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COURT OF APPEALS DECISION DATED AND FILED November 21, 2002 Cornelia G. Clark Clerk of Court of Appeals |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from a judgment of the circuit court for La Crosse County:� ramona A. gonzalez, Judge.� Affirmed.�
�1����������������������� DYKMAN, J.[1]�� Jon Rose appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OMVWI), second offense.� Rose contends the circuit court erred in denying his motions to suppress evidence.� He argues that Wisconsin�s Implied Consent Law, Wis. Stat. � 343.305, violates the Fourth Amendment to the United States Constitution and that the police may not analyze a blood sample seized from an intoxicated driver without obtaining a warrant.[2]� We disagree and therefore affirm.�
�2����������������������� On October 16, 2000, an officer arrested Rose for OMVWI after Rose failed two field sobriety tests and refused to submit to other field tests, proclaiming, �I�m drunk and you�re going to arrest me anyway.�� The officer read the �Informing the Accused� form to Rose in compliance with Wis. Stat. � 343.305(4).� Rose submitted to a blood draw at St. Francis Hospital.�
�3����������������������� Rose raises two issues:� (1) May police draw blood from a driver arrested for OMVWI when a statutory breath test of equal evidentiary value and equally easy admissibility could have been administered instead?� (2) May the police analyze, without first obtaining a warrant, a blood sample drawn from a driver who has been arrested without a warrant for OMVWI?
�4����������������������� Rose first claims the arresting officer had a duty to administer a breathalyzer test in lieu of a blood test.� Rose�s briefs concede that this case is controlled by State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, and mention the then-pending supreme court case of State v. Krajewski.� The supreme court recently decided Krajewski, wherein it held that
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.
State v. Krajewski, 2002 WI 97, �3, ___ Wis. 2d ___, 648 N.W.2d 385.� Moreover, there is no evidence in the record that Rose requested an alternate test or objected to the blood draw.� We need not explore this issue further.�
�5����������������������� Rose next argues that Wisconsin�s Implied Consent Law compels consent, thereby violating the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution.� Both constitutions guarantee citizens the right to be free from unreasonable searches and seizures.� State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990).� We interpret the Wisconsin Constitution in accordance with the Supreme Court�s interpretations of the search and seizure provisions of the federal constitution.� See State v. Fry, 131 Wis. 2d 153, 172-73, 388 N.W.2d 565 (1986).� The Supreme Court ��has consistently held that warrantless searches are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions.��� State v. Bohling, 173 Wis. 2d 529, 536, 494 N.W.2d 399 (1993) (quoting State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990)).� We review the application of constitutional principles to undisputed facts on a de novo basis.� State v. VanLaarhoven, 2001 WI App 275, �5, 248 Wis. 2d 881, 637 N.W.2d 411.�
�6����������������������� Exigent circumstances are an exception to the Fourth Amendment and permit a warrantless blood draw without consent.� See Schmerber v. California, 384 U.S. 757, 770-71 (1966).� Because exigent circumstances justified a warrantless blood test after a lawful arrest, we need not consider whether the Wisconsin Implied Consent Law constitutes a coercive measure that invalidates consent for Fourth Amendment purposes.� �When a first vessel crosses a sea to a desired harbor, there is no good purpose served by finding out whether a different ship could have made the same successful journey.�� Meyer v. Ludwig, 65 Wis. 2d 280, 292, 222 N.W.2d 679 (1974).�
�7����������������������� Consistent with Schmerber, Bohling requires the police to meet four criteria for a warrantless blood draw:� (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for an OMVWI-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 is performed in a reasonable manner; and (4) the arrestee presents no reasonable objection to the blood draw.� Bohling, 173 Wis. 2d at 533-34.�
�8����������������������� Rose does not address whether the blood draw meets all of the Bohling requirements.� The State contends it does, and we agree.� First, the laboratory seized the blood sample after the officer arrested Rose for operating a motor vehicle while intoxicated.� Rose does not claim the police used the sample for any purpose other than to obtain evidence of his intoxication.� Second, Rose told the officer he was drunk, failed two field sobriety tests, and smelled of alcohol.� There was a clear indication the blood draw would produce evidence of intoxication.� Third, St. Francis Hospital drew the blood sample.� There is no evidence that the procedure was unreasonable.� Fourth, Rose did not object to the test during the procedure.� Therefore, the warrantless blood draw was permissible under Bohling.�
�9����������������������� Rose also argues that testing the blood sample constituted a second search, for which there was neither consent nor exigent circumstances.� We rejected this �second search� argument in Village of Little Chute v. Walitalo, 2002 WI App 211, __ Wis. 2d __, 650 N.W.2d 891, holding �that the examination of a blood sample seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a separate judicially authorized warrant.�� Id. at �1 n.2 (citing VanLaarhoven, 2001 WI App 275 at �16).�
�10����������������������� Rose attempts to distinguish VanLaarhoven because there we did not address whether Wis. Stat. � 343.305 is a coercive measure that invalidates consent.� This distinction fails.� VanLaarhoven relied upon the Wisconsin Implied Consent Law to justify the search; we rely upon the exigent circumstances exception to the Fourth Amendment of the United States Constitution.� See VanLaarhoven, 2001 WI App 275 at �8.� VanLaarhoven also relied on United States v. Snyder, 852 F.2d 471 (9th Cir. 1988), a case nearly identical to Rose�s.� The Snyder court stated:� �It seems clear, however, that Schmerber viewed the seizure and separate search of the blood as a single event for fourth amendment purposes.�� Snyder, 852 F.2d at 473-74, quoted in VanLaarhoven, 2001 WI App 275 at �13. �Regardless of whether the police seized the sample pursuant to a warrant or an exception to the warrant requirement, drawing and testing a blood sample constitutes a single search.� See VanLaarhoven, 2001 WI App 275 at �16.
����������� By the Court.�Judgment affirmed.
����������� Not recommended for publication in the official
reports.� See Wis. Stat. Rule 809.23(1)(b)4.�
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(f) (1999-2000).� All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] The second of these two issues is considered in State v. Wintlend, No. 02-0964 (Ct. App. Nov. 6, 2002).� Wintlend will come before the publication committee on December 18, 2002, and as a result, we do not consider it.� See Wis. Stat. Rule 809.23(3).�