# Appendix — Faust v. Wisconsin

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1415%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1089

## Text

ia
TABLE OF CONTENTS
Appendix Page

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:

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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.

2a

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

3a

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

4a

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

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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:

6a

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

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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

8a

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]

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9a

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).

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[*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:

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(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.

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[*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

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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.

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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

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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.

I

[*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."

5

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).

Il

[*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)

(c) "Drug" has the meaning specified in s. 450.01 (10)

(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.

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

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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1415%3A2. Public record. Not legal advice.