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00-3419 State v. Wodenjak

By: dmc-admin//August 6, 2001//

00-3419 State v. Wodenjak

By: dmc-admin//August 6, 2001//

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“We appreciate the factual distinctions between this case on the one hand and [State v.] Bohling [173 Wis.2d 529 (1993)] and [State v.] Thorstad [2000 WI App 199 (2000)] on the other. But we nonetheless conclude that the holdings of those cases govern here. Bohling recognizes that the dissipation of alcohol from a person’s blood constitutes an exigent circumstance justifying a warrantless blood draw subject to certain conditions. Bohling, 173 Wis.2d at 533. Thorstad states that both Bohling and Schmerber hold that a blood test performed in a medical setting satisfies both the ‘reasonable method’ and ‘reasonable manner’ requirements of the law. Thorstad, 2000 WI App 199 at ¶15. Wodenjak does not cite to any law, and we otherwise know of none, which holds that the availability of less invasive alternate tests changes the holding of these cases or that the police must consider such alternate tests when deciding whether to obtain a blood draw from a suspect.

“In summary, both the United States Supreme Court and the Wisconsin Supreme Court have put their constitutional stamp of approval on the warrantless taking of a blood draw subject to certain conditions and controls. Those conditions and controls do not require the police to consider alternate tests. Therefore, Wodenjak’s request for the less invasive breath test and the availability of such a test did not deprive Berg of his authority to obtain a blood sample from Wodenjak under Bohling.”

The judgment denying defendant’s motion to suppress is affirmed.

Recommended for publication in the official reports.

Dist II, Winnebago County, Carver, J., Nettesheim, P.J.

Attorneys:

For Appellant: Rex Anderegg, Milwaukee

For Respondent: Robert L. Sager, Oshkosh

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