*1 Plaintiff-Respondent, of Wisconsin, State
v. Michael R. Tullberg, Defendant-Appellant-Petitioner.
Supreme Court
argument
No. 2012AP1593-CR. Oral
September
2014.
—Decided December
For the
the cause was
Remington,
attorney general,
Christine A.
assistant
with
attorney general.
Hollen,
whom on the brief was J.B. Van
¶ 1. ANNETTE KINGSLAND ZIEGLER, J. This is
unpublished
a review of an
decision of the court of
("Tull-
appeals1
which affirmed Michael R.
berg")
County
criminal
in
convictions
Shawano
Circuit
Tullberg appeals
judgment
Court.2
his
of conviction and
request
post-conviction
the denial of his
for
relief.
Specifically,
argues
he
that the circuit court erred when
suppress
it denied his motion to
a warrantless blood
light
He
draw.
seeks our review in
of Missouri v.
(2013).
McNeely,
accident. intoxicant, influence of an vehicle, was under the among things, criminally responsible for, other and was being fatality. denied the driver. being treated at the hos- 3. While deputy hospital pital, instructed staff a sheriffs Tullberg argues perform draw. a warrantless blood suppressed been draw evidence should have blood the blood draw was an unreasonable search because He ar- and thus unconstitutional. without a warrant gues good apply this that the faith doctrine does not case. argues The that the blood draw was a State supported by it both
constitutional search because was exigent cause and circumstances. The State that, further asserts if circumstances did not good exist, nonetheless allowed the faith doctrine *7 blood test result to be admitted into evidence.3 suppress
¶ 5. We conclude that the motion to was properly denied because the warrantless draw of Tullberg's supported by probable blood was cause and Because conclude that the circumstances. we constitutional, need not the blood draw was we address good exception. faith
I. FACTUAL BACKGROUND
July
¶
30, 2009,
in a
6. On
was involved
County
fatal,
accident in Shawano
his
one-vehicle
when
flipped
road,
rock,
truck ran off the
struck a
one or two
times,
rock,
and came to
70 feet from the
on the
rest
pinned
M.A., deceased,
under the
driver's side.
faith doctrine in a similar case. See
applied
good
We
Kennedy,
WI 132,
State v.
359 Wis.
¶ M.A., A.M., 7. and C.M. were in the riding truck at the M.A., time of the accident. who was flipped in the truck bed, fell out when the truck over. spent approxi- After accident, and A.M. mately looking M.A., minutes for but to no avail. C.M.looked for M.A. for a few minutes and then left the probation. scene because he inwas violation of his Shortly Tullberg's Joseph thereafter, brother, ("Hauke"), Hauke arrived at the accident scene and gave Tullberg Tullberg's and A.M. a ride to mother's approximately house, which is located five miles from Tullberg's gave Tullberg the accident scene. mother Langlade Hospital A.M. a ride to the Memorial Antigo, away. which is about 20 miles At 12:53 a.m., report father called 9-1-1 to the accident, shortly and Hauke did the same thereafter. approximately 9. At a.m., 12:55 Sheriff Hoffman") ("Deputy Justin Hoffman of the Shawano County Department dispatched Sheriffs to the deputy accident scene. At a.m., 1:03 arrived at the spent readily scene and the next 30 minutes there. No occupants observable or witnesses were at the scene. rocky, steep, The terrain was wooded, and he ultimately described it as hazardous. *8 body pinned discovered M.A.'s under the driver's side of box, Also known as a a large cargo truck bed is the area in truck, the back of the located behind the cabin area intended for passengers. photographs investigated and took After he
the truck. firefighters minutes, and for five to ten of the scene persons emergency at the arrived mediсal services scene. investigating Deputy
¶ Hoffman was 10. While Tullberg scene, father, Melvin the accident ("Melvin"), very shaken arrived at the scene. Melvin was speaking frantically. Deputy up He told Tullberg Tullberg and Deputy the truck and that owned gone hospital. Melvin told A.M. had to the Tullberg, according that, to Hoffman several times passenger riding in bed of the truck was who was Tullberg spent missing. several Melvin stated implored looking passenger and for this minutes Deputy for him. Melvin said that Hoffman to look say of the did not whether he was driver began along to truck it crashed. Melvin walk when heading the crash site. roadside as if he was toward Deputy to be Because Hoffman did not want Melvin physically guided scene, he near a traumatic crime squad to wait near his car. Melvin then received Melvin phone phone call from Hauke and handed Deputy Deputy Hauke told Hoffman that Hoffman. Langlade Memorial and A.M. were headed to Hospital. Bradley Sergeant Deputy 11. When Schultz Wizner") ("Sergeant arrived at
Michael Wizner go Lang- Deputy to the scene, accident Hoffman left Hospital. spent approximately lade Memorial He driving hospital. to the minutes Langlade at Me- Hoffman arrived Hospital 2:00 a.m. and interviewed Tull- morial around berg approximately ten minutes later. This interview approximately ten minutes. told lasted driving it M.A. the truck when Hoffman that *9 Tullberg and crashed did not know M.A.'s last Tullberg only name. stated that he knew M.A. for three days and never let M.A. drive his truck before that night. Tullberg passenger said he was in the seat of the happened truck when accident and that he did not Tullberg remember how he exited the truck. said that passenger's airbag deployed. Tullberg side stated may person that a fourth have been in the truсk. Deputy Tullberg appeared Hoffman noticed that by airbag have been struck Tullberg's right an because hair on singed forearm was consistent with airbag Tullberg friction from an and because smelled deployed airbag. like the residue from a Tullberg Deputy ¶ 13. admitted to Hoffman that night, specifically, he consumed alcohol a mixed "Jáger interviewing drink and a bomb."5 While Tull- berg, Deputy Tullberg Hoffman noticed that had an speech, intoxicants, odor of slurred and bloodshot and eyes. glassy Deputy facts, Based on these Hoffman determined that was intoxicated. Deputy spent approximately
¶ 14. Hoffman next interviewing five to ten A.M., minutes who was in a Langlade Hospital. different room in the Memorial happened, A.M. said that when the accident in she was driving truck, truck, the bed of the M.A. was riding passenger's seat. interviewing ¶ 15. After A.M. and while still at hospital, Deputy telephoned Sergеant gather Wizner to information about the accident scene. Sergeant airbag told Wizner Hoffman that the passenger's deployed on the airbag side had not and that the deployed. Sergeant
on the driver's side had Jáger by A dropping glass bomb is made a shot (a Jágermeister 70-proof liqueur) glass energy into a of an drink, Energy®. such Red Bull® as or Monster lying on its the truck was confirmed that
Wizner intact side window was side and that its driver's driver's partially rolled down. concluded that Hoffman thereafter to believe that he had cause *10 at the time of the driver of the truck intoxicated and Deputy determina- Hoffman based this the accident. airbag passenger's did not side tion on fact that airbag deploy. Tullberg deploy did side but the driver's right airbag appeared struck him because his as if an airbag singed like and he smelled forearm hair was Deputy Further, Hoffman determined residuе. though driver, that M.A. was even said M.A. could not have been indicated that the evidence pinned the driver's M.A. underneath the driver. accident truck, the evidence from the side of the and ejected that M.A. could not have been scene showed Specifically, the driver's side window from the vehicle. partially M.A., intact and rolled down. whose was weight Deputy between 240 Hoffman estimated was through pounds, fit the win- and 250 could not have opening. M.A. could not have been the driver dow pinned then under the driver's side of vehicle being ejected There was no from the vehicle. without ejected. Also, indication that he could have been Deputy any airbag did detect residue on Hoffman not M.A. Simply stated, a of the information as result
Deputy from his observations and Hoffman learned Tullberg, coupled the evidence at the interview of with Deputy Hoffman determined that accident, scene of the operated while intoxi- had the motor vehicle cated. and circumstances of 18. Because of the facts investigation, Deputy did not follow stan-
this protocol operating dard for an under the influence sobriety arrest. He did not administer field tests, issue Tullberg, Informing citation, arrest or read the Tullberg.6 Deputy Accused form to Hoffman testified procedure that he did not follow the standard because, among things, Tullberg's other medical condition was hospitalized unknown, after a serious car personnel perform accident, and medical needed to ("CT scan") Computerized Tomography scan on Tull- berg immediacy. with some
¶ 19. More than two and a half hours after the
accident,
Hoffman instructed medical staff to
Tullberg's
testing.
draw two vials of
blood for
He did
not have a warrant.
Hoffman believed that
Tullberg's
urgently
blood needed to be
because,
drawn
training,
based on his
he believed the
alcohol
rapidly dissipating
bloodstream was
training, Deputy
time was of the essence.
on
Based
his
*11
suspected
Hoffman knew that a
drunken driver's blood
should be drawn within three hours of an automobile
accident in which the driver was involved.7 At 3:05
hospital
Tullberg's
a.m.
staff drew
blood. The blood test
Tullberg's
results indicated that
blood alcohol concen-
("BAC")
legal
0.141,
tration
above the
limit.
6 Tullberg
object
However,
did not
to the blood draw.
argue
State does not
consented to it.
7 If a blood sample is taken more than three hours after an
accident,
automobile
the blood draw evidence is admissible
only
expert
if an
See Wis. Stat.
accuracy.
testifies
to its
885.235(3)
(2009-10).
885.235(1g),
§§
All subsequent
refer
ences to the Wisconsin Statutes
are to the 2009-10 version
Bohling,
See also State v.
unless otherwise
indiсated.
173
529, 546,
abrogated
(1993),
Wis. 2d
on other
tial and was by plaint with six offenses: homicide intoxicated use of second-degree homicide,9 vehicle,8 motor reckless two a causing injury,10 operating counts of while intoxicated report crime,11 failure to aid a victim or a and obstruct- ing August preliminary 19, 2009, an officer.12On a hearing and was bound over for was conducted August 21, An filed on 2009. The trial. information was complaint only in that it information differed from second-degree charge replaced the reckless homicide charge by of homicide use of a vehicle with a with prohibited concentration,13
alcohol included a new charge resulting death,14 of hit and run omitted complaint's charge of failure to aid victim or report August 24, 2009, a crime. On the State filed an charges in amended information that included the six operating the information and added two counts of prohibited with causing injury15 alcohol concentration 8 940.09(l)(a). § Contrary to Wis. Stat. 9 940.06(1). Contrary § to Wis. Stat. 346.63(2)(a)l. Contrary § count to Wis. Stat. One was for injuring injuring A.M. and the other count was for C.M. 940.34(2)(a). Contrary § to Wis. Stat. This count was for failing to aid M.A. 946.41(1). § Contrary to Wis. Stat. 940.09(l)(b). § Contrary to Wis. Stat. *12 346.67(1). § Contrary to Wis. Stat. 346.63(2)(a). § Contrary to Stat. The victims of these Wis. counts were A.M. and C.M. report
one count of failure aid a victim or a crime. On August Tullberg arraigned 2009, 24, was and entered pleas guilty. of not January McNeely 19, 2010, 22. On before suppress
decided, filed a motion to the blood argued, alia, test He results. inter that the blood draw performed was unconstitutional because it was not in compliance legally protocols, recognized with not done pursuant implied pursuant consent lаws or to a express warrant, consent, not done with his and not justified exigent by May 25, 2010, circumstances. On hearing Tullberg's suppres- the circuit held a on court hearing presented sion motion. After the evidence considering arguments counsel, the circuit court exigent concluded that circumstances the war- sup- rantless draw. blood The circuit court denied pression motion. through April
¶ 23. On March 28 1, 2011, Tull- berg jury. jury was tried before a The found guilty May 31, of six counts. On 2011, the circuit court Tullberg. sentenced February 3, 2012, 24. On filed a mo- post-conviction seeking relief,
tion for trial. He new argued, deny- alia, inter the circuit court erred ing Tullberg's suppress motion to the blood draw evi- dence because blood draw unconstitutional. On June the circuit court denied the motion for post-conviction proceedings relief. These occurred also McNeely before was decidеd. Tullberg appealed
¶ 25. his conviction. On June appeals upheld 25, 2013, the court of the circuit court's judgment denying of conviction and order his motion post-conviction appeals for relief. court of The reasoned that both cause and circumstances *13 McNeely decided before supported draw.16 the blood appeals its decision. issued court of Tullberg petitioned July this 2013, ¶ 17, 26. On granted February 19, 2014, we On for review. court clarify requests petition the law review to The review. McNeely. exigent relating under circumstances OF REVIEW III. STANDARD deny granting or ¶ review of an order 27. "Our question presents suppress ing evidence a motion to Robinson, 80, 2010 WI fact." State v. of constitutional (citing State v. 463 ¶ 302, 2d 786 N.W.2d 22, 327 Wis. 280, Hughes, ¶ 2d 607 24, 15, 233 Wis. 2000 WI 621). question presented with a "When N.W.2d two-step engages in a fact, this court constitutional (citing ¶ Pallone, 77, 27, inquiry." 2000 WI v. Id. State Hughes, 2d 568; 233 Wis. 162, 2d 613 N.W.2d 236 Wis. 15). find ¶ the circuit court's "First, we review 280, ings standard, deferеntial fact under a of historical clearly they upholding erroneous." Id. are them unless omitted). (citations apply independently "Second, we (citations principles facts." Id. to those constitutional omitted). two-step inquiry apply deter
¶ when this 28. We mining a war circumstances whether ¶ Richter, 58, 26, 2000 WI search, State v. rantless enforce 29, and whether a law 524, 2d 612 N.W.2d Wis. Popke, cause, State v. had ment officer 569. 765 N.W.2d 10, 317 Wis. WI not other issues appeals also resolved The court to this court. petitioned
IV ANALYSIS "The Fourth Amendment to the United I, States Constitution and Article 11 of Section Wisconsin protect '[t]he Constitution of the right people *14 to be in their houses, secure and persons, papers, effects, searches against unreasonable and seizures.'" (citations omitted).17 Robinson, 302, Wis. 2d 24 327 ¶ "The touchstone the Fourth Amendment is reason- Jimeno, (1991) ableness." Florida v. 500 U.S. 250 248, (1967)). States, v. United Kаtz 389 (citing 347, U.S. 360 "The Fourth Amendment does not all proscribe state- seizures; initiated searches and it proscribes merely Id. those which are unreasonable." Illinois v. (citing (1990)). Rodriguez, 497 U.S. 177 17The Fourth the Amendment to United States Constitu provides tion in full: right people persons, houses, of the in The to be secure their effects,
papers, against seizures, and unreasonable searches and violated, issue, upon shall not he and shall no Warrants but probable cause, supported by affirmation, particularly Oath and or describing place searched, persons things to be and or to be seized. I, Article 11 of the Section Wisconsin Constitution states: right people houses, persons, of the The to he secure their papers, against and effects seizures unreasonable searches and violated; probable upon shall not be and no shall issue but warrant cause, by affirmation, supported particularly oath or describ- ing place persons things he searched and the or to be seized. generally interpret We provision the search seizure of our Supreme state constitution consistent with United States Court's interpretation of the Fourth Amendment. State v. Robinson, 80, n.11, 302, WI 24 327 2010 Wis. 2d 786 N.W.2d ¶ (citations omitted). 463
437
presumptively
¶
un
A
search is
30.
warrantless
Henderson,
97, ¶ 19,
WI
245
reasonable, State v.
only
613,
constitutional
345,
2d
and is
Wis.
N.W.2d
require
exception
warrant
if it
an
to the
falls under
Krajewski,
¶ 24,
2d
ment,
2002 WI
255 Wis.
State v.
exception
One
to the warrant
98,
is a search within the of the Bentley, 860, 863-64, ment. State v. Wis. 1979). (Ct. App. warrantless, A nonconsen N.W.2d153 suspected complies driver sual blood draw a drunken (1) if: there with the Fourth Amendment of a cause to believe the blood would furnish evidence *15 (2) exigent crime; the blood was drawn under circum (3) in a the reasonable stances; blood drawn (4) object suspect reasonably did to not manner; and App ¶ Erickson, 43, 9, draw. State v. 2003 WI blood 279, 407; 260 2d N.W.2d Schmerber v. Wis. 659 Califor (1966). nia, 757, 384 U.S. 769-71 ¶ first 32. We examine whether probable hospital staff draw had cause to instruct to Tullberg's blood. Next we consider whether justified draw. circumstances warrantless blood his in a has conceded that blood was drawn reasonably manner and that he did not reasonable object Finally, analyze Tullberg's blood to the draw. we argument suspected that a driver must be drunken may his her be arrested before or blood drawn without 438 probable We a search warrant. exigent conclude that сause and circumstances the warrantless blood not be draw. did need to under arrest before his blood could be drawn.
A. Probable
to
Cause
Search
probable
¶
"In
context,
the search
cause re
quires
probability'
a 'fair
that contraband or
evidence
particular place."
Robinson,
crime will be
in a
found
(quoting Hughes,
¶
327
2d 302,
Wis.
26
233 Wis. 2d
21)
omitted).
(quotation
probable
¶
280,
marks
To have
suspect,
cause to search a
a law enforcement officer
reasonably
must be aware of and
believe evidence that
suspect's guilt
shows the
aof
crime is more than a
possibility, although the evidence need not show the
guilt
suspect's
likely
is more
than not. State v. Richard
(1990)
son,
128, 148-49,
156 Wis. 2d
456
830
N.W.2d
(citing
Nordness,
State
15, 35,
v.
128
381
Wis.
N.W.2d
(1986);
Paszek,
300
v.
619,
State
50 Wis. 2d
184
625,
probable
(1971)).
836
N.W.2d
To determine whether
existed,
cause to search
a court determines whether law
reasonably. Robinson,
enforcеment acted
2d Wis.
(citing Rodriguez,
¶ 302,
185;
497 U.S. at
Illinois v.
(1983); Hughes,
Gates,
213,
462 U.S.
233 Wis. 2d
23).
reviewing
totality
¶
A
280,
court considers
circumstances
determine whether
cause
Ward,
3,
search existed. State v.
2000 WI
(citing
DeSmidt,
Wis. 2d
eyes relying sign intoxication, on a are not of National study Highway Safety re Traffic and Administration garding accuracy of law enforcement clues is use to determine whether someone intoxic officers study argues The that law enforcement officers ated.18 eyes glassy not to be an should consider bloodshot eye such conditions indicator intoxication because may allergies by However, the be caused or shift work. Stuster, Transportation, Department U.S. Jack Report, Final The DWI at BACS below NHTSA Detection of 1997) 0.10, (Sept. at 14 and E-10. DOT HS-808-654 *17 study not does conclude that intoxication does not eyes glassy. cause become bloodshot and We reaffirm may that a law enforcement officer consider bloodshot eyes glassy and to be one of several indicators of though eye descriptors may intoxication, even such explanation. Robinson, have an innocent See (" '[IJnnocent' frequently Wis. 2d behavior cause.'") provide showing probable will the basis for n.13). (quoting Gates, 462 atU.S. Deputy reasonably
¶ 36. Hoffman also believed Tullberg operator that was the the truck it when Again, deputy rely crashed. did not on one fact Tullberg supports First, alone. Deputy truck, оwned the which Hoffman's view he Second, driver. airbag deployed only an on the side truck, driver's of the Tullberg appeared airbag and Specifically, as if an him. struck airbag
he looked like an struck him because right singed the hair on his forearm was consistent with deploying airbag. airbag friction from a He smelled like suggests airbag residue, also which that the struck him. Deputy Hoffman made these about observations Tullberg's appearance interviewing him, while and Deputy subsequently Hoffman confirmed Ser- with geant telephone airbag Wizner over the that an de- ployed only on the Thus, driver's side of the truck. Deputy reasonably Hoffman concluded that the driver's airbag Tullberg. Deputy side Third, struck Hoffman determined that A.M. was not the driver of the truck singed because she did not have hair on either arm or airbag Finally, Deputy smell like residue. Hoffman reasonably believed that liеd when he said passenger that he was the and M.A. was the driver of Specifically, only the truck it crashed. not did when airbag evidence indicate that driver, was the Deputy body pinned but Hoffman knew that M.A.'s that the driver's side window the truck and
underneath partially rolled down. was intact of the truck weight to be between Hoffman estimated M.A.'s pounds determined that M.A. could 240 and 250 through ejected from truck have not been opening. Further, father told window person who was said that *18 riding truck crashed was in the truck bed when the Deputy missing, M.A. Hoffman discovered that was missing person. Deputy Hoffman did not smell the airbag evidence, of Based on all this residue on M.A. Tullberg reasonably Deputy was Hoffman believed that it crashed. the driver of the truck when reasonably Deputy ¶ be- 37. Because Tullberg Tullberg and that that was intoxicated lieved crashed, it he had truck when the driver the was operated probable to that had cause believe intoxicated.19 motor vehicle while Relying Seibel, 2d on v. 163 Wis. 38. State (1991), Swanson, v. 164 N.W.2d 226 and State 471 (1991), Tullberg argues 148 2d 475 N.W.2d Wis. present do in case not establish the facts that operating probable while intoxicated. cause that he was factually argues First, he that is similar this Seibel that had case, and in Seibel this court held an officer operating suspicion that the defendant was reasonable Tullberg argues that, because rea- intoxicated. while have Tullberg argues that Hoffman should inves have in person might claim that a fourth been tigated However, Tullberg argue not truck when it crashed. does person this fourth was he told Hoffman that that crashed even that he said this driving truck when it or in the Even if had person definitely was truck. fourth person driving the truck when it claimed this fourth crashed, probable had cause to believe Deputy Hoffman still Tullberg was driver. that
sonable
is a
suspicion
lesser burden of
than
proof
probable cause, there was no probable cause in Seibel.
in
this
However,
court
Seibel never determined whether
in
facts
that case established probable cause that
the defendant
operating
while intoxicated. See
Seibel,
Swanson held that erratic
and a
driving
subsequent
automobile accident around the time that bars close did
not constitute
probable cause
while intoxi-
operating
cated.
he
By analogy,
argues that probable cause was
in the
lacking
case.
present
Tullberg misinterprets
Swanson. The court
in Swanson
declined to
expressly
determine
probable
Swanson,
whether
cause existed.
Instead,
Wis.
at 453 &
in
n.6.21
the issue
Swanson,
In a footnote in
passing
this court stated in
the Seibel court held that
did
cause
not exist
*19
Swanson,
437,
n.6,
that case. State v.
164 Wis. 2d
453
475
(1991).
N.W.2d148
This
in
statement
Swanson is incorrect. The
court in
probable
Seibel did not even
cause
consider whether
Seibel,
164,172-83,
State
existed. See
v.
163 Wis. 2d
N.W.2d
471
(1991).
226
21
any event,
present
In
case has more evidence of
intoxication than
or
Seibel
Swanson did. In Seibel
court
this
held
suspicion
that an officer had
that
reasonable
Seibel was
operating while intoxicated
driving
because Seibel was
errati
cally,
accident,
he caused a car
police officers smelled intoxi
emanating
traveling companions,
cants
from Seibel's
police
a
thought
Seibel,
officer
he smelled
on
intoxicants
and Seibel was
Seibel,
belligerent.
443
ex-
Swanson was whether
the search-incident-to-arrest
a
search
requirement
to the warrant
ception
Id. at 441-42.
an arrest.
that preceded
argues
also
Tullberg
40.
Tullberg
to determine that
lacked
cause
probable
Tullberg did not
while intoxicated because
operating
notes that field
a field
test.
perform
sobriety
probable
determinations
of
tests
sobriety
preceded
Colstad,
in State v.
25,
2003
260
2d
App
WI
Wis.
cause
Begicevic,
and State v.
2004 WI
394,
659
406,
N.W.2d
675,
However,
270
2d
678
57,
Wis.
N.W.2d
App
a
acknowledges that
brief, Tullberg correctly
his reply
a field
officer need not administer
law enforcement
a
test
in order to have
cause that
sobriety
probable
Kasian, 207
E.g.,
while intoxicated.22
operated
suspect
intoxicants,
case,
admitted to
present
smelled of
alcohol,
speech,
consuming
had
and had bloodshot and
slurred
glassy eyes.
22However,
brief,
argue
opening
in his
seems
in Swanson held that a field
sobriety
court
test
is
this
probable
operating
in order to
cause of
while
required
establish
Swanson,
In a footnote in
this court stated: "Unex
intoxicated.
alcohol,
driving,
the coincidental
plained erratic
the odor
suspicion
form the
for a
time of
incident
basis
reasonable
test,
not,
sobriety
a
in the absence of
field
constitute
but should
driving
under
probable cause to arrest someone for
while
Swanson,
2d at 453 n.6.
influence
intoxicants."
Wis.
we later clarified that "Swanson did not announce
However,
a
general
sobriety
rule
tests
in all
as a
requiring field
cases
a
рrerequisite
establishing probable cause to arrest
driver
for
under
of an
operating
for
a motor vehicle while
the influence
Smith,
23,
Cnty. v.
intoxicant." Washburn
WI
Kasian,
see also State v.
243;
2d
Wis.
Wis.
746 N.W.2d
(Ct.
1996)
Swanson
611, 622,
App.
(stating that
stancеs."23 investigations police driving can officers where sample reasonably a blood can a before obtain warrant undermining significantly the effi- be drawn without cacy mandates search, Amendment of the the Fourth differently, they al- at 1561. Stated do so." Id. that though dissipation in the of of alcohol bloodstream the suspected constitute an driver alone does not a drunken suspect's justifying exigency draw the of warrantless justify may totality of the circumstances blood, the ("[S]ome circumstances See id. blood draw. warrantless obtaining impractical the such that make a warrant will support dissipation the will alcohol from bloodstream of properly exigencyjustifying a conducted warrantless an test."). McNeely changed landscape the of blood While Wisconsin, note the in we warrantless blood draws Supreme room for warrantless Court left United States exigencies in fact, In the Court if exist. blood draws "exigent" "exigency" McNeely no or fewer used the term today majority opinion. Thus, in we than ten times the totality the whether, the of circum- under determine justified the warrantless stances, circumstances draw. blood totality the
¶ that, of 43. We conclude under blood was circumstances, the draw by exigent A enforcement reasonable law circumstances. and these with this accident scene officer, confronted reasonably conclude that total- circumstances, would ity rendered a warrantless blood of the circumstances necessary. draw circumstances, totality no consider the Because we WI 24, Hughes, 2000
single dispositive. fact is See State v. 607 N.W.2d 233 Wis. outset, 44. At the note we Hoffman delay improperly obtaining
did not in a warrant. He did Tullberg oper- not have cause to believe that ated the motor vehicle while under the influence of an nearly intoxicant until three hours after If the accident. anything, Tullberg's deputy's, than actions, rather necessitated the warrantless blood draw. dispatched early
¶ 45. *22 morning to a hours horrific accident which involved fatality. rocky, The accident wooded, scene's terrain was steep, trying. No witnesses were available to be investigated interviewed. After he the scene for five to firefighters emergency minutes, ten medical services persons shortly by arrived, followed thereafter the ar- Tullberg's Deputy rival father, frantic Melvin. Hoff- reasonably backup, man called for scene, secured the spoke Melvin, talked with with brother over phone, go the hospital and determined that he to needed to the investigate
to further. ¶ 46. We observe that went from the accident scene to his mother's house and then to a hospital county. Tullberg's hospitalization in another required Deputy spend driving Hoffman to 30 minutes hospital, delaying from the accident scene to the further ability Tullberg. Schmerber, his to interview See 384 U.S. (holding justified at 770-71 that circumstances suspected warrantless draw of drunken driver's blood partly hospital because the defendant went to a after a accident). car hospital, Tullberg At 47. and A.M. tried to deputy believing
mislead into deceased, that M.A., was the driver of truck when it crashed. Tullberg falsely stated that M.A. was the driver.24This 24Tullberg obstructing lying convicted of an officer for Hoffman.
deception deputy required conduct additional investigation who the driver of in order to determine Specifically, of the accident. at the time the vehicle was question required Deputy deception Hoffman to this driving to call the truck and A.M. about who Sergeant about the learn more information Wizner to driving Ulti- the truck. to determine who was accident mately, Deputy Hoffman had cause to believe operated in- while had motor vehicle that only after than two and a half hours toxicated, but more (holding exigency that at the accident. See id. suspected drunken draw of warrantless performed hours more than two driver's blood that was accident). Deputy Hoffman, confronted with after car and obstruction of his investi- an accident scene such reasonably. gation, conducted himself draw, Furthermore, at the time of the blood hospital staff was about to Hoffman knew Tullberg. procedure perform The could a CT scan on very time, taken a considerable amount well have CT could have revealed and the scan *23 subsequent The medical treatment. needed immediate than two and a half hours blood draw occurred more had Thus, accident. if the blood draw occurred after the scan, could have occurred the CT the blood draw after training, long accident, on his after the if ever. Based sample Deputy a Hoffman knew that motorist's blood within three hours of an automobile should be taken accuracy admissibility to its and as accident ensure Deputy Hoffman therefore determined evidence. Tullberg's before the CT scan needed to be drawn blood three of the drawn within hours to ensure blood was Deputy Hoffman did not Moreover, accident. because subsequent lead to know the CT scan would whether delaying the treatment, he determined that medical CT blood draw until after the scan could result occurring blood draw much later than three hours after accident, the Deputy if ever. Under these circumstances, "reasonably obtain[ed]
Hoffman could not have significantly undermining a warrant. . . without efficacy McNeely, . . search . .”25See 133 S. atCt. Deputy
¶ 49. A officer, law enforcement such as Hoffman, who is confronted with an scene, accident emergency should first attend to the at circumstances Deputy properly spent hand. 30 minutes in- vestigating Schmerber, the accident scene. See 384 U.S. (holding at 770-71 circumstances suspected warrantless draw of drunken partly driver's blood because officer needed to investi- gate accident); McNeely, a the scene of car 133 Ct. at S. ("the police need for the to attend a to car exigency analysis may accident" is one factor that the consider). Deputy spend Hoffman did not an unreason- able amount of time at the accident scene. He was the persоn respond accident, first to to the he a discovered body truck, under the to he had interact with get Tullberg's blood, To a warrant draw Hoffman would have dispatch, needed to contact inwho turn prosecutor would have contacted a for prosecutor him. The would a have contacted staff member from the district attorney's office, together they prepared would have application. prosecutor warrant The then would have contacted In judge. light process, Deputy of this Hoffman could not have scan, Tullberg's obtained a warrant draw blood before the CT Tullberg urgently Performing which needed. a blood draw on Tullberg after the CT significantly scan would have under efficacy mined the the blood draw. We note that Hoffman could not have had other officers assist him in obtaining investigated a warrant while he the accidеnt because he did not have cause to have blood drawn *24 immediately it until before was drawn.
449 emergency Tullberg's father, Melvin, and other frantic personnel. owned the not know that He did scene, he did not arrived at the until Melvin vehicle spoke he with until know where directly Tullberg's headed to Hoffman brother. hospital arrived enforcement officers once other law scene, An accident scene to relieve him. at the accident exigent circum- issue, can create as the one at such justify warrantless blood draw. which would a stances totality Viewing cir- of these facts and reasonably responded cumstances, Hoffman investigated scene, matter, accident, secured the very ultimately frame narrow time was left with as to blood could be drawn so in which produce of intoxication. This sort of reliable evidence exigent epitome is of an "now moment or never" ("The McNeely, circumstance. Ct. See 133 S. at 1561 respects testing in critical is different context blood in which the cases from other destruction-of-evidence truly police a 'now or never' situa- are confronted with tion.") (quoting Kentucky, v. U.S. Roaden omitted). (1973)) (quotation However, do marks we not suggest would that a warrantless blood draw mean to always require in order to be a "now or never" situation by exigent Rather, cir- circumstances. delaying justify if a warrantless blood draw cumstances "significantly undermin[e] [its] draw the blood would efficacy." in the id. The "now or never" moment See quite clearly present meets that test.26 case sample more than particular, although In blood taken evidence, be as three hours after an accident can admissible allowing Tullberg reasonably Deputy concluded undergo undergoing before a blood draw would a CT scan efficacy" "significantly undermin[ed] the of the blood draw. have 1561; also id. at 1560-61 McNeely, See 133 S. Ct. at see *25 foregoing on 51. Based the discussion, we con- clude that circumstances the warrant- Tullberg's less draw blood. Hoffman acted reasonably and the touchstone the Fourth Amend- Robinson, ment is reasonableness. See 327 Wis. 2d McNeely, ¶ 26; 133 S. atCt. 1558-60. Necessary
C. Arrest Not Tullberg argues ¶ 52. that the warrantless draw of his blood was unconstitutional because he not was disagree. the arrested before blood draw. We Specifically, argues ¶ 53. that Schmerber Bohling, State v. Wis. 494 N.W.2d399 (1993), required suspect an officer to arrest a before having sample Although a of his or her blood taken. in defendant sample Schmerber was arrested before his blood Supreme taken, Court in Schmerber suggested never that a warrantless blood draw would be performed subsequent unconstitutional unless to an Supreme McNeely In fact, arrest. Court stated " emergency, [a is] 'absent an search warrant required body where intrusions into the human are concerned,1 even when the search conducted follow ing McNeely, a lawful arrest." 133 S. at Ct. 770). (quoting quote sug Schmerber, 384 U.S. at This gests exigency that an renders a blood warrantless draw ("[BJecause an gradually individual's alcohol level declines soon stops after drinking, significant delay he in testing will id. at 1563 negatively probative results."); affect the value of the ("While experts can work at backwards from the BAC the time sample was taken to determine the BAC at the time of the offense, alleged longer may questions intervals raise about calculation."). accuracy of the regardless draw is of whether the blood
constitutional, subsequent performed arrest. to lawful Bohling mis- is also reliance on Bohling, placed. court held In this sample taken at the direction of a blood a warrantless permissible under the follow- officer is law enforcement (1) the blood draw is taken obtain ing circumstances: *26 lawfully a arrested person from evidence of intoxication crime,%rl%r drunk-driving or related violation for a (2) the draw will there a clear indication that blood is (3) intoxication, of the method used to produce evidence per- a one and sample the blood is reasonable take (4) manner, and in reasonable arrestee formed objection to the blood draw. no reasonable presents Bohling, In one, at footnote 173 Wis. 2d 533-34. explained "[pjrobable cause arrest that substi court predicate of Id. at 534 for act lawful arrest." tutes 863-64). Tullberg (citing Bentley, 2d at n.1 92 Wis. Bentley inapposite argues it that because was аbro is McNeely gated by McNeely. expressly Indeed, the Court dissipation Bohling's holding abrogated of alcohol suspected driver in the of a drunken bloodstream exigency. McNeely, categorically 133 constitutes an See Kennedy, 132, 2014 WI n.2; S. Ct. at 1558 & State v. ¶ However, 834. 29, Wis. N.W.2d holding Bentley McNeely in Court left intact the Bohling precede need not a warrantless that an arrest blood draw. provides sum, Fourth Amendment In protection not
sufficient that an arrest need such precede prob- draw. When there is warrantless blood draw, there in the case at able cause for a blood as is probable operat- to arrest for issue, there also is cause ing prerequisite An while intoxicated. arrest is not a probable by a warrantless blood draw cause circumstances. Accordingly, ¶ 56. we reaffirm an of a arrest suspected precede drunken driver need not a warrant- suspect's less draw the blood order for the blood be Erickson, draw to constitutional. See Wis. 2d ¶¶ 5-12.
V CONCLUSION suppress 57. We conclude that the motion to properly denied because the warrantless draw by supported blood was cause and exigent circumstances. Because we conclude that the constitutional, blood draw was we need not address the good exception. faith
By appeals the Court.—The decision of the court of is affirmed. (concur
¶ 58. SHIRLEY S. ABRAHAMSON, C.J.
*27
ring).
part
trilogy
The instant case is
of a
of cases
examining
constitutionality
of warrantless, noncon
performed
persons suspected
sensual blood draws
on
driving
light
under
an
the influence of
intoxicant in
(2013).
McNeely,
Missouri v.