with the concept of a search, what was required for one to be
performed legally, and his ability to refuse to consent.”

¶36 We are not persuaded that Plemon’s personal characteristics
rendered his consent to the blood draw involuntary. First, while the record shows
that Plemon was upset at the accident scene, there is no evidence to support

7
Plemon does not attempt to argue that Sperry engaged in improper coercion by reading
Plemon the “Informing the Accused” form and thereby informing him of the civil penalties that
he faced if he refused to consent.

15
No. 2023AP1029-CR

Plemon’s claim that he continued to be in a fragile emotional state when he
consented to a blood draw at the hospital three hours and forty minutes later.

¶37 Second, while Plemon emphasizes that he was only twenty-four
years old at the time of the accident, the record shows that he had completed
twelve years of schooling and had earned a high school equivalency diploma. In
United States v. Mendenhall, 446 U.S. 544, 558 (1980), the United States
Supreme Court concluded that a defendant who was twenty-two years old and had
an eleventh-grade education was “plainly capable of a knowing consent” to a
search.

¶38 Third, although Plemon asserts that he had no criminal history, he
concedes that he was “convicted of OWI-first” prior to the accident in this case.
While first-offense OWI is not a crime in Wisconsin, it appears self-evident that
Plemon would have had contact with law enforcement in connection with that
offense.

¶39 Fourth, while Plemon claims that he did not understand the concept
of a search or his ability to refuse consent, the record suggests otherwise.
Specifically, the fact that Plemon consented to searches of his possessions and
truck, but initially refused to consent to a blood draw, shows that he understood he
could refuse to consent.

¶40 The sixth Artic factor directs us to consider whether law
enforcement informed Plemon that he could refuse to consent. See Artic, 327
Wis. 2d 392, ¶33. The record shows that after Plemon’s initial refusal, Folczyk
informed Plemon that he had a right to refuse to consent to a blood draw. Later
on, Sperry read Plemon the “Informing the Accused” form, which similarly
informed Plemon that he could choose not to consent. Plemon points to no

16
No. 2023AP1029-CR

evidence suggesting that he was incapable of understanding the information that
the officers provided regarding his ability to refuse to consent.

¶41 Plemon emphasizes that although Folczyk told him that he could
refuse to consent to a blood draw, Folczyk also stated that law enforcement
“would explore other avenues and possibly apply for a search warrant to obtain a
blood sample from him.” Plemon asserts that this statement could be “seen as a
form of intimidation—essentially telling [him] that he should do what police were
asking because they would get him anyway.” However, “[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.’” Id., ¶41
(citation omitted). There is nothing in the record to suggest that Folczyk’s
statement about obtaining a warrant was not genuine and was merely a pretext to
obtain Plemon’s consent to a blood draw.

¶42 Having considered all six of the Artic factors, we conclude that the
State met its burden to show that Plemon’s consent was voluntary. Accordingly,
the circuit court properly denied Plemon’s suppression motion, and we affirm
Plemon’s judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

17