REVIEW of a decision of the Court of Appeals. Reversed.
¶1 JON P. WILCOX, J. The State appeals from a
published court of appeals decision, State v. Faust, 2003 WI App 243,
267 Wis. 2d 783, 672 N.W.2d 97, which affirmed an order of the
Sheboygan County Circuit Court, Gary J. Langhoff, Judge, granting the
defendant's motion to suppress the results of a forced blood draw taken from
him that indicated he was operating a motor vehicle with a prohibited alcohol
concentration.
I. ISSUE
¶2 The issue presented is whether, under the Fourth Amendment to the
United States Constitution and Article I, Section 11 of the Wisconsin
Constitution, exigent circumstances exist for a nonconsensual warrantless blood
draw after the police have obtained what the arresting officer believes to be a
voluntary, satisfactory, and useable chemical breath test indicating that the
individual arrested was operating a motor vehicle with a prohibited level of
alcohol concentration.
¶3 For the reasons discussed below, we reaffirm that the rapid
dissipation of alcohol in the bloodstream of an individual arrested for a drunk
driving related offense constitutes an exigency that justifies the warrantless
nonconsensual test of that individual's blood, so long as the test satisfies
the four factors enumerated in State v. Bohling, 173
Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993). We hold that the presence of one
presumptively valid chemical sample of the defendant's breath does not
extinguish the exigent circumstances justifying a warrantless blood draw. The nature of the evidence sought——that is,
the rapid dissipation of alcohol from the bloodstream——not the existence of
other evidence, determines the exigency.
Because exigent circumstances were present in this case and the blood
test satisfied the test we set forth in Bohling, we reverse the decision
of the court of appeals.
II. FACTUAL BACKGROUND
¶4 The operative facts of this case are undisputed. On February 19, 2002, Officer James Olsen of
the Sheboygan Police Department was on routine patrol and was inspecting the
license plates of vehicles parked behind a local tavern. Upon checking the plates of a 1998 Chevrolet
coupe, Officer Olsen discovered that the plates were registered to an Audi
coupe. A short time thereafter, Officer
Olsen observed the vehicle leave the parking lot. Officer Olsen initiated a routine traffic stop, and the driver of
the vehicle, the defendant, identified himself as one Jacob J. Faust. Officer Olsen noticed a "strong odor of
intoxicants" emanating from the vehicle and observed that Faust was
slurring his speech and exhibited bloodshot, glassy eyes. Upon questioning, Faust indicated to Officer
Olsen that he had consumed "five brandies" before driving.
¶5 Officer Olsen thereafter administered a field sobriety test that
Faust failed to successfully complete.
Faust then voluntarily submitted to a preliminary breath test under
Wis. Stat. § 343.303 (2001-02),
the result of which indicated Faust possessed an alcohol concentration of 0.13. Officer Olsen placed Faust under arrest and
transported him to police headquarters.
Upon arriving, Faust consented to provide a sample of his breath for
chemical analysis. The results of the
breathalyzer indicated that Faust possessed an alcohol concentration of 0.09
grams of alcohol per 210 liters of breath.
Officer Olsen then performed a search of Faust's criminal driving
record, the result of which indicated that Faust had two prior convictions for
operating a motor vehicle while intoxicated.
As an individual with two or more prior convictions for operating a
motorized vehicle while intoxicated, Faust was subject to the prohibited
alcohol concentration of 0.08.
Wis. Stat. § 885.235(1g)(cd).
¶6 Officer Olsen then requested that Faust provide a blood
sample. After Officer Olsen read Faust
the Informing the Accused form,
Faust refused to submit to the blood test without giving any reason. Officer Olsen then issued a Notice of Intent
to Revoke Faust's license for refusing the blood test. Faust was transported to the hospital where,
following routine procedures, a phlebotomist administered the blood test. The result from the blood test indicated
that Faust possessed a blood alcohol concentration of 0.1 grams of alcohol per
100 milliliters of blood. Officer Olsen
did not request a drug analysis of Faust's blood sample. It is undisputed that Officer Olsen at no
time sought a warrant for the blood test.
III. PROCEDURAL POSTURE
¶7 On March 7, 2002, the State filed a criminal complaint against
Faust, alleging violations of
Wis. Stat. § 346.63(1)(a)(operating while intoxicated) and
Wis. Stat. § 346.63(1)(b)(operating with a prohibited alcohol
concentration). On October 15, 2002,
Faust filed a motion to suppress the results of the blood test, arguing that
the warrantless test was taken in violation of the United States and Wisconsin
Constitutions because exigent circumstances did not exist due to the fact that
the arresting officer already had obtained what he believed to be a voluntary
and sufficient breath test that indicated Faust's level of intoxication was in
excess of the legal limit. At the
motion hearing, Officer Olsen indicated that while it was not department
procedure to request a blood test in all drunken driving cases, he sought a
blood test for the purpose of gathering additional evidence because the
previous two tests were very near the legal limit. Officer Olsen also testified that at the time the breathalyzer
was administered, he believed it to be a voluntary and satisfactory test. The circuit court granted Faust's motion to
suppress on February 25, 2003, concluding that "exigent circumstances did
not exist to justify the warrantless taking of the Defendants blood."
¶8 The court of appeals, based on our decision in State v.
Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385,
affirmed the order of the circuit court.
Faust, 267 Wis. 2d 783, ¶1. In Krajewski, this court held:
a warrantless nonconsensual blood draw from a person
arrested on probable cause for a drunk driving offense is constitutional based
on the exigent circumstances exception to the warrant requirement of the Fourth
Amendment, even if the person offers to submit to a chemical test other than
the blood test chosen by law enforcement, provided that the blood draw complies
with the factors enumerated in Bohling.
Krajewski, 255
Wis. 2d 98, ¶3. However, we
also stated in Krajewski that "[t]he exigency that exists because
of dissipating alcohol does not disappear until a satisfactory, useable
chemical test has been taken." Id.,
¶40. The court of appeals concluded
that this sentence from Krajewski compelled the conclusion that
"once an individual arrested on probable cause for OWI has provided a
satisfactory and useable chemical test, the exigent circumstances justifying a
warrantless and nonconsensual blood draw no longer exist." Faust, 267 Wis. 2d 783,
¶1. In a concurring opinion, Judge Neal
P. Nettesheim stated that although he felt bound by this sentence from Krajewski,
the remainder of the analysis in Krajewski contradicted this isolated
passage. Faust, 267
Wis. 2d 783, ¶¶18-21 (Nettesheim, J. concurring).
IV. STANDARD OF REVIEW
¶9 There are no genuine issues of material fact for the purposes of
this appeal. Whether a nonconsensual
warrantless blood draw taken to obtain evidence of a driver's blood alcohol
concentration following an arrest falls within the exigent circumstances
exception to the warrant requirement of the state and federal constitutions is
a question of law that this court reviews de novo. Krajewski, 255 Wis. 2d 98, ¶17.
V. ANALYSIS
A. Exigent Circumstances
¶10 We begin our analysis by reiterating some basic constitutional
principles applicable to the case at bar.
Both Article I, Section 11 of the Wisconsin Constitution and the Fourth
Amendment of the United States Constitution "guarantee citizens the right
to be free from "'unreasonable searches.'" Bohling, 173 Wis. 2d at 536. A "compelled intrusion[] into the body
for blood to be analyzed for alcohol content" constitutes a search under
the Fourth Amendment. Schmerber v.
California, 384 U.S. 757, 767-68 (1966).
¶11 Subject to a few well-delineated exceptions, warrantless searches
are deemed per se unreasonable under the Fourth Amendment. Bohling, 173 Wis. 2d at 536
(quoting State v. Murdock, 155 Wis. 2d 217, 227, 455
N.W.2d 618 (1990)). It is clear
that "[a] governmental search based on 'exigent circumstances,' like a
search incident to an arrest, is a well-established exception to the warrant
requirement." Id. at
537. Exigent circumstances are present
so as to justify a search in the absence of a warrant where there is a threat
that "evidence will be lost or destroyed if time is taken to obtain a
warrant." Id. at
537-38.
¶12 The test for whether exigent circumstances are present is an
objective one, id. at 538, and inquires into whether the officer
"might reasonably have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under the circumstances,
threatened 'the destruction of evidence[.]'" Schmerber, 384 U.S. at 770 (quoting Preston v. United
States, 376 U.S. 364, 367 (1964)).
In Schmerber, the United States Supreme Court established that
the rapid metabolization and dissipation of alcohol from the bloodstream of an
individual arrested for a drunk driving related offense qualifies as an exigent
circumstance justifying the attempt to secure evidence of intoxication without
first securing a warrant. Id. at
770-71.
¶13 Faust asks us to conclude that once the police have obtained what
they believe at the time to be a voluntary, satisfactory, and useable chemical
sample of the level of the defendant's intoxication, the exigency supporting a
warrantless blood draw disappears.
Faust's argument relies primarily upon one sentence from our decision in
Krajewski, where we stated that "[t]he exigency that exists because
of dissipating alcohol does not disappear until a satisfactory, useable
chemical test has been taken." Krajewski,
255 Wis. 2d 98, ¶40.
¶14 In contrast, the State argues that the exigent circumstances
exception to the warrant requirement of the Fourth Amendment is premised on the
danger that evidence will be destroyed rather than whether the police already
possess evidence of a criminal violation.
The State contends that simply because the police already have collected
what they believe to be a valid chemical sample establishing the defendant's
level of intoxication does not remove the exigency. In other words, the State asserts that the circumstances giving
rise to the exigency in the first instance——the rapid dissipation of alcohol
from the bloodstream——are still present, regardless of whether the police have
other evidence of intoxication.
¶15 We agree with the State and Judge Nettesheim's concurrence that to
read the isolated passage from Krajewski upon which Faust relies as
providing that exigent circumstances cease to exist in all cases when the
police have already obtained a supposedly valid chemical test would be
inconsistent with the nature of the exigency as illustrated in Bohling
and Krajewski.
¶16 In Bohling, this court explained that Schmerber could
be interpreted in one of two ways:
(a) that the rapid dissipation of alcohol in the
bloodstream alone constitutes a sufficient exigency for a warrantless blood
draw to obtain evidence of intoxication following a lawful arrest for a drunk
driving related violation or crime——as opposed to taking a blood sample for
other reasons, such as to determine blood type; or (b) that the rapid
dissipation of alcohol in the bloodstream, coupled with an accident,
hospitalization, and the lapse of two hours until arrest, constitute exigent
circumstances for such a blood draw.
Bohling, 173
Wis. 2d at 539. We determined
that the more reasonable interpretation of Schmerber was the former
one: that exigent circumstances exist
"based solely on the fact that alcohol rapidly dissipates in the
bloodstream." Id. at 539. In other words, we determined in Bohling
that Schmerber stands for the proposition that the fact that alcohol
rapidly dissipates in the bloodstream justifies an officer's belief that he is
faced with "an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threaten[s] 'the destruction of
evidence[.]'" Schmerber,
384 U.S. at 770 (citation omitted).
¶17 In addition, we noted that the United States Supreme Court has
recognized that "in the context of a warrantless blood
draw, . . . the Fourth Amendment warrant requirement is
relaxed when the activity at issue constitutes a serious risk to public
safety. Because of the public safety
risk, persons engaging in such activities have a reduced expectation of privacy." Bohling, 173 Wis. 2d at 540
(citing Skinner v. Ry. Labor Executives Ass'n, 489 U.S. 602, 627
(1989)). We went on to explain the
serious public safety concerns involved when a driver chooses to drive under
the influence and that such concerns reduce a driver's expectation of privacy. Id. at 541. We explained that our interpretation of Schmerber
"strikes a favorable balance between an individual's right to be free from
unreasonable searches and Wisconsin's interest in enforcing its drunk driving
laws. Wisconsin's interest is vital
whereas the resulting intrusion on individual privacy is minimal." Id. at 545.
¶18 Therefore, we concluded that exigent circumstances exist based
solely on the rapid dissipation of alcohol from a person's bloodstream, such
that a warrantless blood sample could lawfully be taken under the following
circumstances:
(1) the blood draw is taken to obtain evidence of
intoxication from a person lawfully arrested for a drunk-driving related
violation or crime, (2) there is a clear indication that the blood draw will
produce evidence of intoxication, (3) the method used to take the blood sample
is a reasonable one and performed in a reasonable manner, and (4) the arrestee
presents no reasonable objection to the blood draw.
Bohling, 173
Wis. 2d at 533-34.
¶19 In Krajewski, we determined that the exigency justifying a
warrantless blood draw——the fact that evidence is likely to be destroyed——does
not disappear "as soon as a person agrees to submit to a breath test as
opposed to a blood test." Krajewski,
255 Wis. 2d 98, ¶36. Focusing
on the destructibility of the evidence, we reasoned that "[t]he
exigency upon which a warrantless blood draw is premised is the dissipation of
alcohol in the blood stream. An
arrested person's offer to submit to one chemical test rather than another does
not slow this dissipation. The evidence
remains on a course to be destroyed."
Id., ¶37 (emphasis added)(citations omitted).
¶20 Further, we noted that "[e]ven when a person submits to a
breath test in lieu of a blood test——outside the provisions of the implied
consent statute——the test may be subject to challenge on grounds that the
person's consent to the test was not given freely and voluntarily." Id., ¶41 (emphasis added). Ultimately, we reaffirmed the four-factor
test set forth in Bohling and held that "a person's agreement to
submit to a test of the person's choice does not negate the exigency, nor
render unconstitutional a nonconsensual test of the officer's
choice." Id. ¶63. We concluded:
[T]he rapid dissipation of alcohol in the
bloodstream creates an exigency that justifies a nonconsensual test of the
blood, breath, or urine of a person arrested for driving while intoxicated or
other similar drunk-driving related offenses, so long as the test is
administered pursuant to the factors enumerated in Bohling.
Id. (emphasis added).
¶21 The trouble with Faust's argument and both dissents is that they
ignore the nature of the exigency that justifies a warrantless blood draw as
described in Bohling and Krajewski. This court in Bohling and Krajewski clearly stated
that the exigency justifying a warrantless blood draw is the rapid
metabolization and dissipation of alcohol from the bloodstream. The reasoning of Krajewski——which
focused on the rapid dissipation of alcohol from the blood stream——is
inconsistent with the conclusion that the exigency disappears as soon as the
police have obtained what they at the time believe to be a valid chemical
breath sample.
¶22 The fact that the police have obtained a presumably valid chemical
sample of the defendant's breath indicating the defendant's level of
intoxication does not change the fact that the alcohol continues to dissipate
from the defendant's bloodstream. The
evidence sought "remains on a course to be destroyed." Krajewski, 255 Wis. 2d 98,
¶37. In Krajewski, we
specifically rejected the contention that "the exigency exception to the
warrant requirement . . . turn[s] upon the means
used for executing the search rather than the urgency involved in the steady
dissipation of alcohol." Id.,
¶42 (emphasis in original). We also
intimated that the exigency remained "[e]ven when a person submits to a breath
test in lieu of a blood test" because the suspect could later challenge
the test on the grounds that he did not freely and voluntarily consent to the
test. Id., ¶41.
¶23 Thus, we conclude, based on the rationale of Bohling and Krajewski,
that the presence of one presumptively valid chemical sample of the defendant's
breath does not extinguish the exigent circumstances justifying a warrantless
blood draw. "[T]he relevant basis
for exigency here is that evidence is likely to be destroyed." Krajewski, 255 Wis. 2d 98,
¶36. Regardless of whether the police
had obtained a breath sample from Faust, the evidence of intoxication revealed
by the blood test was on a course towards destruction. The nature of the evidence sought, not the
existence of other evidence, determines the exigency. We have found no authority that stands for the proposition that
the police are limited to obtaining only a single piece of evidence under the
exigent circumstances doctrine.
¶24 In addition to being consistent with the nature of the exigency as
described in Bohling and Krajewski, our conclusion comports with
the underlying objective test for determining whether exigent circumstances
exist. As noted supra, the test
for whether exigent circumstances are present is an objective one and inquires
into whether the officer "might reasonably have believed that he was
confronted with an emergency, in which the delay necessary to obtain a warrant,
under the circumstances, threatened 'the destruction of evidence[.]'" Schmerber, 384 U.S. at 770 (quoting Preston,
376 U.S. at 367). Here, despite the
presence of one presumptively voluntary and valid breath test, Officer Olsen
might have reasonably believed that it was necessary to secure additional
evidence of Faust's level of intoxication without a warrant in order to prevent
needed evidence from being destroyed.
¶25 First, we recognize the police do not know when they administer a
breath test whether the result of that test is valid and useable. In his concurrence, Judge Nettesheim
indicated that appellate courts routinely hear a stream of challenges involving
breath tests. Faust, 267
Wis. 2d 783, ¶23 n.3. As
Judge Nettesheim stated:
[M]y concern is that the police do not have a crystal
ball in these situations, a proposition which the Krajewski decision
seems to recognize. While the police
here presumably believed that they had obtained a valid breath test, this does
not guarantee, in the very words of Krajewski, a satisfactory and
useable breath test. That
determination would depend on a future ruling by the trial court in the event
that Faust should challenge the breath test.
Id., ¶22 (emphasis in
original). Indeed, at oral argument
counsel for Faust indicated that he planned to challenge the accuracy of the
chemical breath test, due to medication that Faust was allegedly taking at the
time of arrest.
¶26 Second, police often need to acquire additional, more definitive
evidence of intoxication where the results of a chemical analysis of a breath
sample are close to the legal limit.
Here, the preliminary breath test indicated that Faust possessed an
alcohol concentration of 0.13. Chemical
analysis of the breath sample provided at police headquarters indicated an
alcohol concentration of 0.09. While a
search of Faust's criminal driving record indicated that he had two drunk
driving related offenses and was thus subject to a prohibited alcohol content
of 0.08, the police do not know in advance whether any of these prior
convictions will ultimately be admitted into court. See Faust, 267 Wis. 2d 783, ¶23
(Nettesheim, J., concurring)(collecting cases where the defendant challenged
alleged prior convictions). Had Faust
ultimately successfully challenged one or both of his prior
convictions——something the police had no way of knowing at the time the breath
test was taken——the State would have had to prove that Faust operated his motor
vehicle with an alcohol concentration of at least 0.1. See
Wis. Stat. § 885.235(1g)(c).
However, preliminary breath tests are not admissible at trial to prove
the defendant's level of intoxication; they are only admissible at the probable
cause hearing.
Wis. Stat. § 343.303.
Thus, the State would have been left with the results of the
breathalyzer, which indicated that Faust possessed an alcohol concentration of
only 0.09.
¶27 Third, even if the suspect has apparently complied with the implied
consent statute and provided an initial chemical sample, there may later be an
issue as to whether the defendant actually consented to take the test. State v. Rydeski, 214
Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997)("[A]
verbal refusal is not required. The
conduct of the accused may serve as the basis for a refusal."). Likewise, there is no guarantee that the
defendant will not argue at trial that the police coerced his or her consent to
a test through use of the implied consent law or failed to properly administer
the warning in Wis. Stat. § 343.305(4). Also, if a suspect consents to a blood test
outside the parameters of the implied consent statute, there may later be an
issue as to whether his consent was freely given. Krajewski, 255 Wis. 2d 98, ¶41. Therefore, the
fact that the police had obtained a single presumptively valid breath sample
from Faust did not remove the need to gather evidence of intoxication in light
of "the urgency involved in the steady dissipation of alcohol." Krajewski, 255 Wis. 2d 98,
¶42. The threat remained that "evidence
[would] be lost or destroyed if time [were] taken to obtain a
warrant." Bohling, 173
Wis. 2d at 538.
¶28 Furthermore, we note the practical consequences that would ensue if
we were to accept Faust's position that the exigency evaporates once the police
have secured a single breath test that the officer believes to be voluntary and
useable. First, as we explained in Krajewski,
under Wisconsin's implied consent statute, § 343.305, "[a] person who
operates a motor vehicle in this state is deemed to have given consent to
one or more tests of his or her blood, breath, or urine upon the request of
a law enforcement officer if the person is arrested for a drunk driving
offense." Krajewski, 255
Wis. 2d 98, ¶19 (emphasis added). If we were to accept Faust's position, then
when an individual arrested for drunk driving consents to the initial breath
test and refuses all subsequent tests, the police would be compelled to obtain
a warrant to conduct any additional test.
As a result, "the arrested person would dictate the terms of
investigation, limiting the police to a single option for a blood test——a
search warrant." Id., ¶42.
¶29 Second, as we noted in Krajewski, "[b]lood samples are
the most direct means of measuring alcohol concentration in the
blood . . . ."
Id., ¶40. However,
obtaining a warrant to authorize a blood draw may take some time and may often
be impracticable. Id., ¶42 n.19. Police would be forced to choose between
obtaining the most direct and accurate evidence of intoxication and taking the
risk this evidence would be destroyed, or procuring the most easily
ascertainable evidence of intoxication, knowing that it is often subject to
challenge in court. Thus, such a result
would impair the legitimate evidence gathering objectives of the police because
the level of blood alcohol would continue to dissipate until the person is
transported to a hospital and blood is actually drawn. See id., ¶38. Yet, as the United States Supreme Court recognized
in Skinner, "[t]he government's interest in dispensing with the
warrant requirement is at its strongest when, as here, 'the burden of obtaining
a warrant is likely to frustrate the governmental purpose behind the
search.'" Skinner, 489 U.S. at 623 (quoting Camara v. San
Francisco Mun. Ct., 387 U.S. 523, 533 (1967)).
¶30 Ironically, Faust's position might also subject Wisconsin drivers
to a greater number of blood tests.
Because the police would be required to obtain a warrant to perform a
nonconsensual blood test after a driver had consented to a breath test, police
departments might routinely make a blood test the first test for which they ask
under the implied consent statute so as to be able to gather the most direct
evidence of a driver's level of intoxication without fear of the evidence being
destroyed. Those stopped for an
alcohol-related driving offense would be routinely subject to a blood test as a
first test, a procedure far more time-consuming and intrusive than a simple
chemical breath test. Skinner,
489 U.S. at 625-26.
B. Reasonableness
¶31 Although we have concluded that the nature of the evidence sought,
not the existence of other evidence, determines the exigency, our holding does
not mean that the police have carte blanche to take an unlimited number
of tests as long as alcohol continues to dissipate from the bloodstream. We need not today determine the outer
boundaries of the exigent circumstances exception to the warrant requirement
and draw a bright line in order to answer questions such as whether the police
may constitutionally take multiple blood tests or a combination of chemical
breath samples, urine tests, and blood tests all without a warrant, for these
are not the facts before us. As
explained in Krajewski, "[e]xigency relieves the state of the
burden of obtaining a warrant before a search.
It does not relieve the state of establishing, in a hearing after the
search, that it met the requirements for a constitutional search without a
warrant, including the requirement of reasonableness." Krajewski, 255 Wis. 2d 98,
¶44. Thus, the mere presence of exigent
circumstances is insufficient for a warrantless blood draw to pass
constitutional muster; the search must also meet the test for reasonableness
that we articulated in Bohling. Krajewski,
255 Wis. 2d 98, ¶¶45, 63; Bohling, 173 Wis. 2d at
533-34. Faust concedes that the test here satisfied
the requirements set forth in Bohling.
¶32 As the United States Supreme Court has stated, "[t]he
touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250
(1991). "Reasonableness"
pervades the test we set forth for evaluating the constitutionality of
warrantless blood draws in Bohling.
Bohling, 173 Wis. 2d at 533-34. There may well be circumstances where the
police have obtained sufficient evidence of the defendant's level of
intoxication that a further test would be unreasonable under the circumstances
presented.
¶33 However, such are not the facts presented today. Here, the police obtained a chemical breath
sample, the testing of which indicted that Faust possessed an alcohol
concentration of 0.09. As noted supra,
while the police were made aware after this test was performed that Faust had
incurred two previous alcohol-related driving convictions, they could not know
whether one or both of these convictions would ultimately be admitted at
trial. If either of them were
ultimately determined to be inadmissible, the State would be required to prove
that Faust was operating his vehicle with an alcohol concentration of 0.1 or
higher. See
Wis. Stat. § 885.235(1g)(c).
The preliminary breath test that indicated Faust possessed an alcohol
concentration of 0.13 would not have been admissible for this purpose. Wis. Stat. § 343.303. Additionally, the police had no way of
knowing at the time the test was administered whether the chemical analysis of
Faust's breath sample would be useable at trial. Given the strong state interest in removing drunk drivers from
Wisconsin's roadways (especially reoffending drunk drivers), Faust's two
apparent drunk driving related convictions, and the results of the initial
chemical breath test, we cannot say that requiring Faust to submit to a single
warrantless blood draw was unreasonable.
VI. CONCLUSION
¶34 In sum, we reaffirm that the rapid dissipation of alcohol in the
bloodstream of an individual arrested for a drunk driving related offense
constitutes an exigency that justifies the warrantless nonconsensual test of
that individual's blood, breath, or urine, so long as the test satisfies the
four factors enumerated in Bohling.
The presence of one presumptively valid chemical sample of the
defendant's breath does not extinguish the exigent circumstances justifying a
warrantless blood draw. The nature of
the evidence sought——that is, the rapid dissipation of alcohol from the
bloodstream——not the existence of other evidence, determines the exigency. Because exigent circumstances were present
in this case and the blood test satisfied the test we set forth in Bohling,
we reverse the decision of the court of appeals.
By the Court.—The decision of the court of
appeals is reversed.
¶35 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree with the circuit court that the
results of the forced blood test should be suppressed. The blood test was taken without consent,
without a search warrant and without exigent circumstances.
¶36 Exigent circumstances did not exist, the circuit court ruled,
because the arresting officer had already obtained what he believed to be a
voluntary and sufficient breath test that demonstrated that Faust's BAC was in
excess of the legal limit. The circuit
court postulated that "the problem could have been obviated by [the law
enforcement officer] purely requesting blood as the primary test."
¶37 The circuit court got the case right. It followed this court's decision in State v. Krajewski,
2002 WI 97, ¶40, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied,
537 U.S. 1089 (2002): "The
exigency that exists because of dissipating alcohol does not disappear until a
satisfactory, useable chemical test has been taken."
¶38 Law enforcement officers have a choice of which of several chemical
tests to administer. As we explained in
Krajewski, we must presume that the legislature had good reasons for
giving law enforcement officers a choice among chemical tests. Each test has different attributes. Krajewski made it clear that the
choice was the officer's, not the accused's.
The chemical test the officer chose in the present case was, according
to the officer's own testimony, a satisfactory, useable chemical test.
¶39 Adhering to the Krajewski case decided and published a mere
two years ago, I conclude that, without consent, without a search warrant, and
without exigent circumstances, the forced blood test in the present case
violated the United States Constitution.
¶40 The Fourth Amendment provides: "The right of the people to be
secure in their persons, houses, papers, and effects against unreasonable
searches and seizures, shall not be violated". The crux of the Fourth Amendment is
reasonableness.
¶41 "The United States Supreme Court has consistently held that
warrantless searches are per se unreasonable under the Fourth Amendment,
subject to a few carefully delineated exceptions." The majority relies upon the exigency
exception to justify the warrantless search in the present case, and its
reasoning is broader than the exception.
¶42 The majority erroneously holds that the nature of the evidence
alone determines whether exigent circumstances exist. The majority declares without any legal
support at all, and contrary to our own Krajewski decision, that
"[t]he nature of the evidence sought, not the existence of other evidence,
determines the exigency."
¶43 The accepted principle of law is that exigent circumstances are
determined by examining the totality of the circumstances.
The test for exigent circumstances
upon review is whether a police officer under the circumstances known to the
officer at the time "might reasonably have believed that he was confronted
with an emergency, in which the delay necessary to obtain a warrant, under the
circumstances, threatened the 'destruction of evidence.'"
¶44 Evidence of alcohol in the body is destroyed by the passage of
time, without any act of the individual involved or of law enforcement. All evidence of intoxication cannot be
gathered and preserved. Here evidence
of intoxication has been preserved in the form of the result of a valid breathalyzer
test. Evidence of intoxication that is
being destroyed in the present case is cumulative of evidence already collected
and preserved. The State offered no
proof of exigent circumstances except for continuing dissipation of alcohol.
¶45 The majority's argument is essentially that because law enforcement
officers do not know what will happen at trial (and no one does, of course), it
was reasonable for them to take as many valid tests of the suspect's blood
alcohol as they thought necessary to sustain a conviction. The
majority also is concerned that a defendant may exercise his or her
constitutional rights and challenge prior convictions or the validity of the
results of a chemical test.
¶46 This court understood and responded to these problems in Krajewski. The Krajewski court held that law
enforcement officers may choose to give the chemical test they think
appropriate under the circumstances.
¶47 Furthermore, the legislature apparently enables law enforcement
officers to take more than one chemical test by request. Under the implied consent law, if the
suspect refuses to submit to a chemical test, the police may take possession of
the person's driver's license and prepare a notice of intent to revoke the
person's operating privilege. Therefore, the state's interest in keeping
drunk drivers off the road appears to be met, even if a warrantless blood draw
is prevented by the Fourth Amendment.
¶48 Although the majority concedes that law enforcement officers do not
have carte blanche to take an unlimited number of tests as long as alcohol
continues to dissipate in the bloodstream, it refuses to define the outer
limits of how many tests are reasonable.
The majority opinion falls back to the reasonableness test, citing the
four-part reasonableness test of Bohling.
¶49 Bohling is not applicable to determine exigent circumstances
in the present case when more than one test was administered. The first and second of the four Bohling
factors amount to justification for arrest for drunk driving. The third factor relates to the setting
under which blood is drawn. The fourth
factor relates to exigent circumstances.
But, according to the majority opinion, dissipation of alcohol creates
exigent circumstances. So no
reasonableness test is offered by the majority. The internal inconsistencies in the majority opinion are apparent
and troubling.
¶50 By failing to define the outer limits of what is reasonable in a
blood draw case, the majority opinion opens the door to more litigation. The majority opinion also leaves law
enforcement officers, litigants, circuit courts, and the court of appeals in a
quandary, without guidance regarding what number of tests is reasonable.
¶51 Because the breathalyzer test was sufficient to preserve evidence
of Faust's intoxication until trial, no exigent circumstances existed to take
blood without consent or a search warrant.
That alcohol naturally dissipates in the blood ordinarily creates an
exigent circumstance. It does not,
however, create an exigent circumstance under the facts of this case.
¶52 For the reasons set forth, I dissent.
¶53 I am authorized to state that Justices ANN WALSH BRADLEY and DAVID
T. PROSSER, JR. join this dissent.
¶54 DAVID T. PROSSER, J. (dissenting). The majority opinion is well intentioned. None of the members of the court is
unconcerned about the continuing carnage from intoxicated drivers,
or the continuing prevalence of impaired driving on Wisconsin roadways. These legitimate concerns underlay our
decisions in State v. Bohling, 173 Wis. 2d 529, 494
N.W.2d 399 (1993), and State v. Krajewski, 2002 WI 97, 255
Wis. 2d 98, 648 N.W.2d 385.
¶55 The problem in this case is that the arresting officer was not
satisfied with a voluntary, satisfactory, and useable chemical breath test from
the defendant. He wanted a second test
as backup. No reason was given for this
second "search" of the defendant except the desire to gather additional
evidence in the event it was needed.
The circuit court later suppressed the product of this second search
without a warrant on grounds that "exigent circumstances did not exist to
justify the warrantless taking of Defendant's blood."
¶56 In order to justify a second warrantless taking, we are forced to
redefine "exigency" to the point that it becomes meaningless.
I
¶57 The American Heritage Dictionary of the English Language
defines "exigent" as an adjective that means "Requiring
immediate action or remedy." The
American Heritage Dictionary of the English Language 642 (3d ed.
1992). An "exigency" is
defined as a "pressing or urgent situation." Id.
"Exigencies are "urgent requirements; pressing
needs." Id. It is easy enough to explain a second search
for breath, blood, or urine if one focuses narrowly on the fact that alcohol is
dissipating in the blood stream at the time the search is undertaken. It is not so easy to justify a second search
for backup evidence if one attempts to justify that search as an urgent
requirement.
¶58 "Exigency" first appeared in Fourth Amendment
jurisprudence in McDonald v. United States, 335 U.S. 451, 455-56
(1948). In that case, the Court
suppressed evidence obtained when police intruded into the home of a suspected
"numbers" operator. The
officers, who had the defendant under surveillance for two months, entered by
open window to arrest the suspect because the police heard an adding machine
typically used in numbers operations.
Justice Douglas, writing for the majority, reflected on the importance
of the Fourth Amendment:
We are not dealing with formalities. The presence of a search warrant serves a
high function. Absent some grave
emergency, the Fourth Amendment has interposed a magistrate between the
citizen and the police. This was done
not to shield criminals nor to make the home a safe haven for illegal
activities. It was done so that an
objective mind might weigh the need to invade that privacy in order to enforce
the law. The right of privacy was
deemed too precious to entrust to the discretion of those whose job is the
detection of crime and the arrest of criminals. Power is a heady thing; and
history shows that the police acting on their own cannot be trusted. And so the Constitution requires a
magistrate to pass on the desires of the police before they violate the privacy
of the home. We cannot be true to that
constitutional requirement and excuse the absence of a search warrant without a
showing by those who seek exemption from the constitutional mandate that the exigencies
of the situation made that course imperative.
Id. (emphasis added).
¶59 McDonald followed a line of cases that included Johnson
v. United States, 333 U.S. 10 (1948).
In Johnson, the Court explained the justification for one of the
exceptions to the warrant requirement but it did not use the term
"exigency." Instead it used
the term "exceptional circumstances." Id. at 14-15. The
Court addressed the search of a hotel room where, based on the smell of opium
in the hallway, officers believed that narcotics activity would be found. The Court held that the officers could have,
and therefore should have, obtained a warrant.
There are exceptional circumstances in which, on
balancing the need for effective law enforcement against the right of privacy,
it may be contended that a magistrate's warrant for search may be dispensed
with. But this is not such a case. No reason is offered for not obtaining a search
warrant except the inconvenience to the officers and some slight delay
necessary to prepare papers and present evidence to a magistrate. There are never very convincing reasons and,
in these circumstances, certainly are not enough to bypass the constitutional
requirement. No suspect was fleeing or
likely to take flight. The search was
of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or
destruction, except perhaps the fumes which we suppose in time would
disappear. But they were not capable at
any time of being reduced to possession for presentation to court.
Id. at 14-15 (emphasis
added).
¶60 Three years later, in United States v. Jeffers, 342 U.S. 48
(1951), the Court was again presented with a warrantless hotel room
search. The defendant in Jeffers
attempted to bribe the hotel detective with $500 to let the defendant into a
room occupied by his two aunts so that the defendant could retrieve something
he had "stashed" in the room.
The hotel detective asked that the defendant call back later, and in the
meantime phoned the police. The police
investigated and tried knocking on the hotel room door, and, when nobody
answered, the police had an employee let them into the hotel room. After a thorough search, they discovered
narcotics in the room's closet. The
Court found the search violated the Fourth Amendment and suppressed the
evidence of the narcotics. The Court
reviewed the principles of the Fourth Amendment and, in doing so, cited Johnson
for the proposition that warrantless searches may be proper in
"exceptional circumstances." Id.
at 51. The Court cited McDonald
for the proposition that the Government bears the burden of demonstrating that
an exception to the warrant requirement may be justified, id., but the
Court did not mention "exigency" in any manner.
¶61 The landmark decision in Schmerber v. California, 384 U.S. 757
(1966), is an important link in this line of cases, but it also did not use the
terms "exigent" or "exigency." The relevant discussion instead used the term
"emergency."
The officer in the present
case, however, might reasonably have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under the circumstances,
threatened "the destruction of evidence," Preston v. United States,
376 U.S. 364, 367. We are told that the
percentage of alcohol in the blood begins to diminish shortly after drinking
stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where
time had to be taken to bring the accused to a hospital and to investigate the
scene of the accident, there was no time to seek out a magistrate and secure a
warrant. Given these special facts, we
conclude that the attempt to secure evidence of blood-alcohol content in this
case was an appropriate incident to petitioner's arrest.
Id. at 770-71 (emphasis
added).
¶62 Over the years, the Wisconsin Supreme Court and the United States
Supreme Court have characterized Schmerber as representing the
"exigent circumstances" exception to the warrant requirement. See Winston v. Lee, 470 U.S.
753, 759 (1985); United States v. Dionisio, 410 U.S. 1, 8-9 (1973); State
v. Bohling, 173 Wis.2d 529, 538, 494 N.W.2d 399 (1993).
II
¶63 In the present case, the police obtained satisfactory, useable
evidence. Nothing threatened the
destruction of that evidence. The only
thing "threatened" was the destruction of additional evidence of the
same character.
¶64 As a former prosecutor, I repeatedly represented to juries that
machines to measure the alcohol content of breath were scientific and
reliable. Consequently, it is hard to
embrace the proposition that an "exigency" of constitutional stature
exists to obtain backup evidence from samples of blood or urine. If that were correct, it would seem as
though an exigency exists in every case in which blood is not drawn. Such an exigency is a built-in rationale for
extended detention and additional tests potentially amounting to harassment.
¶65 If the officer in this case had offered any compelling
explanation for why a second test was "needed" as opposed to
"desired," I would probably not be writing this dissent. But on the facts presented, I cannot
conclude that the second warrantless search of the defendant was entitled to
march with other recognized "exigencies" in our law. The result in this case untethers the
"exigent circumstances" exception to the warrant requirement from the
premises supporting the exception. I
join the opinion of the Chief Justice and respectfully dissent.
¶66 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON
and Justice ANN WALSH BRADLEY join this dissent.