*1 Plaintiff-Appellant-Petitioner, State Wisconsin,
v.
Defendant-Respondent.
Jacob J.
Faust,
Supreme Court
argument
No. 03-0952-CR. Oral
April
2004. Decided
July
Abrahamson, C.J., J., join. and Bradley, the cause was For the plaintiff-appellant-petitioner DeCecco, with Wagner Joseph T argued by Mary A. attor- Peggy Lautenschlager, on the brief was whom *4 ney general. by there was a brief defendant-respondent
For the by and oral Sheboygan, argument M. Stephen Seymour, M. Seymour. Stephen from a WILCOX, appeals R J. The State JON
186 published appeals Faust, court of decision, State v. 2003 App 243, WI 2d 783, 267 Wis. N.W.2d which Sheboygan County affirmed an order of the Circuit Gary Langhoff, Judge, granting Court, J. suppress defendant's motion to the results of a forced blood draw taken from him that indicated he was operating prohibited a motor vehicle with a alcohol concentration.
I. ISSUE presented ¶ 2. The issue whether, under the Fourth Amendment to the United States Constitution I, and Article Section 11 of the Constitution, Wisconsin exigent circumstances exist for a nonconsensual war- rantless blood draw after the have obtained what arresting voluntary, officer believes to be a satisfac- tory, indicating and useable chemical breath test operating the individual arrested was a motor vehicle prohibited with a level of alcohol concentration.1 ¶ 3. For the reasons below, discussed we reaffirm rapid dissipation that the of alcohol the bloodstream driving of an individual arrested for a drunk related exigency justifies offense constitutes an war- rantless blood, nonconsensual test of that individual's long so as the test satisfies the four factors enumerated Bohling, in State v. 529, 533-34, 173 Wis. 2d 494 N.W.2d (1993). presence presump hold We that the of one tively sample valid chemical of the defendant's breath extinguish exigent justify does not circumstances ing a warrantless blood The draw. nature of the evi sought rapid dissipation dence is, of alcohol —that do We not address whether circumstances would exist if the first test indicates that the defendant's blood alcohol legal concentration is within the limits. *5 the existence of other evi-
from the bloodstream —not exigency. Because cir- dence, determines the present and the test in this case blood cumstances were Bohling, the forth in we reverse satisfied the test we set appeals. of the court of decision BACKGROUND II. FACTUAL operative of this case are undis- 4. The facts February puted. 19, 2002, Officer James Olsen of On pa- Sheboygan Department on routine Police was inspecting plates the license of vehicles trol and was parked Upon checking plates a local tavern. behind coupe, Olsen that of a 1998 Chevrolet Officer discovered registered coupe. plates A to an Audi short were thereafter, time Officer Olsen observed the vehicle leave parking a routine traffic lot. Officer Olsen initiated stop, vehicle, defendant, driver of the as one Jacob J. Faust. Officer Olsen identified himself emanating "strong odor of intoxicants" from noticed slurring his the vehicle and observed Faust was glassy eyes. Upon ques- speech bloodshot, and exhibited tioning, to Officer Olsen that he had Faust indicated driving. "five before consumed brandies" a field 5. Officer Olsen thereafter administered successfully sobriety complete. that Faust failed to test voluntarily preliminary to a Faust then submitted (2001-02),2 § breath test under Wis. Stat. 343.303 possessed an alcohol of which indicated Faust result states, pertinent part, "[t]he result Section 343.303 be admissible preliminary screening of the breath test shall not any proceeding except probable action or to show cause for an arrest, challenged, prove if the arrest is or to that a chemical properly required requested person of a under s. test was or 343.305(3)." placed un- concentration of 0.13.3 Officer Olsen Faust *6 transported police headquarters. der arrest and him to arriving, sample Upon provide to a of Faust consented analysis. his for chemical The results of the breath breathalyzer possessed indicated Faust an alcohol grams per concentration of 0.09 of alcohol 210 liters of performed then a of Faust's breath. Officer Olsen search driving record, criminal the result of which indicated prior operating Faust had convictions for a two motor vehicle while intoxicated. As an individual with prior operating more convictions for a motorized two or subject intoxicated, vehicle while Faust was to the prohibited alcohol concentration of 0.08. Wis. Stat. § 885.235(lg)(cd). requested pro- then that Faust 6. Officer Olsen sample.
vide a blood After Officer Olsen read Faust the Informing form,4 refused to submit the Accused Faust giving any to the blood test without reason. Officer then issued a to Revoke Faust's Olsen Notice Intent refusing test.5 Faust was trans- license blood following proce- ported hospital where, routine phlebotomist test. The dures, a administered blood pos- from the test indicated that Faust result blood grams a blood alcohol concentration of 0.1 sessed per did not 100 milliliters of blood. Officer Olsen alcohol subsequent All references to the Wisconsin Statutes are indicated. the 2001-02 version unless otherwise "3 grams the number of 'Alcohol concentration' means person's of a or the number of alcohol 100 milliliters blood Wis. Stat. grams person's of alcohol in 210 liters of a breath." 885.235(l)(a). § 343.305(4). § Wis. Stat. See 343.305(9)(a). § See Wis. Stat.
request drug analysis sample. of Faust's blood It is undisputed sought that Officer Olsen at no time warrant for the blood test.
III. PROCEDURAL POSTURE ¶ 7. On 7, 2002, March the State filed a criminal complaint against alleging Faust, violations of Wis. 346.63(l)(a) intoxicated) § (operating Stat. while 346.63(l)(b) § (operating prohibited Wis. Stat. with a concentration). alcohol On October 2002, Faust filed suppress a motion to the results of the test, blood arguing that the warrantless test was taken in violation of the United States and Wisconsin Constitutions be- cause circumstances did not exist due to the fact *7 arresting already that the officer had obtained what he voluntary believed to be a and sufficient breath test that indicated Faust's level of intoxication was in excess legal hearing, of the limit. At the motion Officer Olsen department procedure indicated that while it was not request driving a blood test in all drunken cases, he sought purpose gathering a blood for the test of addi- previous tional evidence because the two tests were very legal near the limit. Officer Olsen also testified breathalyzer that at the time the was administered, he voluntary satisfactory believed it to abe test. The granted suppress circuit court Faust's motion on February concluding "exigent 25, 2003, that circum- justify taking stances did not exist to the warrantless the Defendants blood."
¶ appeals, 8. The court of based on our decision in Krajewski, State v. 97, 2002 WI 98, 255 Wis. 2d 385, N.W.2d affirmed the order of the circuit court. Krajewski, Faust, 783, Wis. 2d 1. In this court held: person blood draw from a nonconsensual
a warrantless driving a drunk offense cause for probable arrested on exigent on the circumstances based is constitutional of the Fourth requirement exception to the warrant to a Amendment, person offers to submit even if the by chosen law the blood test test other than chemical enforcement, complies draw provided that the blood Bohling. factors enumerated with the Krajewski, stated However, we also 98, 2d 255 Wis. exigency "[t]he Krajewski that exists because disappear dissipating until a satisfac- not alcohol does Id., ¶ tory, taken." test has been useable chemical appeals from that this sentence concluded The court Krajewski compelled indi- that "once an the conclusion provided probable cause for OWI has on arrested vidual satisfactory test, the chemical and useable justifying and nonconsen- a warrantless circumstances longer Faust, 2d 267 Wis. no exist." draw sual blood ¶ Judge concurring opinion, E Nettesheim Neal 1. In a by although this sentence he felt bound stated analysis in Kra- remainder of the from passage. Faust, jewski this isolated contradicted (Nettesheim, concurring). ¶¶ J. 2d 18-21 Wis. OF REVIEW IV STANDARD genuine fact of material are no 9. There issues *8 appeal. purposes a nonconsen- Whether of this for the to obtain evidence draw taken warrantless blood sual following concentration blood alcohol a driver's exception exigent circumstances arrest falls within requirement and federal the state warrant to the question court reviews of law that this is a constitutions Krajewski, ¶98, 2d 17. 255 Wis. de novo.
191 V ANALYSIS Exigent A. Circumstances begin analysis by reiterating 10. We our some principles applicable
basic constitutional to the case at bar. Both I, Article Section 11 of the Wisconsin Consti-
tution and the Fourth Amendment of the United States "guarantee right Constitution citizens the to be free Bohling, from" 'unreasonable searches.'" 173 Wis. 2d at "compelled intrusion[ ] body 536.6 A into the for blood analyzed to be for alcohol content" constitutes a search under the Fourth Amendment. Schmerber v. California, (1966). 757, 384 U.S. 767-68 Subject exceptions, to a few well-delineated per warrantless searches are deemed se unreasonable Bohling, under the Fourth Amendment. 173 Wis. 2d at (quoting 536 Murdock, State v. 155 217, 227, Wis. 2d (1990)). governmen "[a] 455 N.W.2d618 It is clear that 'exigent tal search based on circumstances,' like a excep search arrest, incident to an a is well-established requirement." Exigent tion to the warrant Id. at present justify circumstances are so as to a search in the absence of a warrant where there ais threat destroyed "evidence will be lost or if time is taken to obtain a warrant." Id. at 537-38.
6 "The Fourth Amendment
to the United States Constitu
I,
tion
Article
11
Section
of the Wisconsin Constitution are
virtually identical. Both
right
establish the
of persons to be
secure from unreasonable searches and
Consequently,
seizures.
this court interprets
the two
provisions
constitutional
in con
cert."
State v.
n.9,
WI
2d
Wis.
¶ whether The test for 12. inquires objective and present one, 538, id. at are is reasonably "might have be the officer into whether emergency, in with an he was confronted lieved that delay necessary warrant, under obtain a the which of evi circumstances, 'the destruction threatened (quoting dence[.]'" Preston Schmerber, at 770 384 U.S. (1964)). In Schmer States, U.S. v. United Supreme that Court established ber, States the United dissipation rapid from of alcohol metabolization drunk for a an individual arrested of the bloodstream qualifies driving circum as an offense related attempt justifying evidence to secure stance securing at a Id. warrant. without first intoxication 770-71. that once us to conclude 13. Faust asks they to be
police at the time believe have obtained what sample satisfactory, voluntary, chemical and useable exigency intoxication, the the defendant's the level of disappears. supporting draw blood a warrantless upon primarily argument one sentence relies Faust's Krajewski, stated where we our decision from dissipating alcohol exigency "[t]he that exists because satisfactory, disappear chemical useable until a not does 2d 255 Wis. taken." has been test argues exi- that the contrast, the State In require- exception gent the warrant circumstances premised on the Amendment Fourth ment of the destroyed danger rather than will be that evidence already possess police of a crimi- evidence whether simply because contends The State nal violation. they already to be believe collected what have establishing sample the defendant's chemical valid exigency. In remove the does not intoxication level of other words, the State asserts that circumstances giving exigency rise to the in the first instance —the *10 rapid dissipation of alcohol from the bloodstream —are present, regardless police still the whether have other evidence of intoxication. agree Judge
¶ 15. We with the State and Nettesheim's concurrence that to read the isolated passage Krajewski upon from Faust which relies as exigent providing that in circumstances cease to exist already all the cases when a have obtained supposedly chemical valid test would he inconsistent exigency Bohling with the nature the as illustrated in Krajewski. and Bohling, explained
¶ 16. In court that this interpreted ways: Schmerber could be one in of two (a) rapid dissipation that the of alcohol the blood- stream exigency alone constitutes a sufficient for a warrantless blood draw to obtain evidence of intoxica- tion following lawful arrest a drunk driving or opposed taking related violation crime —as a blood sample reasons, for other such toas determine blood (b) type; rapid or dissipation that of alcohol in the bloodstream, accident, coupled hospitalization, with arrest, lapse of two hours until constitute exigent circumstances for such a blood draw.
Bohling, 2d at Wis. determined We that interpretation more reasonable of Schmerber was exigent former one: that circumstances exist "based solely rapidly dissipates on the fact alcohol in the bloodstream." at words, Id. 539.7 In other we deter-
7 Chief Justice Abrahamson's dissent contends required State was to offer additional evidence of dissent, Justice circumstances. Chief Abrahamson's 44. This suggestion clearly at is odds decision with our in State v. propo Bohling for the that Schmerber stands mined rapidly dissipates in the alcohol that the fact that sition justifies that he is faced an officer's belief bloodstream necessary emergency, delay "an which with threatenfs] circumstances, warrant, under the obtain a evidence[.]'" Schmerber, at 384 U.S. destruction 'the (citation omitted). addition, In noted that the United States we recognized Supreme of a that "in the context Court has Fourth Amendment draw,... blood warrantless activity requirement at relaxed when the warrant public safety. Because risk to issue constitutes serious engaging safety persons public in such risk, of the privacy." expectation of have a reduced activities Ry. (citing Bohling, v. Labor 2d at 540 Skinner 173 Wis. *11 (1989)). on Ass'n, 602, 627 We went Executives 489 U.S. safety public explain involved concerns the serious influence and to drive under the a driver chooses when expectation of a driver's concerns reduce that such interpreta- explained privacy. our Id. at 541.8 We a favorable balance between of Schmerber "strikes tion right free from unreasonable individual's to be enforcing in its drunk interest searches and Wisconsin's (1993) (stating 529, 539, 399 Bohling, 173 Wis. 2d 494 N.W.2d solely on the fact that exist "based exigent circumstances bloodstream") (emphasis rapidly dissipates alcohol added). magnitude of the seriously dispute "No one can eradicating driving or the States' interest problem
drunken mutilation on reports death and it. Media of alcohol-related Sitz, Dept. v. legion." Michigan State Police roads are Nation's (1990). all fatal traffic 444, than one-third of U.S. More involve alcohol. of Wisconsin crashes state http://www.dot.state.wi.us/safety/motorist/drunkdriving/iiidex. 2003). (last September modified
htm driving laws. Wisconsin's interest is vital whereas the resulting privacy intrusion on individual is minimal." Id. at 545. 18. Therefore, we concluded that cir- solely rapid dissipation
cumstances exist based on the person's alcohol from a bloodstream, such that a war- sample lawfully rantless blood could be taken under the following circumstances:
(1) the blood draw is taken to obtain evidence of intoxication person from a lawfully arrested for a (2) drunk-driving related crime, violation or there is a clear indication that the blood produce draw will evi- (3) intoxication, dence of the method used to take the sample blood is a performed reasonable one and in a (4) manner, reasonable presents arrestee no objection reasonable to the blood draw.
Bohling,
¶ 19. In we determined that the exi- gency justifying a warrantless blood draw—the fact likely destroyed that evidence disap- to be not —does pear person agrees "as soon as a to submit to a breath opposed test as to a blood test." 255 Wis. 2d Focusing destructibility on the of the evi- "ftjhe dence, exigency upon we reasoned that which a premised dissipation warrantless blood draw is is the person's alcohol in the blood stream. An arrested offer to submit to one chemical test rather than another does dissipation. not slow this The evidence remains on a *12 added) destroyed." (emphasis course to Id., ¶ be 37 (citations omitted). "[ejven ¶ 20. person Further, we noted that when a submits to a breath test in lieu a blood test—outside of provisions implied the may of the consent statute —the test subject challenge grounds
be on that the given freely person's not and consent to the test was added). voluntarily." (emphasis Ultimately, ¶ Id., we Bohling in forth and reaffirmed the four-factor test set person's agreement of that "a to submit to a test held negate exigency, person's does not the nor the choice a of the render unconstitutional nonconsensual test ¶ choice." Id. 63. We concluded: officer's in the rapid dissipation alcohol bloodstream [T]he of justifies test exigency creates an that a nonconsensual blood, breath, person or urine of a arrested for of driving drunk-
while intoxicated or other similar offenses, is driving long so as the test adminis- related Bohling. factors pursuant tered to the enumerated added). (emphasis Id. argument and both 21. The trouble with Faust's exigency they ignore of the nature
dissents that justifies draw as described that a warrantless blood Bohling Bohling Krajewski. and and This court exigency justifying Krajewski clearly that stated rapid blood draw is metabolization warrantless dissipation of The rea- alcohol from the bloodstream. soning Krajewski rapid on the dissi- focused —which pation from the stream —is inconsistent alcohol blood exigency disappears as the conclusion with they police obtained what at the time as the have soon sample. chemical to be a valid breath believe have obtained 22. The fact sample presumably of the defendant's valid chemical indicating the defendant's level intoxication breath change fact alcohol continues does not that the dissipate The evi- from the defendant's bloodstream. destroyed." sought on a to be "remains course dence Krajewski, In we Wis. 2d exigency rejected specifically that "the the contention *13 exception requirement.. turn[s] upon to the warrant . executing the means used for the search rather than the urgency steady dissipation involved in the of alcohol." (emphasis original). Id., ¶ 42 We also intimated that exigency "[e]ven person remained when a submits to a breath test lieu of a blood test" because the suspect challenge grounds could later the test on the freely voluntarily that he did not and consent to the Id., test.
¶ 23. Thus,
conclude,
we
based on the rationale of
Bohling
presence
pre-
and
that the
of one
sumptively
sample
valid chemical
of the defendant's
extinguish
exigent
breath does not
circumstances
justifying
"[T]he
a warrantless blood draw.
relevant
exigency
likely
basis for
here is that evidence is
to be
destroyed." Krajewski,
Regardless
We discussed Skinner solely on exigency that was based support our conclusion rapidly from bloodstream. dissipates the fact that alcohol ("In Skinner, Reid, Court Supreme at 993 See also 929 F.2d there is a that time is of the essence when reiterated notion body."). find these more recent to test alcohol in the We need decisions, con- requirement the warrant in the which address intoxication, gathering persuasive to be more text of evidence upon dissent by dated relied Justice Prosser's than the cases presented in this case. Justice do not concern the issue dissent, 58-60. Prosser's ¶¶
presence presumptively voluntary one and valid might reasonably test, breath Officer Olsen have be- necessary it lieved that was to secure additional evi- dence of Faust's level of intoxication without a warrant prevent being in order to from needed evidence de- stroyed. recognize police First, 25. they we do not know
when administer a breath test whether the result of that test is valid and useable. In concurrence, his Judge appellate Nettesheim indicated courts rou- tinely challenges involving a hear stream of breath Judge Faust, tests. 2dWis. 23 n.3. As Nettesheim stated:
[M]y crystal concern that the do not have ball situations, proposition Krajewski these which the *15 recognize. police decision seems to While the here presumably they believed that had obtained a valid test, guarantee, very breath this does not in the words of a satisfactory and breath useable test. depend That determination ruling by would on a future the court in trial the event that Faust challenge should the breath test. (emphasis original). argu-
Id., ¶ 22 Indeed, at oral planned ment counsel Faust indicated that he challenge accuracy of chemical test, breath due allegedly taking to medication that Faust was at the time of arrest. police acquire Second, often need to addi-
tional, more definitive evidence of intoxication where analysis sample of a results chemical of a breath are legal preliminary close Here, to the limit. breath possessed test indicated that Faust an alcohol concen- analysis sample tration of 0.13. Chemical of the breath provided police headquarters at an indicated alcohol concentration of 0.09. While search of Faust's criminal driving driving drunk that he had two record indicated subject prohibited to a and was thus related offenses police do not know 0.08, the content of alcohol any prior will convictions of these whether advance ultimately Faust, 267 Wis. into court. See admitted be (Nettesheim, (collecting concurring) J., 2d challenged alleged prior defendant cases where convictions). successfully ultimately chal- Had Faust something prior lenged of his one or both convictions— way knowing time the breath at the had no prove that had to would have test was taken —the State operated an alcohol con- motor vehicle with his Faust Stat. See Wis. at least 0.1. centration 885.235(lg)(c). preliminary § tests are However, breath prove level of the defendant's at trial to not admissible probable they only at the are admissible intoxication; § hearing. Thus, the State 343.303. Wis. Stat. cause of the breatha- left the results been with would have possessed lyzer, an alcohol that Faust which indicated only 0.09. concentration apparently suspect if the has Third, even provided implied
complied consent statute with the may sample, an issue later be there initial chemical actually to take consented defendant whether the as to Rydeski, 101, 106, 2d 214 Wis. State v. the test. 1997) ("[A] (Ct. App. not refusal is verbal N.W.2d may required. serve as the accused The conduct of refusal."). guarantee no Likewise, there is for a basis *16 police argue that the at trial will not that the defendant through of the use to a test or her consent coerced his properly administer implied law or failed consent 343.305(4).10 suspect § warning Also, if a in Wis. Stat. 10 See, Piddington, 1, e.g., State v. 24, 241 Wis. WI ¶ 2001 Walitalo, 2002 Chute v. Village Little 528; 754, 2d 623 N.W.2d of
201 consents to a blood test outside the parameters implied statute, consent there may later be an issue as to whether his consent given. Krajewski, 255 freely was 98, 2dWis. 41. Therefore, the fact ¶ that the had obtained a single presumptively valid breath sample from Faust did not remove the need to gather evidence of intoxication in of "the light urgency involved in the steady dissipation of alcohol." Krajewski, Wis. 2d 255 98, 42.11 The threat remained ¶ that "evidence [would] be lost or if destroyed time [were] taken to obtain a warrant." Bohling, 173 2dWis. at 538. 28. Furthermore,
¶ we note the practical conse- that quences would ensue if we were to accept Faust's that position the exigency evaporates once the police have secured a single breath test that the officer believes to be voluntary and First, useable. as we Krajewski, under Wisconsin's explained con- implied statute, sent 343.305, § "[a] person who operates a 211, 8, AppWI 256 Wis. 2d 891; ¶ County N.W.2d Quelle, Ozaukee v. 269, 274, 198Wis. 2d 280-84, 542 N.W.2d196 (Ct. 1995). App. opinion Our Krajewski emphasized that "[t]he exi gency upon which a warrantless premised blood is draw is the dissipation of alcohol from the blood Krajewski, stream." Also, Wis. 2d 37. ¶ we reiterated that "the relevant basis for exigency here is that likely Id., evidence destroyed." to be emphasized 36. We urgency ¶ "the steady involved in the dissipation Id., of alcohol." Also, 42. acknowledged we this court in Bohling had established rapid "[t]he dissipa tion of alcohol in the blood stream alone constitutes a sufficient exigency" "íeject[ed] requirement that an officer seek a search warrant in period immediately Id., following arrest." Thus, we do not understand dissents, how one of by written the author can accuse us [ing] of "focus narrowly on the fact that dissipating alcohol is in the blood stream." dissent, Justice Prosser's *17 deemed to have given motor vehicle this state is blood, breath, to one or more tests of his or her consent of a enforcement officer or urine law upon request driving if the is arrested for a drunk offense." person added).12 2d If (emphasis 255 Wis. Krajewski, were to Faust's then when an accept position, we for drunk consents to the driving individual arrested tests, initial breath test refuses all subsequent be to obtain a warrant to compelled would police result, additional As a "the conduct test. arrested any investigation, would dictate the terms of limit- person to a for a blood test —a ing single option Id., search warrant." 42.13 343.305(3) provides, pertinent part: § Wisconsin Stat. 346.63(1)... (a) person Upon arrest of a for violation of s. law may request person provide to one or more
enforcement officer breath, samples purpose of his or her blood or urine for the (2). Compliance request type specifiedunder sub. with a for one sample subsequent request type bar a for a different does not sample. Notably, mention Justice Prosser's dissent fails even 343.305(3). § Krajewski, discussed in As we statute, legislature enacting implied In consent au- request his or her choice
thorized a law enforcement officer
request
among
more than one
these three chemical tests and to
driving
person
test from a
arrested for a drunk
offense.
chemical
otherwise,
compelling
presume
must
In the absence of
evidence
we
giving
legislature
good
had
reasons for
law enforcement
right
among
These reasons
officers the
to choose
chemical tests.
may
the fact that one test
better able to detect the
could include
be
another;
may
presence of controlled substances than
one test
be
another;
jury
than
one test
more efficacious as evidence before
another;
may
susceptible
test
less
to attack in court than
one
be
any given
another;
may
readily available on
occasionthan
he more
hospital permit
in a
of an intoxicated
and tests taken
observation
Second,
as
we noted
"[b]lood
are the
samples
most direct means of measuring alcohol
*18
Id.,
concentration
in the blood..
.
However,
40.
¶
obtaining a warrant
to authorize a blood draw
take
may
Id.,
some time and may
often be impracticable.
42¶
n.19.14 Police would be forced to choose between obtain
ing the most direct and accurate evidence of intoxica
tion and
the risk
taking
this evidence would be de
or
stroyed,
procuring
most easily ascertainable
evidence of intoxication, knowing that it is often subject
to
in court.
challenge
Thus, such a result would impair
the legitimate
evidence gathering
objectives of the
police because the level of blood alcohol would continue
until the
dissipate
person is transported to a hospital
id.,
and blood
drawn. See
actually
is
Yet,
as the
United States Supreme
Skinner,
Court
recognized
government's
"[t]he
interest
in dispensing with the
warrant
requirement
is at its strongest when,
here,
as
'the burden of
obtaining warrant
likely
is
to frustrate
the governmental
Skinner,
behind
purpose
the search.'"
person by
professional
person
a medical
jail.
before the
is taken to
equally
These reasons are
valid
chemical tests taken outside the
for
implied consent statute.
added).
255 Wis. 2d
55 (emphasis
14Apparently, according
dissent,
to Justice Prosser's
these
recognized
concerns that we
in Krajewski
longer
are no
valid.
dissent,
Justice Prosser's
(quoting
59¶
Johnson v. United
States,
(1948)).
333 U.S.
14-15
We also note that
length
of time required to secure a warrant
important
because
usually
chemical tests must
be taken within three hours after
arrest in order
prima
to be considered
facie evidence of intoxi
885.235(3).
cation.
§
See Wis. Stat.
Ironically,
might
position
also sub-
Faust's
ject
greater
blood
drivers to a
number of
Wisconsin
required
would be
to obtain a
tests. Because
perform
after a
a nonconsensual blood test
warrant
police depart-
test,
to a breath
driver had consented
routinely
might
test
ments
make a blood test
first
they
implied
ask under the
consent statute so
for which
gather the
direct evidence of a
as to be able to
most
fear of the evi-
driver's level of intoxication without
being destroyed.
stopped
an alcohol-
dence
Those
driving
routinely subject to a
related
offense would be
procedure far
time-
test,
blood
as a first
more
test
simple
consuming
intrusive than a
chemical breath
Skinner,
B. Reasonableness *19 Although
¶
we have concluded that the nature
31.
sought, not the existence of other
of the evidence
exigency,
holding
our
does not
evidence, determines
police
to take an
mean that
have carte blanche
long
of
as
as alcohol continues
unlimited number
tests
today
dissipate
need not
from the bloodstream. We
exigent
of the
circum-
determine the outer boundaries
requirement
exception to the warrant
and draw
stances
questions
bright
in
such as
a
line
order to answer
constitutionally
multiple
police may
take
whether the
chemical breath
or a combination of
blood tests
samples,
all
a
tests,
urine
and blood tests
without
us. As
these are not the facts before
warrant,
for
Krajewski, "[ejxigency
explained
of
in
relieves the state
obtaining
a search. It
of
a warrant before
the burden
hearing
establishing, in
does not relieve the state
requirements for a
search, that
it met the
after the
including the
warrant,
constitutional search without
205
requirement
Krajewski,
of reasonableness."
255 Wis. 2d
presence
exigent
¶98,
Thus,
the mere
circum-
stances is insufficient for a warrantless blood draw to
pass
muster;
constitutional
the search must also meet
for
test
reasonableness that we
articulated
Krajewski,
Bohling.
Bohling,
¶¶
98,
255
2d
45, 63;
Wis.
sessed police made after this was while the were aware test previous performed that Faust had incurred two driving they convictions, alcohol-related could not know ulti- whether one or both of these convictions would mately admitted at trial. If either of them were be ultimately inadmissible, the determined to be State required prove operating that Faust his would be was higher. vehicle with an alcohol concentration of 0.1 or § 885.235(lg)(c). preliminary The See Wis. Stat. breath possessed test that indicated Faust an alcohol concen- this tration of 0.13 would not have been admissible for § Additionally, police purpose. Stat. 343.303. Wis. knowing way had no at the time the test was analysis the chemical administered whether Faust's sample at trial. Given the breath would be useable removing strong from state interest drunk drivers roadways reoffending (especially drunk Wisconsin's drivers), driving apparent drunk related Faust's two convictions, and the of the initial chemical results say requiring Faust to test, breath we cannot single warrantless blood draw was unrea- submit to sonable.16 16Thus, merely determine that under the this we facts of
case, police to take one blood test it was reasonable do not hold that single addition to the chemical breath test. We many it for the to "take as valid tests of the is reasonable necessary they [think] as to sustain suspect's blood alcohol dissent, 45. To as conviction." Chief Justice Abrahamson's dissent, reiterate that the reason suage the concern of the we presump test when a ableness of a warrantless nonconsensual depend upon the tively present valid consensual test will case. totality of the circumstances of each individual present inconsistencies point We also out the internal hand, On the one it Chief Justice Abrahamson's dissent.
VI. CONCLUSION rapid dissipa- ¶ sum, In reaffirm that the 34. we an tion of alcohol the bloodstream of individual driving arrested for a drunk related offense constitutes exigency justifies nonconsen- warrantless blood, breath, urine, of that or so sual test individual's long as the the four factors enumerated in test satisfies Bohling. presence presumptively The of one valid sample chemical extinguish of the defendant's breath does not exigent justifying circumstances a war- sought The rantless blood draw. nature of evidence rapid dissipation is, —that of alcohol from the other de- evidence, bloodstream —not existence of exigency. exigent termines the Because circumstances present in were this case and the blood test satisfied the Bohling, test we set forth we reverse the decision of appeals. the court of
By appeals the Court.—The decision of the court of is reversed. {dissent- ABRAHAMSON, 35. SHIRLEY S. C.J.
ing). agree I with the circuit court that the results of suppressed. the forced blood test should be The blood consent, test was taken without without a search war- exigent rant and without circumstances. Exigent exist, circumstances did not arresting ruled,
circuit court officer because had already voluntary obtained what believed to be a he stresses that circumstances are to be determined under totality majority of the circumstances test and chastises the opinion allowing for supposedly police to take an unlimited dissent, 43,45. number of tests. Chief Justice Abrahamson's ¶¶ hand, On the other the dissent bemoans the fact that we do not bright establishing many create a line rule how tests are dissent, Justice reasonable. Chief Abrahamson's sufficient breath test that demonstrated that Faust's legal BAC was excess of the limit. The circuit court *22 postulated problem that "the could have been obviated by [the officer] purely requesting law enforcement primary blood as the test." got
¶
right.
37. The circuit court
the case
It fol
Krajewski,
lowed this court's decision in State v.
2002
97,WI
40, 255
2d 98,
Wis.
385,
N.W.2d
cert.
(2002):
exigency
denied,
¶ 38. Law enforcement officers have a choice of which of several chemical tests to administer. As we explained Krajewski, presume we must legislature good giving had reasons for law enforcement among officers a choice chemical tests. Each test has Krajewski different attributes.1 made it clear that the officer's, choice was the not the accused's. The chemical present according test the officer chose was, case testimony, satisfactory, to the officer's own useable chemical test. Adhering Krajewski
¶ 39. to the case decided and published years ago, a mere two I that, conclude with- consent, out warrant, without search and without exigent circumstances, the forced blood test present case violated the United States Constitution. provides:
¶ 40. The Fourth Amendment
"The
right
people
persons,
of the
to be secure in
houses,
their
papers,
against
and effects
unreasonable searches and
State v.
97,
40,
2002 WI
255 Wis. 2d
denied,
(2002).
cert.
N.W.2d
seizures, shall not be is reasonableness. Amendment Supreme has con- Court States 41. "The United per sistently are se searches held that warrantless subject Amendment, to the Fourth under unreasonable majority exceptions."3 carefully The delineated a few justify exception exigency upon the war- relies reasoning present case, and its in the rantless search exception. broader than erroneously majority holds ¶ 42. The whether exi- determines alone nature of the evidence majority gent declares with- The exist.4 circumstances contrary any legal support our own all, and at out "[t]he Krajewski of the evidence decision, that nature sought, evidence, determines of other not the existence *23 exigency."5 exigent principle accepted is that
¶ of law The 43. examining by the total- are determined circumstances exigent ity circum- for The test the circumstances.6 of upon under officer is whether review stances time officer at the known to the circumstances reasonably "might he confronted believed that was have delay necessary emergency, to which with 2 IV U.S. Const Amend. Murdock, 217, 227, 2d 455 N.W.2d State v. 155 Wis.
(1990).
4 Majority op.,
34.
¶
5 Majority op.,
¶
Smith,
229,
220,
the 'destruction of evidence.1
¶ body destroyed 44. Evidence of alcohol in the is by passage any time, of without act of the individual involved or of law enforcement. All evidence of intoxi- gathered preserved. cation cannot be and Here evidence preserved of intoxication has been in the form of the breathalyzer result of a valid test. Evidence of intoxi- being destroyed present cation that is in the case is already preserved. cumulative of evidence collected and proof The State offered no of circumstances except continuing dissipation of alcohol. majority's argument essentially 45. The
because law enforcement officers do not know what will (and happen course), at trial does, no one it was many reasonable for them to take as valid tests suspect's they thought necessary blood alcohol as majority sustain a conviction.8 The also is concerned may that a defendant exercise his or her constitutional rights challenge prior validity convictions or the the results of a chemical test.9 responded 46. This court understood and problems Krajewski. Krajewski these The court held may give that law enforcement officers choose to they appropriate chemical test think under the circum- stances. legislature apparently 47. Furthermore, en-
ables law enforcement officers to take more than one
*24
by request.
implied
chemical test
Under the
consent
7 State v. Bohling,
529, 538-39,
2dWis.
9 Id. suspect test, to submit to a chemical
law, if the refuses may possession person's of driver's take the the prepare revoke a notice of intent to the license and operating person's privilege.10 Therefore, the state's appears keeping road drunk drivers off the interest prevented draw is met, even if a warrantless blood to be by the Fourth Amendment. Although majority law concedes to not have carte blanche take officers do
enforcement long as as alcohol contin unlimited number of tests dissipate bloodstream, to define to in the it refuses ues many The limits tests are reasonable. the outer majority opinion of how test, back to the reasonableness falls Bohling.11 four-part citing test of reasonableness pertinent consent statute states implied Wisconsin's part: intoxication; suspension
343.305 Tests for administrative and court-ordered
(3) Requested required. or (2m) (5) (a) 346.63(1), Upon person or arrest of violation of s. conformity therewith, for a violation of s. or a local ordinance in 346.63(2) or (6) 940.25, 940.09 the offense involved or or or s. where vehicle, may request the use of a a law enforcement officer breath, samples person provide more of his or her blood one or (2). Compliance specified purpose under with or urine for sub. request sample subsequent request type not for one does bar a type sample. for a different (9) Refusals; Hearing. Notice and Court (a) (3)(a), person If a to take a test under sub. law refuses immediately possession enforcement shall take officer revoke, by person's prepare license a notice of court intent (10), person's operating privilege. order under sub. 11Majority op., *25 Bohling applicable
¶ 49. is not to exi- determine gent present circumstances in the case when more than was one test administered. The first and second of Bohling justification four factors amount to for arrest driving. setting for drunk The third factor relates to the under which blood is drawn. The fourth factor relates to exigent according majority But, circumstances. to the opinion, dissipation exigent of alcohol creates circum- by stances. So no reasonableness test is offered majority. majority The internal inconsistencies in the opinion apparent troubling. are By failing
¶ 50. to define outer limits of what majority opinion is reasonable in a blood case, draw opens litigation. majority opinion door to more The litigants, also leaves law enforcement officers, circuit appeals quandary, courts, and the court of in a without regarding guidance what number of tests is reasonable. breathalyzer ¶ 51. Because test was sufficient preserve evidence of trial, Faust's until intoxication exigent no circumstances existed take blood without naturally consent or a search warrant. That alcohol dissipates ordinarily exigent in the blood creates not, however, circumstance. It does create an circumstance under the facts of this case. For forth, the reasons set I dissent. I am authorized to state that Justices ANN join BRADLEYand PROSSER,
WALSH DAVIDT. JR. this dissent. (dissenting). T. PROSSER, 54. DAVID J. The
majority opinion is well intentioned. None the mem- continuing bers the court unconcerned about continuing carnage drivers,1 or the from intoxicated roadways.2 driving prevalence impaired on Wisconsin *26 underlay legitimate in our decisions concerns These Bohling, 529, 399 2d 494 N.W.2d State v. 173 Wis. (1993), 97, 255 2d v. 2002 WI Wis. and State 98, 385. 648 N.W.2d problem in that the arrest-
¶ this case is 55. The voluntary, ing a satisfac- not satisfied with officer was tory, from the defen- chemical breath test and useable backup. No reason was He a second test as dant. wanted except given the "search" of defendant for this second gather in event it evidence the desire to additional suppressed later The circuit court was needed. product on a warrant of second search without this "exigent grounds exist to circumstances did not that taking justify of Defendant's blood." the warrantless justify a warrantless 56. In order to second "exigency" point taking, redefine we axe forced to meaningless. that it becomes
HH Heritage Dictionary 57. The American adjective English "exigent" Language defines as an remedy." "Requiring immediate action or The means Heritage English Language Dictionary American 1 6,570 injured people people killed and as There were 292 in motor crashes Wisconsin a of alcohol-related vehicle result year according report published to a in during the February by Department Transportation, 2004 Wisconsin (an person 1 Safety average of killed Transportation Bureau of minutes), www.dot.wisconsin.gov/safety/ injured every 77 or 2004). (last visited June motorist/crashfacts/index.htm 37,775 operating while people There were arrested Id. roadways intoxicated on Wisconsin (3d 1992). ed. An is defined as a "exigency" "pressing Id. or urgent "Exigencies situation." are re- "urgent Id. quirements; pressing needs." It is easy enough to a explain breath, blood, second search for or if one urine focuses on the narrowly fact that alcohol is dissipating in the blood stream at the time the search is under- taken. It is not easy so justify second search for if backup evidence one to justify that attempts search as urgent requirement. "Exigency" first appeared Fourth Amend- States, v. McDonald United ment jurisprudence (1948). U.S. 451, 455-56 In case, the Court sup- pressed evidence obtained when intruded into home of suspected "numbers" offic- operator. The ers, had who the defendant under surveillance for two *27 months, entered by open window to arrest the suspect because the heard police an adding machine typically used in numbers operations. Douglas, Justice writing for the majority, reflected the on of the importance Fourth Amendment:
We dealing presence are not with formalities. The aof search high warrant serves a function. Absent some grave emergency, the Fourth Amendment has inter- posed magistrate a between the police. citizen and the This was done to shield not criminals to nor make the home a for illegal safe haven It activities. was done so objective might weigh that an mind the need to invade privacy that in order to right enforce the The of law. privacy precious was deemed too to entrust to the job of discretion those whose is the detection of crime heady and the arrest of criminals. thing; Power is a and history shows the police acting that their on own requires cannot be trusted. And so the a Constitution magistrate pass to on the desires of the before they privacy violate the of the home. We cannot be true to requirement that constitutional and excuse the ab- by showing those of warrant without
sence a search from constitutional mandate exemption the who seek made that course exigencies the situation that imperative. added).
Id.
(emphasis
a line of cases
in-
McDonald
followed
(1948).
States,
In
v. United
There
circumstances
are
against
ancing
need for effective law enforcement
that a
right
privacy, may
it
be contended
may
dispensed
be
with.
magistrate's warrant
search
for not
But this
such a case. No reason
offered
is not
to
except
warrant
the inconvenience
obtaining a search
delay necessary
prepare
slight
and some
officers
magistrate. There are
evidence to a
papers
present
and, in
convincing
these circum-
very
never
reasons
stances, certainly
enough
bypass
are
the consti-
not
likely
fleeing
suspect
tutional
No
was
or
requirement.
*28
flight.
permanent premises,
take
The search
was
of a
evidence
contraband
not
movable vehicle. No
or
destruction, except
with
or
was threatened
removal
suppose in
would
perhaps the fumes which we
time
they
capable
any
at
time of
disappear. But
were not
being
possession
presentation
to court.
reduced to
added).
Id. at 14-15
(emphasis
years
later,
60. Three
in United
v.
States
Jeffers,
(1951),
again presented
of the Fourth ánd, so, Amendment in proposition cited Johnson for the that warrantless may proper "exceptional searches in be circumstances." proposition Id. at 51. The Court cited McDonald for the that the Government the burden of hears demonstrat- ing exception requirement may that an to the warrant justified, id., be but the did Court not mention "exi- gency" any in manner.
¶ 61. landmark in The decision Schmerber v. Cali- (1966), important an in fornia, 384 U.S. link this "exigent" line of it cases, but also did not use the terms "exigency." or The relevant used discussion instead "emergency." term case, present however, might
The officer reasonably have believed that he was confronted with emergency, delay necessary which the obtain warrant, circumstances, under threatened "the States, v. United evidence," Preston destruction of We are the percentage U.S. told that of alcohol begins shortly drinking the blood to diminish after *29 body to eliminate it from
stops, as the functions this, time system. Particularly a such as where case bring to a and to hospital had to to the accused be taken accident, no time investigate the scene of the there was a warrant. Given magistrate to seek and secure out facts, to attempt we special these conclude content in this case secure of blood-alcohol evidence petitioner's appropriate was an incident to arrest. added). (emphasis Id. at 770-71 years, Supreme ¶ 62. Over the the Wisconsin Supreme have United Court Court and the States "exigent representing the characterized Schmerber as requirement. exception circumstances" to the warrant (1985); Lee, United See Winston v. U.S. (1973); Dionisio, State v. v. 410 U.S. 8-9 States (1993). Bohling, 529, 538, 494 N.W.2d399 173 Wis.2d ¶ 63. present case, In obtained II Nothing satisfactory, threatened the useable evidence. only thing The "threat destruction of that evidence. of the ened" was the destruction of additional evidence same character. prosecutor, repre- repeatedly I 64. As a former juries alcohol that machines to measure the
sented and reliable. Conse- content of breath were scientific quently, proposition that an is hard embrace it "exigency" to obtain of constitutional stature exists backup samples If from of blood evidence or urine. though exigency correct, it would as an were seem every Such case which blood is not drawn. exists exigency deten- rationale for extended is built-in amounting potentially to ha- tests tion additional rassment. any
¶ If officer in this case had offered *30 compelling explanation why a second test was opposed probably "desired," "needed" I as would not writing presented, be this dissent. But on the I facts cannot conclude that the second warrantless search of recog- was the defendant entitled to march with other "exigencies" nized in our The result in law. this case "exigent exception untethers the circumstances" to the requirement premises supporting warrant from the exception. join opinion I of the Chief Justice and respectfully dissent. I am authorized state that Chief Justice
SHIRLEY S. ABRAHAMSON and Justice ANN join WALSH BRADLEY dissent. this