Both breath, blood tests cannot be taken

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“Unless law enforcement has some basis for believing the first test is unreliable or unusable, the exigent circumstances permitting law enforcement to conduct a forcible blood draw no longer exist.” Hon. Richard S. Brown Wisconsin Court of Appeals

Once an individual arrested on probable cause for OWI has provided a satisfactory and useable breath test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist, the Wisconsin Court of Appeals held on Oct. 1.

On Feb. 19, 2002, Sheboygan police officer James Olsen conducted a traffic stop and suspected the driver, Jacob J. Faust, of being intoxicated. After Faust failed field sobriety tests, Olsen administered a preliminary breath test which returned a result of a .13 BAC.

Olsen then transported Faust to the station, where he agreed to provide a sample of his breath for chemical analysis. The breath test reflected a BAC of .09, which was over the legal limit because Faust already had two prior convictions.

Although Olsen was aware that Faust was therefore operating with a prohibited BAC, given his two prior convictions, he advised Faust that he would seek a blood test as well. Olsen read Faust an Informing the Accused form, and Faust refused to consent to a blood test. A forced blood sample was subsequently drawn from him at the hospital, and the sample revealed a BAC of .10.

Faust moved to suppress the blood test results, arguing that, since the breath test had already established that his blood alcohol exceeded the prohibited legal limit, there was no longer any exigency justifying a blood draw without a warrant. Sheboygan County Circuit Court Judge Gary Langhoff agreed and granted the motion.

The state appealed, but the court of appeals affirmed in a decision written by Judge Richard S. Brown, and joined by Judge Daniel P. Anderson. Judge Neal Nettesheim wrote a concurring opinion.

State v. Krajewski

The court concluded that the decision was governed by language of the Wisconsin Supreme Court in State v. Krajewski, 2002 WI 97, 255 Wis.2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089.

Krajewski was arrested on probable cause for OWI. When asked to submit to a blood test, Krajewski refused, citing a fear of needles. Krajewski instead offered to provide a breath or urine sample, but was forced to submit to a blood draw.

Krajewski acknowledged that the rapid dissipation of alcohol in a person’s bloodstream creates an exigency justifying a forcible blood draw when a person refuses to submit to any chemical test, but argued that once the person offers to submit to an alternative chemical test, the exigency disappears and the officer may not proceed with an involuntary test without a search warrant.

The Supreme Court rejected the argument and held that a person’s agreement to submit to a test of the person’s choice does not negate the exigency created by the dissipation of alcohol in the bloodstream, nor does it render unconstitutional a nonconsensual test of the officer’s choice.

The court explained that an arrested person’s offer to submit to one chemical test rather than another does not slow the dissipation of alcohol. The court found that the evidence remains on a course to be destroyed, and that the arrested person could fail to give a sufficient breath specimen or have a change of heart and refuse
altogether to submit to the test.

The court also noted that 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 and a breath test would not reveal the presence of a controlled substance.

Thus, the court held in Krajewski, “The exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken.” Id., par. 40.

Satisfactory and Usable

The meaning of this statement was the issue that the parties in the case at bar disputed.

The State argued that the exigency created by the dissipation of alcohol from the bloodstream does not automatically disappear just because a single valid chemical test for intoxication has been performed. According to the State, the exigency justifying a warrantless blood draw following a valid drunken driving arrest is based on the continuous and rapid dissipation of alcohol from the bloodstream, not the presence or absence of other positive test results.

However, the court concluded, “This argument flies in the face of our Supreme Court’s clear directive in Krajewski.”

The court reasoned, “By its plain language, Krajewski instructs that once a satisfactory and useable chemical test is taken, the exigency created by the dissipation of alcohol is extinguished. This conclusion is logical given the concerns that prompted the Supreme Court’s holding in that case; namely, that the driver would later refuse to cooperate with authorities in submitting to a breath test and/or fail to give a valid breath specimen and, consequently, precious time, during which the evidence would continue to dissipate, risks being lost. These concerns do not come into play once a satisfactory, useable chemical test has been performed — law enforcement would have already collected the evidence it needs. Unless law enforcement has some basis for believing the first test is unreliable or unusable, the exigent circumstances permitting law enforcement to conduct a forcible blood draw no longer exist.”

The court acknowledged that, even if it appeared to police at the time of the arrest that a satisfactory, useable chemical breath test had been administered, the defendant could later successfully attack admission of the breath test.

Nevertheless, the court concluded, “we do not interpret Krajewski as saying that the determination of whether a chemical test is satisfactory and useable is made at the time of trial. Rather, this determination is to be made at the time the blood alcohol is dissipating in the alleged drunk driver’s system — the time at which the Fourth Amendment intrusion is to occur.”

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The court found that there was no evidence that the police were concerned about the breath test being unsatisfactory or unusable. On the contrary, the officer testified that he believed he had obtained a valid and useable sample of Faust’s breath. Nor did the officer suspect that Faust was under the influence of some other controlled substance. Accordingly, the court held that no exigent circumstances justified the blood draw, and affirmed the suppression of the evidence derived from it.

The Concurrence

Judge Nettesheim wrote separately, stating, “With little confidence, I join the majority opinion. My hesitancy about this case stems not from the majority opinion, but rather from the case on which it is founded … In my judgment, Krajewski is internally inconsistent and sends mixed signals. I join my colleagues in this case only because an isolated passage in Krajewski mandates an affirmance and I, like the majority, am bound by the pronouncements of our Supreme Court.”

Nettesheim noted that there is no guarantee a particular breath test will be admissible, nor that the prior convictions will not be challenged. Nettesheim concluded, “Appellate courts someti
mes criticize the police for failing to conduct a thorough investigation. See State v. Kieffer, 217 Wis. 2d 531, 550-51, 577 N.W.2d 352 (1998). Here, we criticize the police for being too thorough. I dislike the result in this case. But given the Supreme Court’s utterance in Krajewski, I see no choice but to affirm. I reluctantly concur.”

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David Ziemer can be reached by email.