Appendix — Faust v. Wisconsin

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APPENDIX A:

State v. Faust, :

2004 WI 99, 682 N.W.2d 371 (July 2, 2004)........... la

APPENDIX B:

State v. Faust,

2003 WI App 243,

267 Wis. 2d 783 (Ct. App. 2003) ......... ieee 36a

APPENDIX C:

Et MDE DO CMIUNED eciccesensctcossscrnsesvasnecassaccsesncsines 50a

_—

State of Wisconsin, Plaintiff-

Appellant-Petitioner, v. Jacob J.

Faust, Defendant-Respondent.

No. 03-0952-CR

SUPREME COURT OF

WISCONSIN

2004 WI 99; 682 N.W.2d 371;

2004 Wisc. LEXIS 474

April 6, 2004, Oral Argument

July 2, 2004, Opinion Filed

[ENTERED: July 2, 2004]

PRIOR HISTORY: [***1] REVIEW OF A DECISION OF

THE COURT OF APPEALS. 2003 WI App 243 Reported at:

267 Wis. 2d 783, 672 N.W.2d 97, 2003 WI App 243 (Ct. App.

2003-Published). Source of Appeal: Court: Circuit. County:

Sheboygan. Judge: Gary Langhoff. L.C. No. 02CT145.

State v. Faust, 267 Wis. 2d 783, 672 N.W.2d 97, 2003 WI App

243, 2003 Wisc. App. LEXIS 927 (2003).

DISPOSITION: Decision of Court of Appeals reversed.

COUNSEL: For the plaintiff-appellant-petitioner the cause

was argued by Mary T. Wagner and Joseph DeCecco, with

whom on the brief was Peggy A. Lautenschlager, attorney

general.

For the defendant-respondent there was a brief by Stephen M.

Seymour, Sheboygan, and oral argument by Stephen M.

Seymour.

JUDGES: JON P. WILCOX, J. ABRAHAMSON, C.J.,

dissents (opinion filed). BRADLEY and PROSSER, J.J., join

dissent. PROSSER, J., dissents (opinion filed).

ABRAHAMSON, C.J. and BRADLEY, J., join dissent.

OPINION BY: JON P. WILCOX

OPINION:

[**373] [*P1] JON P. WILCOX, J. The State appeals

from a published court of appeals decision, State v. Faust, 2003

WI App 243, 267 Wis. 2d 783, 672 N.W.2d 97, [***2] which

affirmed an order of the Sheboygan County Circuit Court, Gary

J. Langhoff, Judge, granting the defendant's motion to suppress

the results of a forced blood draw taken from him that indicated

he was operating a motor vehicle with a prohibited alcohol

concentration.

1. ISSUE

[*P2] The issue presented is whether, under the Fourth

Amendment to the United States Constitution and Article I,

Section 11 of the Wisconsin Constitution, exigent

circumstances exist for a nonconsensual warrantless blood

draw after the police have obtained what the arresting officer

believes to be a voluntary, satisfactory, and useable chemical

breath test indicating that the individual arrested was operating

a motor vehicle with a prohibited level of alcohol

concentration. nl

nl We do not address whether exigent circumstances

would exist if the first test indicates that the defendant's

blood alcohol concentration is within the legal limits.

[*P3] For the reasons discussed below, we reaffirm that

the rapid dissipation of [***3] alcohol in the bloodstream of an

‘ndividual arrested for a drunk driving related offense

constitutes an exigency that justifies the warrantless

nonconsensual test of that individual's blood, so long as the test

satisfies the four factors enumerated in State v. Bohling, 173

Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993). We hold that the

presence of one presumptively valid chemical sample of the

defendant's breath does not extinguish the exigent

circumstances justifying a warrantless blood draw. The nature

of the evidence sought--that is, the rapid dissipation of alcohol

from the bloodstream--not the existence of other evidence,

determines the exigency. Because exigent circumstances were

present in this case and the blood test satisfied the test we set

forth in Bohling, we reverse the decision of the court of

appeals.

[**374] Il. FACTUAL BACKGROUND

[*P4] The operative facts of this case are undisputed. On

February 19, 2002, Officer James Olsen of the Sheboygan

Police Department was on routine patrol and was inspecting the

license plates of vehicles parked behind a local tavern. Upon

checking the plates of a 1998 Chevrolet coupe, Officer Olsen

discovered that the plates [***4] were registered to an Audi

coupe. A short time thereafter, Officer Olsen observed the

vehicle leave the parking lot. Officer Olsen initiated a routine

traffic stop, and the driver of the vehicle, the defendant,

identified himself as one Jacob J. Faust. Officer Olsen noticed a

"strong odor of intoxicants" emanating from the vehicle and

observed that Faust was slurring his speech and exhibited

bloodshot, glassy eyes. Upon questioning, Faust indicated to

Officer Olsen that he had consumed "five brandies" before

driving.

[*P5] Officer Olsen thereafter administered a field

sobriety test that Faust failed to successfully complete. Faust

then voluntarily submitted to a preliminary breath test under _.

Wis. Stat. § 343.303 (2001-02), n2 the result of which

indicated Faust possessed an alcohol concentration of 0.13. n3

Officer Olsen placed Faust under arrest and transported him to

police headquarters. Upon arriving, Faust consented to provide

a sample of his breath for chemical analysis. The results of the

breathalyzer indicated that Faust possessed an alcohol

concentration of 0.09 grams of alcohol per 210 liters of breath.

Officer Olsen then performed a search [***5] of Faust's

criminal driving record, the result of which indicated that Faust

had two prior convictions for operating a motor vehicle while

intoxicated. As an individual with two or more prior

convictions for operating a motorized vehicle while

intoxicated, Faust was subject to the prohibited alcohol

concentration of 0.08. Wis. Stat. § 885. 235(1g)(c-d).

n2 Section 343.303 states, in pertinent part, that "the

result of the preliminary breath screening test shall not

be admissible in any action or proceeding except to show

probable cause for an arrest, if the arrest is challenged, or

to prove that a chemical test was properly required or

requested of a person under s. 343.305(3)."

All subsequent references to the Wisconsin Statutes

are to the 2001-02 version unless otherwise indicated.

n3 "Alcohol concentration’ means the number of

grams of alcohol in 100 milliliters of a person's blood or

the number of grams of alcohol in 210 liters of a person's

breath." Wis. Stat. § 885.235(1)(a).

[*P6] Officer Olsen then requested that Faust provide a

blood sample. After Officer Olsen read Faust the Informing the

Accused form, n4 Faust refused to submit to the blood test

without giving any reason. Officer Olsen then issued a Notice

of Intent to Revoke Faust's license for refusing the blood test.

n5 Faust was transported to the hospital where, following

routine procedures, a phlebotomist administered the blood test.

The result from the blood test indicated that Faust possessed a

blood alcohol concentration of 0.1 grams of alcohol per 100

milliliters of blood. Officer Olsen did not request a drug

analysis of Faust's blood sample. It is undisputed that Officer

Olsen at no time sought a warrant for the blood test.

n4 See Wis. Stat. § 343.305(4).

n5 See Wis. Stat. § 343.305(9)(a).

Ill. PROCEDURAL POSTURE

[*P7] On March 7, 2002, the State filed a criminal

complaint against Faust, alleging violations of Wis. Stat. §

346.63(1)(a) {***7] (operating while intoxicated) and Wis.

Stat. § 346.63(1)(b) (operating with a prohibited alcohol

concentration). On October 15, [**375] 2002, Faust filed a

motion to suppress the results of the bleod test, arguing that the

warrantless test was taken in violation of the United States and

Wisconsin Constitutions because exigent circumstances did not

exist due to the fact that the arresting officer already had

obtained what he believed to be a voluntary and sufficient

breath test that indicated Faust's level of intoxication was in

excess of the legal limit. At the motion hearing, Officer Olsen

indicated that while it was not department procedure to request

a blood test in all drunken driving cases, he sought a blood test

for the purpose of gathering additional evidence because the

previous two tests were very near the legal limit. Officer Olsen

also testified that at the time the breathalyzer was administered,

he believed it to be a voluntary and satisfactory test. The circuit

court granted Faust's motion to suppress on February 25, 2003,

concluding that "exigent circumstances did not exist to justify

the warrantless taking of the Defendants blood."

[*P8] The court [***8] of appeals, based on our decision

in State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d

385, affirmed the order of the circuit court. Faust, 2003 WI App

243, 267 Wis. 2d 783, 672 N.W.2d 97, In Krajewski, this court

held:

a warrantless nonconsensual blood draw from

a person arrested on probable cause for a drunk

driving offense is constitutional based on the

exigent circumstances exception to the warrant

requirement of the Fourth Amendment, even if 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 Bohling.

Krajewski, 2002 WI 97, 255 Wis. 2d 98, P3, 648 N.W.2d

385. However, we also stated in Krajewski that "the exigency

that exists because of dissipating alcohol does not disappear

until a satisfactory, useable chemical test has been taken." Id.,

P40. The court of appeals concluded that this sentence from

Krajewski compelled the conclusion that "once an individual

arrested on probable cause for OW! has provided a satisfactory

and useable chemical test, the exigent circumstances justifying

a warrantless and [***9] nonconsensual blood draw no longer

exist." Faust, 2003 WI App 243, 267 Wis. 2d 783, In a

concurring opinion, Judge Neal P. Nettesheim stated that

although he felt bound by this sentence from Krajewski, the

remainder of the analysis in Krajewski contradicted this

isolated passage. Faust, 2003 WI App 243, 267 Wis. 2d 783,

PP18-21 (Nettesheim, J. concurring).

IV. STANDARD OF REVIEW

[*P9] There are no genuine issues of material fact for the

purposes of this appeal. Whether a nonconsensual warrantless

blood draw taken to obtain evidence of a driver's blood alcohol

concentration following an arrest falls within the exigent

circumstances exception to the warrant requirement of the state

and federal constitutions is a question of law that this court

reviews de novo. Krajewski, 2002 WI 97, 255 Wis. 2d 98, P17,

648 N.W.2d 385.

V. ANALYSIS

“4

A. Exigent Circumstances

[*P10] We begin our analysis by reiterating some basic

constitutional principles applicable to the case at bar. Both

Article I, Section 11 of the Wisconsin Constitution and the

Fourth Amendment of the United States Constitution

"guarantee citizens the right to be free from "unreasonable

[***10] searches." Bohling, 173 Wis. 2d at 536. [**376] n6A

"compelled intrusion[] into the body for blood to be analyzed

for alcohol content" constitutes a search under the Fourth

Amendment. Schmerber v. California, 384 U.S. 757, 767-68, 16

L. Ed. 2d 908, 86 S. Ct. 1826 (1966).

n6 "The Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution are virtually identical. Both establish the

right of persons to be secure from unreasonable searches

and seizures. Consequently, this court interprets the two

constitutional provisions in concert." State v. Krajewski,

2002 W197, P18n.9, 255 Wis. 2d 98, 648 N.W.2d 385.

[*P11] Subject to a few well-delineated exceptions,

warrantless searches are deemed per se unreasonable under the

Fourth Amendment. Bohling, 173 Wis. 2d at 536 (quoting State

v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990)). It

is clear that "[a] governmental search based on 'exigent [***11]

circumstances,' like a search incident to an arrest, is a well-

established exception to the warrant requirement." Jd. at 537.

Exigent circumstances are present so as to justify a search in

the absence of a warrant where there is a threat that "evidence

will be lost or destroyed if time is taken to obtain a warrant."

Id. at 537-38.

[*P12] The test for whether exigent circumstances are

present is an objective one, id. at 538, and inquires into

whether the officer "might reasonably have believed that he

was confronted with an emergency, in which the delay

necessary to obtain a warrant, under the circumstances,

threatened 'the destruction of evidence[.]'" Schmerber, 384 U.S.

at 770 (quoting Preston v. United States, 376 U.S. 364, 367. 11

L. Ed. 2d 777, 84S. Ct. 881 (1964)). In Schmerber, the United

States Supreme Court established that the rapid metabolization

and dissipation of alcohol from the bloodstream of an

individual arrested for a drunk driving related offense qualifies

as an exigent circumstance justifying the attempt to secure

evidence of intoxication without first securing a warrant. /d. at

770-71.

[*P13] Faust asks us to [***12] conclude that once the

police have obtained what they believe at the time to be a

voluntary, satisfactory, and useable chemical sample of the

level of the defendant's intoxication, the exigency supporting a

warrantless blood draw disappears. Faust's argument relies

primarily upon one sentence from our decision in Krajewski,

where we stated that "the exigency that exists because of

dissipating alcohol does not disappear until a satisfactory,

useable chemical test has been taken." Krajewski, 2002 WI 97,

255 Wis. 2d 98, P40, 648 N.W.2d 385.

[*P14] In contrast, the State argues that the exigent

circumstances exception to the warrant requirement of the

Fourth Amendment is premised on the danger that evidence

will be destroyed rather than whether the police already possess

evidence ofa criminal violation. The State contends that simply

because the police already have collected what they believe to

be a valid chemical sample establishing the defendant's level of

intoxication does not remove the exigency. In other words, the

State asserts that the circumstances giving rise to the exigency

in the first instance--the rapid dissipation of alcohol from the

bloodstream--are still present, [***13] regardless of whether

the police have other evidence of intoxication.

[*P15] We agree with the State and Judge Nettesheim's

concurrence that to read the isolated passage from Krajewski

upon which Faust relies as providing that exigent [**377]

circumstances cease to exist in all cases when the police have

already obtained a supposedly valid chemical test would be

inconsistent with the nature of the exigency as illustrated in

Bohling and Krajewski.

[*P16] In Bohling, this court explained that Schmerber

could be interpreted in one of two ways:

(a) that the rapid dissipation of alcohol in the

bloodstream alone constitutes a sufficient

exigency for a warrantless blood draw to obtain

evidence of intoxication following a lawful arrest

for a drunk driving related violation or crime--as

opposed to taking a blood sample for other

reasons, such as to determine blood type; or (b)

that the rapid dissipation of alcohol in the

bloodstream, coupled with an _ accident,

hospitalization, and the lapse of two hours until

_ arrest, constitute exigent circumstances for such a

blood draw. .

Bohling, 173 Wis. 2d at 539. We determined that the more

reasonable [***14] interpretation of Schmerber was the former

one: that exigent circumstances exist "based solely on the fact

that alcohol rapidly dissipates in the bloodstream." /d. at 539.

n7 In other words, we determined in Bohling that Schmerber

stands for the proposition that the fact that alcohol rapidly

dissipates in the bloodstream justifies an officer's belief that he

is faced with "an emergency, in which the delay necessary to

obtain a warrant, under the circumstances, threatens 'the

destruction of evidence[.]" Schmerber, 384 U.S. at 770

(citation omitted).

N7 Chief Justice Abrahamson's dissent contends that

the State was required to offer additional evidence of

exigent circumstances. Chief Justice Abrahamson's

dissent, P44. This suggestion is clearly at odds with our

10a

decision in State v. Bohling, 173.Wis. 2d 529, 539, 494

N.W.2d 399 (1993) (stating that exigent circumstances

exist "based solely on the fact that alcohol rapidly

dissipates in the bloodstream") (emphasis added).

[***15)

[*P17] In addition, we noted that the United States

Supreme Court has recognized that "in the context of a

warrantless blood draw, . . . the Fourth Amendment warrant

requirement is relaxed when the activity at issue constitutes a

serious risk to public safety. Because of the public safety risk,

persons engaging in such activities have a reduced expectation

of privacy." Bohling, 173 Wis. 2d at 540 (citing Skinner v. Ry.

Labor Executives Ass'n, 489 U.S. 602, 627, 103 L. Ed. 2d 639,

109 S. Ct. 1402 (1989)). We went on to explain the serious

public safety concerns involved when a driver chooses to drive

under the influence and that such concerns reduce a driver's

expectation of privacy. /d. at 54]. n8 We explained that our

interpretation of Schmerber "strikes a favorable balance

between an individual's right to be free from unreasonable

searches and Wisconsin's interest in enforcing its drunk driving

laws. Wisconsin's interest is vital whereas the resulting

intrusion on individual privacy is minimal." /d. at 545.

n8 "No one can seriously dispute the magnitude of

the drunken driving problem or the States’ interest in

eradicating it. Media reports of alcohol-related death and

mutilation on the Nation's roads are legion." Michigan

State Police Dept. v. Sitz, 496 U.S. 444, 451, 110 L. Ed.

2d 412 (1990). More than one-third of all fatal traffic

crashes in the state of Wisconsin involve alcohol.

http://www.dot.state. wi.us/safety/motorist/drunkdriving/

index.htm (last modified September 29, 2003).

[*** 56)

lla

[*P18] Therefore, we concluded that exigent

circumstances exist based solely on the rapid dissipation of

alcohol from a person's bloodstream, such that a warrantless

[**378] blood sample could lawfully be taken under the

following circumstances:

(1) the blood draw is taken to obtain evidence

of intoxication from a person lawfully arrested for

a drunk-driving related violation or crime, (2)

there is a clear indication that the blood draw will

produce evidence of intoxication, (3) the method

used to take the blood sample is a reasonable one

and performed in a reasonable manner, and (4) the

arrestee presents no reasonable objection to the

blood draw.

Bohling, 173 Wis. 2d at 533-34.

[*P19] In Krajewski, we determined that the exigency

justifying a warrantless blood draw--the fact that evidence is

likely to be destroyed--does not disappear "as soon as a person

agrees to submit to a breath test as opposed to a blood test."

Krajewski, 2002 WI 97, 255 Wis. 2d 98, P36, 648 N.W.2d 385.

Focusing on the destructibility of the evidence, we reasoned

that "the exigency upon which a warrantless blood draw is

premised is the dissipation of alcohol in the [***17] blood

stream. An arrested person's offer to submit to one chemical

test rather than another does not slow this dissipation. The

evidence remains on a course to be destroyed." Jd, P37

(emphasis added) (citations omitted).

[*P20] Further, we noted that "even when a person

submits to a breath [**379] test in lieu of a blood test--outside

the provisions of the implied consent statute--the test may be

subject to challenge on grounds that the person's consent to the

test was not given freely and voluntarily." /d., P4] (emphasis

added). Ultimately, we reaffirmed the four-factor test set forth

in Bohling and held that "a person's agreement to submit to a

12a

test of the person's choice does not negate the exigency, nor

render unconstitutional a nonconsensual test of the officer's

choice." /d. P63. We concluded:

The rapid dissipation of alcohol in the

bloodstream creates an exigency that justifies a

nonconsensual test of the blood, breath, or urine of

a person arrested for driving while intoxicated or

other similar drunk-driving related offenses, so

long as the test is administered pursuant to the

factors enumerated in Bohling.

Id. (emphasis added). [***18]

{*P21] The trouble with Faust's argument and both

dissents is that they ignore the nature of the exigency that

justifies a warrantless blood draw as described in Bohling and

Krajewski. This court in Bohling and Krajewski clearly stated

that the exigency justifying a warrantless blood draw is the

rapid metabolization and dissipation of alcohol from the

bloodstream. The reasoning of Krajewski--which focused on

the rapid dissipation of alcohol from the blood stream--is

inconsistent with the conclusion that the exigency disappears as

soon as the police have obtained what they at the time believe

to be a valid chemical breath sample.

[*P22] The fact that the police have obtained a

presumably valid chemical sample of the defendant's breath

indicating the defendant's level of intoxication does not change

the fact that the alcohol continues to dissipate from the

defendant's bloodstream. The evidence sought "remains on a

course to be destroyed." Krajewski, 2002 WI 97, 255 Wis. 2d

98, P37, 648 N.W.2d 385. In Krajewski, we specifically

rejected the contention that "the exigency exception to the

warrant requirement . . . turns upon the means used for

executing [***19] the search rather than the urgency involved

in the steady dissipation of alcohol." /d., P42 (emphasis in

original). We also intimated that the exigency remained "even

l3a

when a person submits to a breath test in lieu of a blood test"

because the suspect could later challenge the test on the

grounds that he did not freely and voluntarily consent to the

test. /d., P41.

[*P23] Thus, we conclude, based on the rationale of

Bohling and Krajewski, that the presence of one presumptively

valid chemical sample of the defendant's breath does not

extinguish the exigent circumstances justifying a warrantless

blood draw. "The relevant basis for exigency here is that

evidence is likely to be destroyed." Krajewski, 2002 WI 97, 255

Wis. 2d 98, P36, 648 N.W.2d 385. Regardless of whether the

police had obtained a breath sample from Faust, the evidence

of intoxication revealed by the blood test was on a course

towards destruction. The nature of the evidence sought, not the

existence of other evidence, determines the exigency. We have

found no authority that stands for the proposition that the police

are limited to obtaining only a single piece of evidence under

the exigent circumstances [***20] doctrine. n9

n9 Cf. United States v. Reid, 929 F.2d 990, 991-94

(4th Cir. 1991) (upholding multiple breath tests of one

defendant under the exigent circumstances doctrine).

Also, we note that the United States Supreme Court

rejected a Fourth Amendment challenge to regulations

promulgated by the Federal Railroad Administration that

authorized railroads to collect both blood and urine

samples from employees involved in railroad accidents.

Skinner v. Ry. Labor Executives Ass'n, 489 U.S. 602,

609-10, 624, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989).

Although the case did not specifically involve an

application of the exigent circumstances doctrine, in

rejecting the contention that a warrant was necessary to

render these tests reasonable under the Fourth

Amendment, the Court noted that "alcohol and other

drugs are eliminated from the bloodstream at a constant

l4a

rate, and blood and breath samples taken to measure

whether these substances were in the bloodstream when

a triggering event occurred must be obtained as soon as

possible." Jd. at 623 (citations omitted). The Court stated

that "the delay necessary to procure a_ warrant

nevertheless may result in the destruction of valuable

evidence." /d. The Court did not state or even imply that

the need to gather the evidence or the danger of its

destruction was extinguished once one of the tests was

performed.

We discussed Skinner in Bohling, 173 Wis. 2d at

539-4], to support our conclusion that the exigency was

based solely on the fact that alcohol rapidly dissipates

from the bloodstream. See also Reid, 929 F.2d at 993

("In Skinner, the Supreme Court reiterated the notion

that time is of the essence when there is a need to test

alcohol in the body."). We find these more recent

decisions, which address the warrant requirement in the

context of gathering evidence of intoxication, to be more

persuasive than the dated cases relied upon by Justice

Prosser's dissent that do not concern the issue presented

in this case. Justice Prosser's dissent, PP58-60.

‘ee?

[*P24] In addition to being consistent with the nature of

the exigency as described in Bohling and Krajewski, our

conclusion comports with the underlying objective test for

determining whether exigent circumstances exist. As noted

supra, the test for whether exigent circumstances are present is

an objective one and inquires into whether the officer "might

reasonably have believed that he was confronted with an

emergency, in which the delay necessary to obtain a warrant,

under the circumstances, threatened 'the destruction of

evidence[.]"" Schmerber, 384 U.S. at 770 (quoting Preston, 376

U.S. at 367). Here, despite the presence of one presumptively

voluntary and valid breath test, Officer Olsen might have

ie:

‘

lSa

reasonably believed that it was necessary to secure additional

evidence of Faust's level of intoxication without a warrant in

order to prevent needed evidence from being destroyed.

[*P25] First, we recognize the police do not know when

they administer a breath test whether the result of that test is

valid [**380] and useable. In his concurrence, Judge

Nettesheim indicated that appellate courts routinely hear a

stream of challenges [***22] involving breath tests. Faust,

2003 WI App 243, 267 Wis. 2d 783, P23 n.3. As Judge

Nettesheim stated:

My concern is that the police do not have a

crystal ball in these situations, a proposition which

the Krajewski decision seems to recognize. While

the police here presumably believed that they had

obtained a valid breath test, this does not

guarantee, in the very words of Krajewski, a

satisfactory and useable breath test. That

determination would depend on a future ruling by

the trial court in the event that Faust should

challenge the breath test.

Id., P22 (emphasis in original). Indeed, at oral argument

counsel for Faust indicated that he planned to challenge the

accuracy of the chemical breath test, due to medication that

Faust was allegedly taking at the time of arrest.

[*P26] Second, police often need to acquire additional,

more definitive evidence of intoxication where the results of a

chemical analysis of a breath sample are close to the legal limit.

Here, the preliminary breath test indicated that Faust possessed

an alcohol concentration of 0.13. Chemical analysis of the

breath sample provided at police headquarters indicated

{***23] an alcohol concentration of 0.09. While a search of

Faust's criminal driving record indicated that he had two drunk

driving related offenses and was thus subject to a prohibited

alcohol content of 0.08, the police do not know in advance

loa

whether any of these prior convictions will ultimately be

admitted into court. See Faust, 2003 WI App 243, 267 Wis. 2d

783, P23 (Nettesheim, J., concurring) (collecting cases where

the defendant challenged alleged prior convictions). Tad Faest

ultimately successfully challenged one or both of his prior

convictions--something the police had no way of knowing at

the time the breath test was taken--the State would have had to

prove that Faust operated his motor vehicle with an alcohol

concentration of at least 0.1. See Wis. Stat. § 885.235(1g)(c).

However, preliminary breath tests are not admissible at trial to

prove the defendant's level of intoxication; they are only

admissible at the probable cause hearing. Wis. Stat. § 343. 303.

Thus, the State would have been left with the results of the

breathalyzer, which indicated that Faust possessed an alcohol

concentration of only 0.09. [***24]

{*P27] Third, even if the suspect has apparently complied

with the implied consent statute and provided an initial

chemical sample, there may later be an issue as to whether the

defendant actually consented to take the test. State v. Rydeski,

214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997)("[A]

verbal refusal is not required. The conduct of the accused may

serve as the basis for a refusal."). Likewise, there is no

guarantee that the defendant will not argue at trial that the

police coerced his or her consent to a test through use of the

implied consent law or failed to properly administer the

warning in Wis. Stat. § 343.305(4). n10 Also, if a suspect

consents to a blood test outside the parameters of the implied

consent statute, there may later be an issue as to whether his

consent was freely given. Krajewski, 2002 WI 97, 255 Wis. 2d

98. P41, 648 N.W.2d 385. Therefore, the fact that the police

had obtained a single presumptively valid breath sample from

Faust did not remove the need to gather evidence of

intoxication in light of-"the urgency involved in the steady

dissipation [**381] of alcohol." Krajewski, 2002 WI 97, 255

Wis. 2d 98, P42, 648 N.W.2d 385. [***25] nll The threat

remained that "evidence [would] be lost or destroyed if time

[were] taken to obtain a warrant." Bohling, 173 Wis. 2d at 538.

nl0 See, e.g., State v. Piddington, 2001 WI 24, P1,

241 Wis. 24 734, 623 N.W.2d 328, Village of Little Chute

v. Walitalo, 2002 WI App 211, P8, 256 Wis. 2d 1032,

650 N.W.2d 891; County of Ozaukee v. Quelle, 198 Wis.

2d 269, 274, 280-84, 542 N.W.2d 196 (Ct. App. 1995).

nll Our opinion in Krajewski emphasized that "the

exigency upon which a warrantless blood draw is

premised is the dissipation of alcohol from the blood

stream." Krajewski, 2002 WI 97, 255 Wis. 2d 98, P37.

648 N.W.2d 385. Also, we reiterated that "the relevant

basis for exigency here is that evidence is likely to be

destroyed." /d., P36. We emphasized "the urgency

involved in the steady dissipation of alcohol." Jd, P42.

Also, we acknowledged that this court in Bohling had

established that "the rapid dissipation of alcohol in the

blood stream alone constitutes a sufficient exigency" and

"rejected a requirement that an officer seek a search

warrant in the period immediately following arrest." /d.,

P32. Thus, we do not understand how one of the

dissents, written by the author of Krajewski, can accuse

us of "focusing narrowly on the fact that alcohol is

dissipating in the bloodstream." Justice Prosser's dissent,

P57.

[***26]

[*P28] Furthermore, we note the practical consequences

that would ensue if we were to accept Faust's position that the

exigency evaporates once the police have secured a single

breath test that the officer believes to be voluntary and useable.

First, as we explained in Krajewski, under Wisconsin's implied

consent statute, § 343.305, "[a] person who operates a motor

vehicle in this state is deemed to have given consent to one or

more tests of his or her blood, breath, or urine upon the request

of a law enforcement officer if the person is arrested for a

18a

drunk driving offense." Krajewski, 2002 W197, 255 Wis. 2d 98,

P19, 648 N.W.2d 385 (emphasis added). nl2 If we were to

accept Faust's position, then when an individual arrested for

drunk driving consents to the initial breath test and refuses all

subsequent tests, the police would be compelled to obtain a

warrant to conduct any additional test. As a result, "the arrested

person would dictate the terms of investigation, limiting the

police to a single option for a blood test--a search warrant." Id.,

P42.n13

nl2 Wisconsin Stat. § 343.305(3) provides, in

pertinent part:

(a) Upon arrest of a person for violation

of s. 346.63(1) . . . a law enforcement

officer may request the person to provide

one or more samples of his or her breath,

blood or urine for the purpose specified

under sub. (2). Compliance with a request

for one type of sample does not bar a

subsequent request for a different type of

sample.

Notably, Justice Prosser's dissent fails to even

mention § 343.305(3). [***27]

nl3 As we discussed in Krajewski,

In enacting the implied consent statute,

the legislature authorized a law enforcement

officer to request his or her choice among

these three chemical tests and to request

more than one chemical test from a person

arrested for a drunk driving offense. In the

absence of compelling evidence otherwise,

we must presume that the legislature had

scseiaeeadie er i sg

19a

good reasons for giving law enforcement

officers the right to choose among chemical

tests. These reasons could include the fact

that one test may be better able to detect the

presence of controlled substances than

another; one test may be more efficacious

as evidence before a jury than another; one

test may be less susceptible to attack in

court than another; one test may be more

readily available on any given occasion

than another; and tests taken in a hospital

permit observation of an intoxicated person

by a medical professional before the person

is taken to jail. These reasons are equally

valid for chemical tests taken outside the

implied consent statute.

Krajewski, 2002 WI 97, 255 Wis. 2d 98, P55, 648

N.W.2d 385 (emphasis added).

[***28)

[*P29] Second, as we noted in Krajewski, "blood samples

are the most direct means of measuring alcohol concentration

in the blood .. . ." Jd, P40. However, obtaining a warrant to

authorize a blood draw may take some time and may often be

impracticable. Jd, P42 [**382] n.19. nl4 Police would be

forced to choose between obtaining the most direct and

accurate evidence of intoxication and taking the risk this

evidence would be destroyed, or procuring the most easily

ascertainable evidence of intoxication, knowing that it is often

subject to challenge in court. Thus, such a result would impair

the legitimate evidence gathering objectives of the police

because the level of blood alcohol would continue to dissipate

until the person is transported to a hospital and blood is

actually drawn. See id., P38. Yet, as the United States Supreme

Court recognized in Skinner, "the government's interest in

dispensing with the warrant requirement is at its strongest

20a

when, as aere, 'the burden of obtaining a warrant is likely to

frustrate the governmental purpose behind the search."

Skinner, 489 U.S. at 623 (quoting Camara v. San Francisco

Mun. Ct, 387 U.S. 523, 533, 18 L. Ed. 2d 930, 87 S. Ct. 1727

(1967)). [***29]

nl4 Apparently, according to Justice Prosser's

dissent, these concerns that we recognized in Krajewski

are no longer valid. Justice Prosser's dissent, P59

(quoting Johnson v. United States, 333 U.S. 10, 14-19,

92 L. Ed. 436, 68S. Ct. 367 (1948)). We also note that

the length of time required to secure a warrant 1s

important because chemical tests must usually be taken

within three hours after arrest in order to be considered

prima facie evidence of intoxication. See Wis. Stat. §

885.235(3).

[*P30] Ironically, Faust's position might also subject

Wisconsin drivers to a greater number of blood tests. Because

the police would be required to obtain a warrant to perform a

nonconsensual blood test after a driver had consented to a

breath test, police departments might routinely make a blood

test the first test for which they ask under the implied consent

statute so as to be able to gather the most direct evidence of a

driver's level of intoxication without fear of the evidence

[***30] being destroyed. Those stopped for an alcohol-related

driving offense would be routinely subject to a blood test as a

first test, a procedure far more time-consuming and intrusive

than a simple chemical breath test. Skinner, 489 U.S. at 625-26.

B. Reasonableness

[*P31] Although we have concluded that the nature of the

evidence sought, not the existence of other evidence,

determines the exigency, our holding does not mean that the

police have carte blanche to take an unlimited number of tests

as long as alcohol continues to dissipate from the bloodstream.

hago ys eiceneen " eed a _ .

SMO I REE INET SS AIELLO SALAD TE RIN TT OT NF EE CRIN A

“ ALY RMA OEE OORT TR eae LORIE

REINER AOE IR Ma ME ne

RLS NSS HMDA TALL RANE LAR REE ERE eS

2la

We need not today determine the outer boundaries of the

exigent circumstances exception to the warrant requirement

and draw a bright line in order to answer questions such as

whether the police may constitutionally take multiple blood

tests or a combination of chemical breath samples, urine tests,

and blood tests all without a warrant, for these are not the facts

before us. As explained in Krajewski, "exigency relieves the

state of the burden of obtaining a warrant before a search. It

does not relieve the state of establishing, in a hearing after the

search, that it met the requirements for a constitutional [***31]

search without a warrant, including the requirement of

reasonableness." Krajewski, 2002 WI 97, 255 Wis. 2d 98, P44,

648 N.W.2d 385. Thus, the mere presence of exigent

circumstances is insufficient for a warrantless blood draw to

pass constitutional muster; the search must also meet the test

for reasonableness that we articulated in Bohling. Krajewski,

2002 W197, 255 Wis. 2d 98, PP45, 63; Bohling, 173 Wis. 2d at

533-34.n15 Faust concedes [**383] that the test here satisfied

the requirements set forth in Bohling.

nl5 Chief Justice Abrahamson's dissent is just plain

wrong when it asserts that Bohling is not applicable in

this case. Chief Justice Abrahamson's dissent, P49. As

we explained in Bohling, 173 Wis. 2d at 533-34, even

when exigent circumstances are present based on the

rapid dissipation of alcohol from the bloodstream, the

search still must be reasonable in order to pass

constitutional muster. See also Krajewski, 2002 WI 97,

255 Wis. 2d 98, P63, 648 N.W.2d 385 (""We reaffirm that

the rapid dissipation of alcohol in the bloodstream

creates an exigency that justifies a nonconsensual test of

the blood, breath, or urine of a person arrested for drunk

driving while intoxicated . . . so long as the test is

administered pursuant to the factors enumerated in

Bohling.") (emphasis added). Thus, Bohling, 173 Wis. 2d

529 is always applicable when evaluating the

22a

constitutionality of a warrantless-blood draw in a drunk

driving case.

a [*#**32)

[*P32] As the United States Supreme Court has stated,

"the touchstone of the Fourth Amendment is reasonableness."

Florida v. Jimeno, 500 U.S. 248, 250, 114 L. Ed. 2d 297, 1118S.

Ct. 1801 (1991). "Reasonableness" pervades the test we set

forth for evaluating the constitutionality of warrantless blood

draws in Bohling. Bohling, 173 Wis. 2d at 533-34. There may

well be circumstances where the police have obtained sufficient

evidence of the defendant's level of intoxication that a further

test would be unreasonable under the circumstances presented.

[*P33] However, such are not the facts presented today.

Here, the police obtained a chemical breath sample, the testing

of which indicted that Faust possessed an alcohol concentration

of 0.09. As noted supra, while the police were made aware after

this test was performed that Faust had incurred two previous

alcohol-related driving convictions, they could not know

whether one or both of these convictions would ultimately be

admitted at trial. If either of them were ultimately determined

to be inadmissible, the State would be required to prove that

Faust was operating his vehicle with an alcohol concentration

[***33] of 0.1 or higher. See Wis. Stat. § 885.235(1g)(c). The

preliminary breath test that indicated Faust possessed an

alcohol concentration of 0.13 would not have been admissible

for this purpose. Wis. Stat. § 343.303. Additionally, the police

had no way of knowing at the time the test was administered

whether the chemical analysis of Faust's breath sample would

be useable at trial. Given the strong state interest in removing

drunk drivers from Wisconsin's roadways (especially

reoffending drunk drivers), Faust's two apparent drunk driving

related convictions, and the results of the initial chemical

breath test, we cannot say that requiring Faust to submit to a

single warrantless blood draw was unreasonable. n16

23a

nl6 Thus, we merely determine that under the facts

of this case, it was reasonable for police to take one

blood test in addition to the single chemical breath test.

We do not hold that it is reasonable for the police to

"take as many valid tests of the suspect's blood alcohol

as they [think] necessary to sustain a conviction." Chief

Justice Abrahamson's dissent, P45. To assuage the

concern of the dissent, we reiterate that the

reasonableness of a warrantless nonconsensual test when

a presumptively valid consensual test is present will

depend upon the totality of the circumstances of each

individual case.

‘ We also point out the internal inconsistencies present

: in Chief Justice Abrahamson's dissent. On the one hand,

it stresses that exigent circumstances are to be

determined under a totality of the circumstances test and

chastises the majority opinion for supposedly allowing

police to take an unlimited number of tests. Chief Justice

Abrahamson's dissent, PP43, 45. On the other hand, the

dissent bemoans the fact that we do not create a bright

line rule establishing how many tests are reasonable.

Chief Justice Abrahamson's dissent, P50.

” **34]

VI. CONCLUSION

[*P34] In sum, we reaffirm that the rapid dissipation of

alcohol in the bloodstream of [**384] an individual arrested

for a drunk driving related offense constitutes an exigency that

justifies the warrantless nonconsensual test of that individual's

blood, breath, or urine, so long as the test satisfies the four

factors enumerated in Bohling. The presence of one

presumptively valid chemical sample of the defendant's breath

does not extinguish the exigent circumstances justifying a

warrantless blood draw. The nature of the evidence sought--

that is, the rapid dissipation of alcohol from the bloodstream--

not the existence of other evidence, determines the exigency.

Because exigent circumstances were present in this case and

the blood test satisfied the test we set forth in Bohling, we

reverse the decision of the court of appeals.

By the Court.-The decision of the court of appeals is

reversed.

DISSENT BY: SHIRLEY S. ABRAHAMSON; DAVID T.

PROSSER, JR.

DISSENT:

[*P35] SHIRLEY S. ABRAHAMSON, C.J. (dissenting). |

agree with the circuit court that the results of the forced blood

test should be suppressed. The blood test was taken without

consent, without a search warrant [***35] and without exigent

circumstances.

[*P36] Exigent circumstances did not exist, the circuit

court ruled, because the arresting officer had already obtained

what he believed to be a voluntary and sufficient breath test

that demonstrated that Faust's BAC was in excess of the legal

limit. The circuit court postulated that "the problem could have

been obviated by [the law enforcement officer] purely

requesting blood as the primary test."

[*P37] The circuit court got the case right. It followed this

court's decision in State v. Krajewski, 2002 WI 97, P40, 255

Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089, 154

L. Ed. 2d 634 (2002): "The exigency that exists because of

dissipating alcohol does not disappear until a satisfactory,

useable chemical test has been taken."

[*P38] Law enforcement officers have a choice of which

of several chemical tests to administer. As we explained in

Krajewski, we must presume that the legislature had good

reasons for giving law enforcement officers a choice among

chemical tests. Each test has different attributes. n17 Krajewski

VE ERE Ys stiches ree

SI RRM SERRATE BAAN SSN GEN

‘

25a

made it clear that the choice was the officer's, not the accused's.

[***36] The chemical test the officer chose in the present case

was, according to the officer's own testimony, a satisfactory,

useable chemical test.

nl7 State v. Krajewski, 2002 WI 97, P40, 255 Wis.

2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089, 154

L. Ed. 2d 634 (2002).

[*P39] Adhering to the Krajewski case decided and

published a mere two years ago, I conclude that, without

consent, without a search warrant, and without exigent

circumstances, the forced blood test in the present case violated

the United States Constitution.

[*P40] The Fourth Amendment provides: "The right of the —

people to be secure in their persons, houses, papers, and effects

against unreasonable searches and seizures, shall not be

violated". nl8 The crux of the Fourth Amendment is

reasonableness.

nl8 U.S. Const Amend. IV.

ple

[*P41] "The United States Supreme Court has consistently

held that warrantless searches are per se unreasonable under the

Fourth Amendment, subject to a few carefully delineated

exceptions." nl9 The majority relies upon the exigency

exception to justify the warrantless search in [**385] the

present case, and its reasoning is broader than the exception.

nl9 State v. Murdock, 155 Wis. 2d 217, 227, 455

N.W.2d 618 (1990).

26a

[*P42] The majority erroneously holds that the nature of

the evidence alone determines whether exigent circumstances

exist. n20 The majority declares without any legai support at

all, and contrary to our own Krajewski decision, that "the

nature of the evidence sought, not the existence of other

evidence, determines the exigency.” n21

n20 Majority op., P34.

n21 Majority op., P23.

(*P43] [***38] The accepted principle of law is that

exigent circumstances are determined by examining the totality

of the circumstances. n22 The test for exigent circumstances

upon review is whether a_ police officer under the

circumstances known to the officer at the time "might

reasonably have believed that he was confronted with an

emergency, in which the delay necessary to obtain a warrant,

under the circumstances, threatened the ‘destruction of

evidence." n23

n22 State v. Smith, 131 Wis. 2d 220, 229, 388

N.W.2d 601 (1986); State v. Kraimer, 99 Wis. 2d 306,

321, 298 N.W.2d 568 (1980); State v. Mielke, 2002 WI

App 251, PP7-10, 257 Wis. 2d 876, 653 N.W.2d 316;

State v. Garrett, 2001 WI App 240, P16, 248 Wis. 2d 61,

71, 635 N.W.2d 615.

n23 State v. Bohling, 173 Wis. 2d 529, 538-9, 494

N.W.2d 399 (1993) (quoting Schmerber v. California,

384 US. 757, 770-71, 16 L. Ed. 2d 908, 86 S. Ct. 1826

(1966)).

[*P44] Evidence of alcohol in [***39] the body is

destroyed by the passage of time, without any act of the

27a

individual involved or of law enforcement. All evidence of

intoxication cannot be gathered and preserved. Here evidence

of intoxication has been preserved in the form of the result of a

valid breathalyzer test. Evidence of intoxication that is being

destroyed in the present case is cumulative of evidence already

collected and preserved. The State offered no proof of exigent

circumstances except for continuing dissipation of alcohol.

[*P45] The majority's argument is essentially that because

law enforcement officers do not know what will happen at trial

(and no one does, of course), it was reasonable for them to take

as many valid tests of the suspect's blood alcohol as they

thought necessary to sustain a conviction. n24 The majority

also is concerned that a defendant may exercise his or her

constitutional rights and challenge prior convictions or the

validity of the results of a chemical test. n25

n24 Majority op., P33.

n25 Id.

[***40]

[*P46] This court understood and responded to these

problems in Krajewski. The Krajewski court held that law

enforcement officers may choose to give the chemical test they

think appropriate under the circumstances.

[*P47] Furthermore, the legislature apparently enables

law enforcement officers to take more than one chemical test

by request. Under the implied consent law, if the suspect

refuses to submit to a chemical test, the police may take

possession of the person's driver's license and prepare a notice

of intent to revoke the person's operating privilege. n26

Therefore, the state's [**386] interest in keeping drunk drivers

off the road appears to be met, even if a warrantless blood draw

is prevented by the Fourth Amendment.

n26 Wisconsin's implied consent statute states in

28a

pertinent part:

[***41]

[*P48]

enforcement officers do not

343.305 Tests for intoxication;

administrative suspension and court-ordered

(3) Requested or required.

(a) Upon arrest of a person for violation

of s. 346.63(1), (2m) or (5) or a local

ordinance in conformity therewith, or for a

violation of s. 346.63(2) or (6) or 940.25, or

s. 940.09 where the offense involved the

use of a vehicle, a law enforcement officer

may request the person to provide one or

more samples of his or her breath, blood or

urine for the purpose specified under sub.

(2). Compliance with a request for one type

of sample does not bar a subsequent request

for a different type of sample.

(9) Refusals; Notice and Court Hearing.

(a) If a person refuses to take a test

under sub. (3)(a), the law enforcement

officer shall immediately take possession of

the person's license and prepare a notice of

intent to revoke, by court order under sub.

(10), the person's operating privilege.

Although the majority concedes that law

have carte blanche to take an

unlimited number of tests as long as alcohol continues to

dissipate in the bloodstream, it refuse

s to define the outer limits

29a

of how many tests are reasonable. The majority opinion falls

back to the reasonableness test, citing the four-part

reasonableness test of Bohling. n27

n27 Majority op., P31.

[*P49] Bohling, 173 Wis2d 529 is not applicable to

determine exigent circumstances in the present case when more

than one test was administered. The first and second of the four

Bohling factors amount to justification for arrest for drunk

driving. The third factor relates to the setting under which

blood is drawn. The fourth factor relates to exigent

circumstances. But, according to the majority opinion,

dissipation of alcohol creates exigent circumstances. So no

reasonableness test is offered by the majority. The internal

inconsistencies in the majority opinion are apparent and

troubling.

[*P50] [***42] By failing to define the outer limits of

what is reasonable in a blood draw case, the majority opinion

opens the door to more litigation. The majority opinion also

leaves law enforcement officers, litigants, circuit courts, and

the court of appeals in a quandary, without guidance regarding

what number of tests is reasonable.

[*P51] Because the breathalyzer test was sufficient to

preserve evidence of Faust's intoxication until trial, no exigent

circumstances existed to take blood without consent or a search

warrant. That alcohol naturally dissipates in the blood

ordinarily creates an exigent circumstance. It does not,

however, create an exigent circumstance under the facts of this

case.

[*P52] For the reasons set forth, I dissent.

[*P53] I am authorized to state that Justices ANN

WALSH BRADLEY and DAVID T. PROSSER, JR. join this

dissent.

30a

[*P54] DAVID T. PROSSER, J. (dissenting). The

majority opinion is well intentioned. None of the members of

the court is unconcerned about the continuing carnage from

intoxicated drivers, n28 or the continuing prevalence of

impaired driving on Wisconsin roadways. n29 These legitimate

concerns underlay our decisions in State v. Bohling, 173 Wis.

2d 529, 494 NW.2d 399 (1993), [***43] and State v.

Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385.

n28 There were 292 people killed and 6,570 people

injured as a result of alcohol-related motor vehicle

crashes in Wisconsin during the year 2002, according to

a report published in February 2004 by the Wisconsin

Department of Transportation, Bureau of Transportation

Safety (an average of | person killed or injured every 77

minutes). °

www.dot.wisconsin.gov/safety/motorist/crashfa

cts/index/htm(last visited June 30, 2004).

n29 There were 37,775 people arrested for operating

while intoxicated on Wisconsin roadways in 2002. Id.

[*P55] The problem in this case is that the arresting

officer was not satisfied with a voluntary, satisfactory, and

useable chemical breath test from the defendant. He [**387]

wanted a second test as backup. No reason was given for this

second "search" of the defendant except the desire to gather

additional evidence in the event it was needed. The circuit

court later suppressed the product of this [***44] second

search without a warrant on grounds _ that "exigent

circumstances did not exist to justify the warrantless taking of

Defendant's blood."

[*P56] In order to justify a second warrantless taking, we

are forced to redefine "exigency" to the point that it becomes

meaningless.

[*P57] The American Heritage Dictionary of the English

Language defines "exigent" as an adjective that means

"Requiring immediate action or remedy." The American

Heritage Dictionary of the English Language 642 (3d ed.

1992). An "exigency" is defined as a "pressing or urgent

situation." Id. "Exigencies are "urgent requirements; pressing

needs." Id. It is easy enough to explain a second search for

breath, blood, or urine if one focuses narrowly on the fact that

alcohol is dissipating in the blood stream at the time the search

is undertaken. It is not so easy to justify a second search for

backup evidence if one attempts to justify that search as an

urgent requirement.

{*P58] "Exigency" first appeared in Fourth Amendment

jurisprudence in McDonald v. United States, 335 U.S. 451,

455-56, 93 L. Ed. 153, 69S. Ct. 191 (1948). In that case, the

Court suppressed evidence obtained |***45] when police

intruded into the home of a suspected "numbers" operator. The

officers, who had the defendant under surveillance for two

months, entered by open window to arrest the suspect because

the police heard an adding machine typically used in numbers

operations. Justice Douglas, writing for the majority, reflected

on the importance of the Fourth Amendment:

We are not dealing with formalities. The

presence of a search warrant serves a high

function. Absent some grave emergency, the

Fourth Amendment has interposed a magistrate

between the citizen and the police. This was done

not to shield criminals nor to make the home a

safe haven for illegal activities. It was done so that

an objective mind might weigh the need to invade

that privacy in order to enforce the law. The right

of privacy was deemed too precious to entrust to

the discretion of those whose job is the detection

32a

of crime and the arrest of criminals. Power is a

heady thing; and history shows that the police

acting on their own cannot be trusted. And so the

Constitution requires a magistrate to pass on the

desires of the police before they violate the

privacy of the home. We cannot be true to that

constitutional [***46] requirement and excuse the

absence of a search warrant without a showing by

those who seek exemption from the constitutional

mandate that the exigencies of the situation made

that course imperative.

Id. (emphasis added).

[*P59] McDonald followed a line of cases that included

Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct.

367 (1948). In Johnson, the Court explained the justification

for one of the exceptions to the warrant requirement but it did

not use the term "exigency." Instead it used the term

"exceptional circumstances." Jd. at 1 4-15. The Court addressed

the search of a hotel room where, based on the smell of opium

in the hallway, officers believed that narcotics activity would

be found. The Court held that the officers could have, and

therefore should have, obtained a warrant.

[**388] There are exceptional circumstances

in which, on balancing the need for effective law

enforcement against the right of privacy, it may be

contended that a magistrate's warrant for search

may be dispensed with. But this is not such a case.

No reason is offered for not obtaining a search

warrant except the inconvenience to the [***47]

officers and some slight delay necessary to

prepare papers and present evidence to a

magistrate. There are never very convincing

reasons and, in these circumstances, certainly are

not enough to bypass the constitutional

requirement. No suspect was fleeing or likely to

33a

take flight. The search was of permanent premises,

not of a movable vehicle. No evidence or

contraband was threatened with removal or

destruction, except perhaps the fumes which we

suppose in time would disappear. But they were

not capable at any time of being reduced to

possession for presentation to court.

Id. at 14-15 (emphasis added).

[*P60] Three years later, in United States v. Jeffers, 342

U.S. 48, 96 L. Ed. 59, 72S. Ct. 93 (1951), the Court was again

presented with a warrantless hotel room search. The defendant

in Jeffers attempted to bribe the hotel detective with $ 500 to

let the defendant into a room occupied by his two aunts so that

the defendant could retrieve something he had "stashed" in the

room. The hotel detective asked that the defendant call back

later, and in the meantime phoned the police. The police

investigated and tried knocking on the hotel room door, and,

[***48] when nobody answered, the police had an employee

let them into the hotel room. After a thorough search, they

discovered narcotics in the room's closet. The Court found the

search violated the Fourth Amendment and suppressed the

evidence of the narcotics. The Court reviewed the principles of

the Fourth Amendment and, in doing so, cited Johnson for the

proposition that warrantless searches may be proper in

“exceptional circumstances." /d. at 5/. The Court cited

McDonald for the proposition that the Government bears the

burden of demonstrating that an exception to the warrant

requirement may be justified, id., but the Court did not mention

"exigency" in any manner.

[*P61] The landmark decision in Schmerber v. C alifornia,

384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), is an

important link in this line of cases, but it also did not use the

terms "exigent" or "exigency." The relevant discussion instead

used the term "emergency."

34a

The officer in the present case, however, might

reasonably have believed that he was confronted

with an emergency, in which the delay necessary

to obtain a warrant, under the circumstances,

threatened "the [***49] destruction of evidence,"

Preston v. United States, 376 U.S. 364, 367, 11 L.

Ed. 2d 777, 84S. Ct. 881. We are told that the

percentage of alcohol in the blood begins to

diminish shortly after drinking stops, as the body

functions to eliminate it from the system.

Particularly in a case such as this, where time had

to be taken to bring the accused to a hospital and

to investigate the scene of the accident, there was

no time to seek out a magistrate and secure a

warrant. Given these special facts, we conclude

that the attempt to secure evidence of blood-

alcohol content in this case was an appropriate

incident to petitioner's arrest.

Id. at 770-71 (emphasis added).

[*P62] Over the years, the Wisconsin Supreme Court and

the United States Supreme Court have characterized Schmerber

as representing the "exigent [**389] circumstances" exception

to the warrant requirement. See Winston v. Lee, 470 US. 753,

759, 84 L. Ed. 2d 662, 105S. Ct. 1611 (1985); United States v.

Dionisio, 410 U.S. 1, 8-9, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973);

State v. Bohling, 173 Wis.2d 529, 538, 494 N.W.2d 399 (1993).

[*P63] In the present case, the police obtained

satisfactory, [***50] useable evidence. Nothing threatened the

destruction of that evidence. The only thing "threatened" was

the destruction of additional evidence of the same character.

[*P64] Asa former prosecutor, I repeatedly represented to

juries that machines to measure the alcohol content of breath

were scientific and reliable. Consequently, it is hard to embrace

35a

the proposition that an "exigency" of constitutional stature

exists to obtain backup evidence from samples of blood or

urine. If that were correct, it would seem as though an exigency

exists in every case in which blood is not drawn. Such an

exigency is a built-in rationale for extended detention and

additional tests potentially amounting to harassment.

[*P65] If the officer in this case had offered any

compelling explanation for why a second test was "needed" as

opposed to "desired," I would probably not be writing this

dissent. But on the facts presented, I cannot conclude that the

second warrantless search of the defendant was entitled to

march with other recognized "exigencies" in our law. The

result in this case untethers the "exigent circumstances"

exception to the warrant requirement from the premises

supporting the [***51] exception. I join the opinion of the

Chief Justice and respectfully dissent.

[*P66] I am authorized to state that Chief Justice

SHIRLEY S. ABRAHAMSON and Justice ANN WALSH

BRADLEY join this dissent.

36a

State of Wisconsin, Plaintiff-Appellant, v. Jacob J. Faust,

Defendant-Respondent.

Appeal No. 03-0952-CR

COURT OF APPEALS OF WISCONSIN, DISTRICT

TWO

2003 WI App 243; 267 Wis. 2d 783; 672 N.W.2d 97;

2003 Wisc. App. LEXIS 927

June 16, 2903, Submitted on Briefs

October 1, 2003, Decided

October 1, 2003, Opinion Filed

{[ENTERED: October 1, 2003]

SUBSEQUENT HISTORY: Review granted by State v.

Faust, 2004 WI 1, 268 Wis. 2d 133, 673 N.W.2d 691, 2003

Wisc. LEXIS 1049 (2003)

Reversed by State v. Faust, 2004 WI 99, 2004 Wisc. LEXIS

474 (2004)

PRIOR HISTORY: APPEAL from an order of the circuit

court for Sheboygan County: GARY LANGHOFF, Judge. Cir.

Ct. No. 02CT000145.

DISPOSITION: Affirmed.

COUNSEL: On behalf of the plaintiff-appellant, the cause was

submitted on the brief of Mary T. Wagner, assistant district

attorney.

On behalf of the defendant-respondent, the cause was

submitted on the brief of Stephen M. Seymour of Sheboygan.

37a

JUDGES: Before Anderson, P.J., Brown and Nettesheim, JJ.

NETTESHEIM, J. (concurring).

OPINION BY: BROWN

OPINION:

[**786] [***99] [*P1] BROWN, J. The question here is

whether exigent circumstances still exist for a nonconsensual —

and warrantless blood draw even after the State has already

obtained a voluntary chemical breath test producing a valid

sample. In State v. Krajewski, 2002 WI 97, P1, 255 Wis. 2d 98,

648 N.W.2d 385, cert. denied, 537 U.S. 1089, 154 L. Ed. 2d

634, 123 S. Ct. 704 (2002), our supreme court undertook the

[**787] task of determining the parameters by which law

enforcement could conduct a warrantless and nonconsensual

blood draw in the context of an arrest for operating a motor

vehicle while intoxicated pursuant to the exigent circumstances

exception to the Fourth Amendment. Our supreme court

instructed that "the exigency that exists because of dissipating

alcoho! does not disappear until a satisfactory, useable chemical

test has been taken." Jd., P40. We are bound by this statement.

Accordingly, we hold that once an individual arrested on

probable cause for OWI has provided a satisfactory and useable

chemical test, the exigent circumstances justifying a

warrantless and nonconsensual blood draw no longer exist. We

therefore affirm the circuit court's order granting Jacob J.

Faust's motion to suppress the results of the blood test.

[*P2] The facts are undisputed. On February 19, 2002,

Sheboygan police officer James Olsen conducted a traffic stop

in the city of Sheboygan. Prior to the stop, Olsen had observed

that the license plate displayed on the car Faust was driving was

registered to a 1988 Chevrolet Coupe, but was in fact attached

to an Audi Coupe. Upon pulling the vehicle over and

identifying the driver of the vehicle as Faust, Olsen noted a

strong odor of intoxicants emanating from the vehicle and that

38a

Faust's speech was slurred and his eyes bloodshot and glassy.

Olsen asked Faust how much he had to drink before driving

and Faust admitted to downing "five brandies." After Faust

failed field sobriety tests, Olsen administered a preliminary

breath test which returned a result of a .13 g/100 ml blood

alcohol content.

[*P3] Olsen then transported Faust to the Sheboygan

police department, where he agreed to provide a sample of his

breath for chemical analysis. The breath test reflected a blood

alcohol content of .09 grams of [**788] alcohol per 210 liters

of breath, which is .01 above the prohibited alcohol

concentration (.08) pertinent to Faust as a third offender

pursuant to Wis. Stat. § 885.235(1g)(cd) (2001-02). nl

Although Olsen was aware that Faust was therefore operating

with a prohibited blood alcohol level given his two prior

convictions, he advised Faust that he would seek a blood test as

well. Olsen then read Faust an Informing the Accused form.

Faust refused to consent to the blood test, and a forced blood

sample was subsequently drawn from him at the hospital. The

blood sample ultimately reflected a blood alcohol level of .10

2/100 ml of blood.

nl All references to the Wisconsin Statutes are to the

2001-02 version unless otherwise noted.

[*P4] On October 16, 2002, Faust filed a motion 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. At the first [***100]

motion hearing, Faust conceded that for the purposes of the

hearing he was not challenging that the officer had probable

cause to stop or arrest him. After a second motion hearing, the

circuit court granted Faust's motion to suppress the blood test

39a

results, reasoning that "exigent circumstances did not exist to

justify the warrantless taking of Faust's blood and ... the blood

test was taken outside of statutory parameters." This appeal

followed.

[*P5] For purposes of this appeal, there are no genuine

issues of material fact. We are presented with the question of

whether a forced blood draw meets the exigent circumstances

exception to the warrant requirement of the Fourth Amendment

to the United [**789] States Constitution and article I, section

11 of the Wisconsin Constitution when a valid breath test has

already been taken. This is a question of law that we review de

novo. State v. Bohling, 173 Wis. 2d 529, 533, 494 N.W.2d 399

(1993).

[*P6] As we stated at the outset, our holding in this case is

based upon Krajewski. Nonetheless, to better understand how

the analysis conducted in Krajewski controls the outcome in

this case, we will, as did the court in Krajewski, provide some

background about the exigency exception to the warrant

requirement of the Fourth Amendment and its relationship to

Wisconsin's implied consent statute.

[*P7] Both the Fourth Amendment to the United States

Constitution and article I, section 11 of the Wisconsin

Constitution establish the right of persons to be secure from

unreasonable searches. Consequently, this court interprets the

two constitutional provisions in concert. Krajewski, 2002 WI

97, PI8 n.9, 255 Wis. 2d 98, 648 N.W.2d 385. Searches

conducted without a warrant are deemed per se unreasonable

unless they fall within one of "a few specifically established

and well delineated exceptions." Coolidge v. New Hampshire,

403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 91S. Ct. 2022 (1971);

see also State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d

618 (1990). Two of the carefully delineated exceptions to the

warrant requirement are consent searches and searches based

on exigent circumstances. See Schneckloth v. Bustamonte, 412

U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973);

40a

Schmerber v. California, 384 U.S. 757, 770-71, 16 L. Ed. 2d

908, 86 S. Ct. 1826 (1966). A well-recognized exigent

circumstance is the threat that evidence will be lost or

destroyed if time is taken to obtain a warrant. Bohling, 173

Wis. 2d at 537-38.

{**790] [*P8] A warrantless blood draw from a person

arrested for driving while intoxicated is permissible under the

exigent circumstances exception to the Fourth Amendment's

warrant requirement. Schmerber, 384 U.S. at 771-72. The

exigency upon which a warrantless blood draw is premised is

the dissipation of alcohol in the bloodstream. Krajewski, 2002

W197, P37, 255 Wis. 2d 98, 648 N.W.2d 385. In order for the

dissipation of alcohol from an individual's bloodstream to

constitute sufficient exigency: (1) the blood draw must be taken

to obtain evidence of intoxication from a person lawfully

arrested for a drunk-driving related violation or crime; (2) there

must be a clear indication that the blood draw will produce

evidence of intoxication; (3) the method used to take the blood

sample must be a reasonable one and performed in areasonable

manner; and (4) the arrestee must present no reasonable

objection to the blood draw. Bohling, 173 Wis. 2d at 534.

[*P9] Wisconsin has enacted an implied consent statute

for motor vehicle operators, Wis. Stat. § 343.305. A person

who operates a motor vehicle in this state is [***101] deemed

to have given consent to one or more tests of his or her blood,

breath, or urine upon the request of a law enforcement officer if

the person is arrested for a drunk driving offense. Sec.

343.305(2). Pursuant to § 343.305(3)(a), a law enforcement

officer may request that a person arrested for an OWI provide

one or more samples of the person's blood, breath, or urine for

testing.

[*P10] Here, for the purposes of this appeal, neither party

questions that pursuant to Wisconsin's Implied Consent Law, a

law enforcement officer, having obtained a voluntary sample of

breath, blood, or urine [**791] for chemical testing, may

4la

request that the driver give a second, different sample for

testing. Rather, the specific issue we address ts: if the driver

then refuses the officer's request for the second, different

sample, whether the warrantless and nonconsensual extraction

and testing of the driver's blood for evidence is still legally

valid under the exigent circumstances exception to the Fourth

Amendment. Stated another way, we decide whether the

exigent circumstances justifying a warrantless blood draw are

automatically extinguished after a law enforcement officer has

already obtained a valid, voluntary breath test. As we

mentioned earlier, Krajewski is the starting point of our

analysis of this issue.

{*P11] There, Krajewski was arrested on probable cause

for OWI. Krajewski, 2002 WI 97, PP1, 7, 255 Wis. 2d 98, 648

N.W.2d 385. When asked to submit to a blood test, Krajewski

refused, citing a fear of needles. Id., P9. Krajewski instead

offered to provide a breath or urine sample. Jd. Krajewski was

then forced to submit to a blood draw. /d., P12. On appeal,

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. Id., P34.

[*P12] Our supreme court rejected this 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.

Id., P63. The court explained that an arrested person's offer to

submit to one [**792] chemical test rather than another does

not slow the dissipation of alcohol. Id., P37. According to the

court, "the evidence remains on a course to be destroyed." Jd.

The court reasoned that the arrested person couid fail to give a

42a

sufficient breath specimen and/or have a change of heart and

refuse altogether to submit to the test. /d., P38. 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 is not likely to reveal the

presence of a controlled substance. Id., P40. Thus, the court

concluded that "the exigency that exists because of dissipating

alcohol does not disappear until a satisfactory, useable chemical

test has been taken." Id.

[*P13] It is this last statement by the court that the parties

ask us to clarify. It is the State's position that the exigency

created by the dissipation of alcohol from the bloodstream ofa

person lawfully arrested for drunk driving does not

automatically disappear when a single valid chemical test for

intoxication has been performed. The State argues that the

exigency justifying a warrantless blood draw following a valid

[***102] drunk 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. This argument

flies in the face of our supreme court's clear directive in

Krajewski.

[*P14] 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 [**793] 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

43a

unusable, the exigent circumstances permitting law

enforcement to conduct a forcible blood draw no longer exist.

[*P15] The State also appears to argue 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 the breath test at trial

and therefore the exigency does not disappear. However, we do

not interpret Krajewski as saying that the determination of

whether a chemical test is satisfactory and useable is mde 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.

[*P16] We are of course bound by the plain language used

by the supreme court in Krajewski. See Cook v. Cook, 208 Wis.

2d 166, 189, 560 N.W.2d 246 (1997) (holding that only the

supreme court has the power to overrule, modify or withdraw

language from a previous supreme court opinion). Accordingly,

we hold that after an individual arrested on probable cause for

drunk driving has provided a satisfactory and useable [**794]

chemical test, the exigent circumstances justifying a

warrantless and nonconsensual blood draw no longer exist. n2

n2 In this case, there was no dispute that the breath

test was, in the opinion of the officer, valid. It is also

undisputed that Faust tested over the limit. We express

no opinion as to whether exigent circumstances would

remain if the defendant tested under the limit. We will

leave it up to a future court to decide whether a result

unfavorable to police is, in the words of the Krajewski

court, not "satisfactory" and "useable" such that exigent

circumstances remain. See State v. Krajewski, 2002 WI

97, P40, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied,

537 US. 1089, 154 L. Ed. 2d 634, 123 S. Ct. 704 (2002).

44a

To decide the issue now would be nothing more than

dicta because. as we have noted, the breath test result

here was over the limit for Faust.

{*P17] In the case at hand, the record contains no evidence

that the police were concerned about the breath test being in

any way unsatisfactory or unusable. For example, there is no

evidence that the equipment was not working properly or that

Faust's breath sample was otherwise insufficient. In fact, at the

motion hearing, Olsen testified that he believed he had obtained

a valid and useable sample of Faust's breath. The intoximeter

reading was .09, which established that Faust was operating

with a prohibited blood alcohol level, given his two prior

convictions, and Olsen testified that he was aware of this.

Olsen also acknowledged that he had no reason to believe that

Faust was under the influence of some other type of controlled

{***103] substance and he did not request the blood test for

the purpose of detecting the presence of controlled substances.

It appears that Faust had consented to and provided a

satisfactory and useable chemical breath test as required by

Krajewski. We therefore conclude that [**795] the trial court

correctly determined that exigent circumstances did not exist to

justify the warrantless and nonconsensual blood draw and thus

properly suppressed the evidence derived therefrom. We affirm.

By the Court.-Order affirmed.

Recommended for publication in the official reports.

CONCURBY: NETTESHEIM

CONCUR:

[*P18] NETTESHEIM, J. (concurring). 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- State v. Krajewski, 2002 WI 97,

45a

255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089,

154 L. Ed. 2d 634, 123 S. Ct. 704 (2002). In my judgment,

Krajewski is internally inconsistent and sends mixed signals. |

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. See

Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

[*P19] The ultimate holding of Krajewski is that "the

warrantless blood draw in this case was properly based on

exigency and complied with [the] factors enumerated in

Bohling." n3 Krajewski, 2002 W197, P3, 255 Wis. 2d 98, 648

N.W.2d 385. 1 agree with this holding. I also agree with the

logic of Krajewski, which explains in some detail why the

exigency of dissipating alcohol persists even in the face of an

existing breath test. Id., PP40-42. Unfortunately, the opinion

prefaces this discussion with the following sentence upon

which the majority hangs its hat: "the exigency that exists

because of dissipating alcohol does not disappear until a

satisfactory, useable chemical test has been taken." Jd., P40;

Majority at P12.

n3 State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d

399 (1993).

[*P20] Having made that statement, Krajewski then

embarks on a discussion which seems to contradict it. In the

very next sentence, Krajewski says, "Securing [**796] 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." n4 Krajewski, 2002 WI 97, P40, 255 Wis. 2d 98,

648 N.W.2d 385.

n4 Wisconsin Stat. § 346.63(1) prohibits not only

46a

operating under the influence of an intoxicant, but also

operating under the influence of a controlled substance, a

controlled substance analog, or any combination of the

three. The statute also prohibits operating under the

influence of any other drug that impairs the ability to

operate a motor vehicle or any combination of an

intoxicant and such drug.

[*P21] But the contradiction does not stop there. In the

very next paragraph, Krajewski states, "Even when a person

submits to a breath test in lieu of a blood test-outside the

provisions of the implied consent statute-the test may be

subject to challenge on grounds that the person's consent to the

test was not given freely and voluntarily." Jd. at P41. While

Faust's breath test was administered under the auspices of the

implied consent law, that law does not guarantee that the

requirements of the criminal law governing the free and

voluntary giving of consent have otherwise been satisfied.

Moreover, the implied consent statute does not restrict the

police from using other constitutional means to collect

evidence of the [***104] driver's intoxication. State v.

Gibson, 2001 WI App 71, P12, 242 Wis. 2d 267, 626 N.W.2d

73.

[*P22] In short, my concern is that the police do not have

a crystal ball in these situations, a proposition which the

Krajewski decision seems to recognize. While the police here

presumably believed that they had obtained a valid breath test,

this does not guarantee, in the very words of Krajewski, a

satisfactory and useable breath test. That determiauon would

depend on a [**797] future ruling by the trial court in the

event Faust should challenge the breath test. We must bear in

mind that this case is before us via the State's appeal from the

trial court's order granting Faust's motion to suppress. See Wis.

Stat. § 974.05(1)(d)2. Thus, this case remains pending in the

trial court.

47a

[*P23] This same concern applies to Faust's status as an

alleged third-time offender. Faust's breath test produced a result

of 0.9 grams of alcohol per 210 liters of breath, which was

above the 0.8 level for such an offender, but below the .10 level

for a first- or second-time offender. Wis. Stat. §

885.235(1g)(c), (cd). Here again, without a crystal ball, the

police had no assurance that some or all of Faust's prior

convictions would go unchallenged. Should that occur and

should any one of the prior two convictions be unfounded, the

State will be required to prove that Faust operated a motor

vehicle with a PAC of .10 or more, not 0.8 or more. Both this

court and the supreme court have seen a steady stream of

challenges (some successful) to alleged prior convictions in

criminal cases. See State v. Saunders, 2002 WI 107, Pl, P54,

255 Wis. 2d 589, 649 N.W.2d 263; State v. Wideman, 206 Wis.

2d 91, 94, 107-08 n.24, 556 N.W.2d 737 (1996); State v.

Koeppen, 195 Wis. 2d 117, 121, 130, 536 N.W.2d 386 (Ct. App.

1995); State v. Theriault, 187 Wis. 2d 125, 130, 132 n.1, 522

N.W.2d 254 (Ct. App. 1994); State v. Goldstein, 182 Wis. 2d

251, 254, 261, 513 N.W.2d 631 (Ct. App. 1994). nS

n5 The same can be said for the steady stream of

challenges that the appellate courts have seen to

breathalyzer results. See, e.g., City of New Berlin v.

Wertz, 105 Wis. 2d 670, 672, 314 N.W.2d 911 (Ct. App.

1981) (defendant moved to suppress the breathalyzer test

results on the grounds that the testing procedures and

methods did not meet certain administrative code

requirements); State v. Walstad, 119 Wis. 2d 483, 504,

351 NW.2d 469 (1984) (defendant challenged the

breathalyzer result before trial court based on whether a

used breathalyzer test ampoule is retestable); State v.

Busch, 217 Wis. 2d 429, 436, 576 N.W.2d 904 (1998)

(defendant moved to suppress on grounds that modified

version of intoxilyzer machine had not been evaluated

48a

and approved for use by the chief of the chemical test

section); State v. Dwinell, 119 Wis. 2d 305, 308, 349

N.W.2d 739 (Ct. App. 1984) (defendants challenged the

admission of breathalyzer test results on grounds that the

intoxilyzer machine, the Intoximeter 3000, was an

unreliable and inaccurate measuring device); State v.

Burkman, 96 Wis. 2d 630, 634, 292 N.W.2d 641 (1980)

(the trial court excluded breathalyzer results because the

officer failed to comply with administrative procedures

requiring that the subject be kept under continuous

observation for at least twenty minutes prior to the

collection of the breath specimen). In addition, this court

has addressed the admissibility of breathalyzer test

results in a steady stream of single judge appeals.

[**798] [*P24] The supreme court's isolated statement in

Krajewski, upon which the majority opinion rests, appears to

hold that the exigency of an OWI suspect's dissipating alcohol

level is eliminated because a blood test would merely provide

corroborating evidence of the breath test. n6 I have examined

the law of exigent circumstances and [***105] can find no

case law or other commentary that has made this statement. To

the contrary, in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d

399 (1993), where our supreme court first approved the forcible

taking of an OWI suspect's blood draw, the court said:

We hold that the dissipation of alcohol from a

person's bloodstream constitutes a sufficient

exigency to justify a warrantless blood draw under

the following circumstances: (1) the blood draw is

taken at the direction of [**799] 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.

49a

Id. at 547-48. Here, all of the factors contemplated by

Bohling were present. The dissipation of alcohol existed as a

matter of law. The blood draw was taken at the direction of a

law enforcement officer. Finally, there was clear evidence that

a blood draw would produce evidence of intoxication. If I were

writing on a clean slate, I would hold that the exigency of

Faust's dissipating blood alcohol level was not eliminated

simply because the police had already obtained a breath test

result.

n6 Of course, if the breath test should be suppressed,

the blood test would not be corroborating evidence.

Instead, it would be the only evidence of a PAC

violation. The same is true if any of Faust's prior

convictions should be struck.

[*P25] Appellate courts sometimes 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.

50a

WISCONSIN STATUTES

PROVISIONS COMMON TO ACTIONS AND

PROCEEDINGS IN ALL COURTS

CHAPTER 885. WITNESSES AND ORAL TESTIMONY

SUBCHAPTER I GENERAL PROVISIONS

Wis. Stat. § 885.235 (2002)

885.235. Chemical tests for intoxication.

(1) In this section:

(a) "Aicohol concentration" means the number of grams of

alcohol in 100 milliliters of a persons blood or the number of

grams of alcohol in 210 liters of a persons breath.

(b) "Controlled substance" has the meaning specified in s.

961.01 (4)

(bd) "Controlled substance analog" has the meaning given

in s. 961.01 (4m)

(1g) In any action or proceeding in which it is material to

prove that a person was under the influence of an intoxicant or

had a prohibited alcohol concentration or a specified alcohol

concentration while operating or driving a motor vehicle or, if

the vehicle is a commercial motor vehicle, on duty time, while

Operating a motorboat, except a sailboat operating under sail

alone, while operating a snowmobile, while operating an all-

terrain vehicle or while handling a firearm, evidence of the

amount of alcohol in the persons blood at the time in question,

as shown by chemical analysis of a sample of the persons blood

or urine or evidence of the amount of alcohol in the persons

breath, is admissible on the issue of whether he or she was

S5la

under the influence of an intoxicant or had a prohibited alcohol

concentration or a specified alcohol concentration if the sample

was taken within 3 hours after the event to be proved. The

chemical analysis shall be given effect as follows without

requiring any expert testimony as to its effect:

(a)

1. The fact that the analysis shows that the person had an

alcohol concentration of more than 0.0 but less than 0.08 is

relevant evidence on the issue of being under the combined

influence of alcohol and a controlled substance, a controlled

substance analog or any other drug, but, except as provided in

par. (d) or sub. (1m), is not to be given any prima facie effect.

2. The fact that the analysis shows that the person had an

alcohol concentration of more than 0.0 but less than 0.1 is

relevant evidence on the issue of being under the combined

influence of alcohol and a controlled substance, a controlled

substance analog or any other drug but, except as provided in

par. (d) or sub. (1m), is not to be given any prima facie effect.

(b) Except with respect to the operation of a commercial

motor vehicle as provided in par. (d), the fact that the analysis

shows that the person had an alcohol concentration of more

than 0.04 but less than 0.1 is relevant evidence on the issue of

intoxication or an alcohol concentration of 0.1 or more but is

not to be given any prima facie effect.

(bd) Except with respect to the operation of a commercial

motor vehicle as provided in par. (d), the fact that the analysis

shows that the person had an alcohol concentration of more

than 0.04 but less than 0.08 is relevant evidence on the issue of

intoxication or an alcohol concentration of 0.08 or more, but is

not to be given any prima facie effect.

alcohol concentration of 0.1 or more is prima facie evidence

that he or she was under the influence of an intoxicant and is

prima facie evidence that he or she had an alcohol

52a

concentration of 0.1 or more.

(cd) In cases involving persons who have 2 or more prior

convictions, suspensions or revocations, as counted under s.

343.307 (1), the fact that the analysis shows that the person had

an alcohol concentration of 0.08 or more is prima facie

evidence that he or she was under the influence of an intoxicant

and is prima facie evidence that he or she had an alcohol

concentration of 0.08 or more.

(d) The fact that the analysis shows that the person had an

alcohol concentration of 0.04 or more is prima facie evidence

that he or she was under the influence of an intoxicant with

respect to operation of a commercial motor vehicle and is prima

facie evidence that he or she had an alcohol concentration of

0.04 or more. |

(1m) In any action under s. 23.33 (4c) (a) 3., 30.681 (1)

(bn), 346.63 (2m) or (7) or 350.101 (1) (c), evidence of the

amount of alcohol in the persons blood at the time in question,

as shown by chemical analysis of a sample of the persons blood

or urine or evidence of the amount of alcohol in the persons

breath, is admissible on the issue of whether he or she had an

alcohol concentration in the range specified in s. 23.33 (4c) (a)

3., 30.681 (1) (bn), 346.63 (2m) or 350.101 (1) (c) or an alcohol

concentration above 0.0 under s. 346.63 (7) if the sample was

taken within 3 hours after the event to be proved. The fact that

the analysis shows that the person had an alcohol concentration

of more than 0.0 but not more than 0.1 is prima facie evidence

that the person had an alcohol concentration in the range

specified in s. 23.33 (4c) (a) 3., 30.681 (1) (bn), 346.63 (2m) or

350.101 (1) (c) or an alcohol concentration above 0.0 under s.

346.63 (7)

(2) The concentration of alcohol in the blood shall be taken

prima facie to be three-fourths of the concentration of alcohol

in the urine.

(3) If the sample of breath, blood or urine was not taken

53a

within 3 hours after the event to be proved, evidence of the

amount of alcohol in the persons blood or breath as shown by

the chemical analysis is admissible only if expert testimony

establishes its probative value and may be given prima facie

effect only if the effect is established by expert testimony.

(4) The provisions of this section relating to the

admissibility of chemical tests for alcohol concentration or

intoxication shall not be construed as limiting the introduction

of any other competent evidence bearing on the question of

whether or not a person was under the influence of an

intoxicant, had a specified alcohol concentration or had an

alcohol concentration in the range specified in s. 23.33 (4c) (a)

3., 30.681 (1) (bn), 346.63 (2m) or 350.101 (1) (c).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.