99-3165 State v. Clark

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This is so even though the person offers to submit to a chemical test other than the blood test chosen by law enforcement, provided that the blood draw complies with the factors enumerated in State v. Bohling, 173 Wis.2d 529 (1993).

“In Bohling, the court examined the following issue:

[W]hether the fact that the percentage of alcohol in a person’s blood stream rapidly diminishes after drinking stops alone constitutes a sufficient exigency [under the relevant constitutional provisions] to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication.

“This court concluded that under these circumstances, ‘the dissipation of alcohol from a person’s blood stream constitutes a sufficient exigency to justify a warrantless blood draw.’…

“The exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken. Securing a breath test rather than a blood test may not be satisfactory to law enforcement because an officer may want to determine whether the person is also under the influence of controlled substances. Blood samples are the most direct means of measuring alcohol concentration in the blood and of obtaining evidence of controlled substances in the blood. A breath test is not likely to reveal the presence of a controlled substance. In 1994 the court of appeals reviewed a case in which a driver’s blood test showed a blood alcohol concentration of only .049% but the concurrent presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. Having a breath test in hand in that instance would not have eliminated the exigency.”

The decision of the court of appeals approving the blood draw is affirmed.

DISSENTING OPINION: Bradley, J., with whom Abrahamson, Ch. J., joins. “The majority sets forth a blanket rule employing the exigent circumstances exception allowing forced blood draws in OWI cases. Such a blanket exception to the warrant requirement runs afoul of the Fourth Amendment, and renders meaningless the option of ever securing a search warrant for an OWI blood draw. In addition, I write separately to clarify any implication in the majority opinion that exigent circumstances might exist in cases where it is a controlled substance, not alcohol, that allegedly forms the basis for an arrest. Accordingly, I respectfully dissent.”

Court of Appeals, Prosser, J.

Attorneys:

For Appellant: Jennifer E. Nashold, James E. Doyle, Madison

For Respondent: Christopher A. Mutschler, Fond du Lac