State v. David M. Hay, 946 N.W.2d 190

At ~12:50 a.m. on July 6, 2017, Officer Kyle Stommes stopped David Hay; a preliminary breath test (PBT) read ~.032 and Hay was subject to a .02 BAC limit due to four prior OWI convictions.
Hay was arrested at 1:09 a.m., handcuffed, searched, and secured in the squad car; officers searched his vehicle and waited for a third officer to watch the vehicle pending tow.
Stommes transported Hay to the hospital for a blood draw; Hay refused after being read the form. Stommes then called the on-call ADA, who agreed a warrantless draw was justified; no warrant was ever sought.
Hospital delays meant the blood draw did not occur until 2:25 a.m.; lab results later showed .00 BAC but a detectable amount of cocaine.
Hay moved to suppress the blood-test results as the product of a warrantless search; the circuit court granted suppression and denied reconsideration. The State appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hay)	Held
Whether exigent circumstances justified a warrantless blood draw	PBT ~.032 risked dissipation to .00 before a warrant could be obtained, so exigency justified immediate, warrantless draw	No exigency: officer had time/opportunity after arrest to seek a warrant and did not; the exigency was of the officers’ own making	Exigency not shown; suppression affirmed (State failed heavy burden)
When exigency analysis begins	Analysis should start at suspect’s refusal; earlier efforts unnecessary because of implied consent and likelihood suspect wouldn’t withdraw consent	Analysis must include pre-refusal opportunities to seek a warrant (McNeely/Mitchell)	Court: analysis includes pre-refusal period; State’s timing rule rejected
Allocation of burden to prove exigency	State must prove exigency	Hay: State bears heavy burden	Court: State bears heavy burden to prove exigency by clear and convincing evidence
Whether hospital delay/phlebotomist unavailability justified warrantless draw	Delay at hospital could produce exigency once phlebotomist appeared or if warrant process would not be timely	No evidence officer attempted warrant when opportunity existed; mere later delay did not justify initial failure to seek warrant	Court: hospital delay could justify a later warrantless draw if officer had applied for a warrant and still faced delay, but here officer never sought a warrant when he reasonably could have

Missouri v. McNeely, 569 U.S. 141 (2013) (warrant generally required for blood draws unless obtaining a warrant would significantly undermine efficacy of search)
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019) (exigency requires dissipation plus other pressing health, safety, or law-enforcement needs)
State v. Dalton, 383 Wis. 2d 147 (2018) (delays in the warrant process may create exigency under totality of circumstances)
Welsh v. Wisconsin, 466 U.S. 740 (1984) (police bear heavy burden to demonstrate urgent need justifying warrantless searches)
State v. Kieffer, 217 Wis. 2d 531 (1998) (State must prove by clear and convincing evidence that a warrantless search was reasonable)
State v. Brar, 376 Wis. 2d 685 (2017) (blood draw is a search presumptively unreasonable without a warrant)
State v. Guard, 338 Wis. 2d 385 (2011) (government cannot rely on exigency of its own creation)