Background
On May 7, 2021, City of Antigo Police Officer Levi Barske stopped John Paul Fermanich after observing a defective headlamp. Barske observed several signs of intoxication—bloodshot eyes, slurred speech, and an odor of intoxicants—and Fermanich admitted he had been drinking. A preliminary breath test returned a BAC of 0.159, and Fermanich was placed under arrest for operating a motor vehicle while intoxicated (OWI).
Before reading Fermanich the statutorily required Informing the Accused Form (ITAF), Officer Barske told him: “I’m not taking you to jail. You will be able to go home. We will just have to work on a sober driver for you then. So what we do from here I take you to the hospital, get a blood draw, and then I’ll release you.” Barske then read the ITAF, Fermanich asked a few clarifying questions, and said “yeah” when asked for consent. A blood draw at Aspirus Langlade Hospital confirmed his BAC was above the legal limit.
Fermanich moved to suppress the blood test results, arguing that Barske’s pre-ITAF statement had coerced his consent by implying that submitting to the blood draw was a precondition for release. The Langlade County Circuit Court agreed, found the consent involuntary, suppressed the evidence, and dismissed the case. The City of Antigo appealed.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the suppression order. Applying a de novo review of the voluntariness question, the court held that the City failed to meet its burden of demonstrating by clear and convincing evidence that Fermanich’s consent was freely and voluntarily given. Officer Barske’s statement—framing the blood draw as an inevitable step in the process and release as the reward for submitting—implied both that the test was unavoidable and that Fermanich would not be freed unless he complied. Even though the ITAF was read afterward, the court found that the pre-ITAF statement’s coercive framing was not adequately neutralized.
The court rejected the City’s argument that Barske’s statement was non-coercive because it was factually accurate. The controlling inquiry under Wisconsin law is the voluntariness of the defendant’s consent under the totality of the circumstances, not the technical truthfulness of the officer’s words. Critically, Barske’s statement assumed consent would be given and Fermanich was never told that he would still be released if he refused the blood draw—leaving the coercive implication intact. The court also faulted the City for largely ignoring the multi-factor Phillips voluntariness analysis in its briefing, further failing to carry its burden.
Because the City did not establish voluntary consent by clear and convincing evidence, the warrantless blood draw constituted an unlawful search under the Fourth Amendment, and suppression was required.
Key Takeaways
- An officer’s pre-consent statement that frames a blood draw as inevitable and conditions release upon compliance can render subsequent consent involuntary, even if the officer reads the proper statutory advisement form afterward.
- The truthfulness of an officer’s statement is not a dispositive or even primary factor in the consent voluntariness analysis; the test is whether the defendant’s will was overborne under the totality of the circumstances.
- The prosecution bears the burden of proving voluntary consent by clear and convincing evidence; failing to address the Phillips multi-factor framework in briefing can be fatal to that showing.
- A suspect is not obligated to ask clarifying questions after a coercive statement to preserve a suppression argument—the burden remains on the government throughout.
Why It Matters
This decision reinforces that officers must be careful about the framing of their pre-consent communications in OWI stops. Statements that present a blood draw as a foregone conclusion—even when accompanied by a proper statutory advisement—can taint consent if they leave the suspect with no reasonable understanding that refusal is a genuine option. Prosecutors and law enforcement should ensure that any statement made before requesting consent does not, explicitly or implicitly, link the suspect’s release from custody to compliance with the search.
Although the court characterized this as a close case, it emphasized that burden of proof was ultimately decisive. For practitioners, the ruling is a reminder that the government’s obligation to prove voluntariness by clear and convincing evidence is a meaningful standard—one that requires engagement with the full Phillips factor analysis, not merely a conclusory assertion that the officer acted in good faith.