Petition for Writ of Certiorari — Krajewski v. Wisconsin

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OFFICE OF THE CLERK

Docket No.

IN THE SUPREME COURT

OF THE UNITED STATES

STATE OF WISCONSIN,

Respondent,

-VS-

JAY D. KRAJEWSKI,

Petitioner.

On Writ of Certiorari to the

Supreme Court for the State of Wisconsin

PETITION FOR WRIT OF CERTIORARI AND

APPENDIX

Christopher A. Mutschler, Esq.

State Bar No. 1017494

Counsel of Record

ANDEREGG & MUTSCHLER, LLP

845 South Main Street, Suite 120

Fond du Lac, WI 54935

Telephone 920.921.9299

———.

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QUESTION PRESENTED FOR REVIEW

WHETHER THE WISCONSIN SUPREME COURT

CIRCUMVENTED THIS COURT’S HOLDING IN

RICHARDS v. WISCONSIN, 520 U.S. 385 (1997), AND

CREATED A “DRUNK DRIVING” EXCEPTION TO THE

FOURTH AMENDMENT BY PERMITTING IN DRUNK

DRIVING CASES THE FORCIBLE WITHDRAWAL OF

BLOOD SAMPLES FROM SUSPECTS WHO ARE

OTHERWISE WILLING TO SUBMIT TO AN

ALTERNATIVE CHEMICAL TEST OF THE SAME

EVIDENTIARY VALUE AS A BLOOD TEST?

TABLE OF CONTENTS

TABLE OF AU TIIURIRO occ kceseesheweentueves iv

CITATION OF OPINIONS AND ORDERS ENTERED . 1

STATEMENT OF JURISDICTION ..............0.. 2

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED IN THE CASE ......... 3

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SIA SENGICE CAF PIES «5505 ge meee cen ees 5

pote ere rrr er ore me ere hres 7

I. THE WISCONSIN SUPREME COURT HAS

CIRCUMVENTED THIS COURT’S HOLDING IN

RICHARDS v. WISCONSIN, 520 U.S. 385 (1997),

AND CREATED A PER SE “DRUNK DRIVING”

EXCEPTION TO THE FOURTH AMENDMENT.

B. How Richards Has Been Eviscerated. ....9

ad Circumvention of the Fourth Amendment's

Warrant Requirement Creates a More

Significant Problem in Wisconsin Than in

Other States Because a First Offense Drunk

Driving Case Is Not Deemed by the

Legislature to Be Criminal, But Rather, Is

Handled As a Purely Civil Matter. ..... 13

II. © CONSTITUTIONAL “REASONABLENESS” IS

VIOLATED WHEN DECISIONS LIKE KRAJEWSKI

ARE ALLOWED TO STAND. .............. 14

CONCLUSION

ili

TABLE OF AUTHORITIES

Federal Constitutional Provisions:

SPR OED oe does twasdgavenes in passim

Federal Statutory Provisions:

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Federal Case Law:

Camara v. Municipal Court, 387 U.S. 523 (1967) .. 14-15

Ohio v. Robinette, 519 U.S. 33 (1996) ............ 14-15

Preston v. United States, 376 U.S. 364 (1964) ........ 16

Richards v. Wisconsin, 520 U.S. 385 (1997) .... in passim

Schmerber v. California, 384 U.S. 757 (1966) .. 11, 15-16

State Statutes:

Wisconsin Statute § 346.63(1)(a) ............. 3,4, 5,6

Wisconsin Statute § 346.63(1)(b) ............. 3, 4, 5, 6

Wisconsin Statute § 346.65(2)(a) ................ 3, 13

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Wisconsin Statute § 346.65(2)(b), et De Tec ewt CLT 3, 13

Wiscousin Statute § 885.235 ..................... 18

Wisconsin Statute § 974.05(1)(d)2. .................. 5

Case Law (State):

State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d th. <j)

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CRAG HEED ESS OREN OEALK OHNO MER SE Odie bee ee eaae 9, 1S

State v. Krajewski, 2002 WI 97, 519 N.W.2d 33 in passim

State v. Reichl, 114 Wis. 2d 511, 339 N.W.2d 127 (Ct. App.

| PRN S NADAS arene, Sruer al Ae 15

State v. Thorstad, 2000 WI App. 199, 238 N.W.2d 666 . . 5

CITATION OF OPINIONS AND ORDERS ENTERED

Wisconsin Supreme Court Decision:

State v. Krajewski, 2002 WI 97, 648 N.W.2d 385. (See

Appendix A.)

Wisconsin Court of Appeals Decision:

State v. Krajewski, Appellate Case No. 99-3 165-CR (unpubl.

order)(Dated December 5, 2000). (See Appendix B.)

Trial Court Order:

State v. Krajewski, Case No. 99-CF-158 (Entered October

26,1999). (See Appendix C.)

STATEMENT OF JURISDICTION

The decision from which the petitioner seeks review

was released by the Wisconsin Supreme Court on July 10,

2002. There have been no rehearings or extensions of time to

file this petition.

The petitioner believes this Court’s jurisdiction to

review the decision in question on a Writ of Certiorari is

conferred by 28 U.S.C. § 1257(a).

This Petition draws into question the constitutionality

of the State’s practice of forcibly withdrawing blood samples

from suspected drunk drivers. This question, however, does

not concern the application or interpretation of a particular

state statute because authority for the forced withdrawal

emanates from the Wisconsin Supreme Court’s common law

interpretation of the exigent circumstances exception to the

fourth amendment. Accordingly, it appears that 28 U.S.C. §

2403(b) does not apply to the question raised herein.

Nevertheless, given that the Wisconsin Attorney General’s

Office represented the State in the Wisconsin Supreme Court

in this matter, the Petitioner will be serving three copies of

this Writ upon the Attorney General for the State of

Wisconsin.

NSTITUTI L PROV S AND

ATIONS INVOLV HE CASE

Fourth Amendment to the United States Constitution:

The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.

Wisconsin Statute § 346.63(1)(a)-(b):

Operating under the influence of intoxicant or other drug.

(1) No person may drive or operate a motor vehicle while:

(a) Under the influence of an intoxicant, a controlled

substance, a controlled substance analog or any combination

of an intoxicant, a controlled substance and a controlled

substance analog, under the influence of any other drug to a

degree which renders him or her incapable of safely driving,

or under the combined influence of an intoxicant and any

other drug to a degree which renders him or her incapable of

safely driving; or

(b) The person has a prohibited alcohol concentration.

Wisconsin Statute § 346.65(2)(a) & (b): (2) Any person

violating s. 346.63(1):

(a) Shall forfeit not less than $150 nor more than

$300, except as provided in pars. (b) to (f).

(b) Except as provided in par. (f), shall be fined not

less than $350 nor more than $1,100 and imprisoned for not

less than 5 days nor more than 6 months if the number of

convictions under ss. 940.09(1) and 940.25 in the person’s

lifetime, plus the total number of suspensions, revocations

and other convictions counted under s. 343.307(1) within a

10-year period, equals 2, except that suspensions, revocations

or convictions arising out of the same incident or occurrence

shall be counted as one.

STATEMENT OF THE CASE

The Petitioner, Jay D. Krajewski, was charged in

Jefferson County Circuit Court with Operating a Motor

Vehicle While Intoxicated-Fifth Offense, contrary to Wis.

Stat. § 346.63(1)(a), and Operating a Motor Vehicle With a

Prohibited Alcohol Concentration-Fifth Offense, contrary to

Wis. Stat. § 346.63(1)(b). Mr. Krajewski plead not guilty to

both charges.

Mr. Krajewski filed several pre-trial motions which

were heard on July 27, and August 10, 1999, before the

Circuit Court for Jefferson County, the Honorable Jacqueline

R. Erwin presiding. (R18.) Among these motions was a

motion challenging the constitutionality of the forcible

withdrawal of blood from Mr. Krajewski’s under the auspices

of the exigent circumstances exception to the fourth

amendment. More specifically, Mr. Krajewski’s motion

averred that an exigency ceased to exist when Mr. Krajewski

indicate a willingness to submit to an alternative form of

chemical testing of equal evidentiary value to the blood test.

(/d..) The court granted this latter motion, and suppressed the

blood test result obtained by the State. (R33 & R34;

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Appendix C.) On April 17, 2000, the State appealed from the

circuit court’s suppression order as is its procedural right

under Wis. Stat. § 974.05(1)(d)2..

On appeal, the Wisconsin Court of Appeals summarily

reversed the decision of the lower court based upon its earlier

holding in State v. Thorstad, 2000 WI App. 199, 238 N.W.2d

666. Thereafter, Mr. Krajewski petitioned the Wisconsin

Supreme Court for review.

On May 8, 2001, the Wisconsin Supreme Court

accepted Mr. Krajewski’s petition for review, and ordered

briefs and oral argument. On July 10, 2002, after briefing and

oral argument, the Wisconsin Supreme Court issued a five-

person majority opinion affirming the order of the court of

appeals. State v. Krajewski, 2002 WI 97, 519 N.W.2d 33.

It is from that adverse decision of the Wisconsin

Supreme Court that Mr. Krajewski now seeks review in this

Court.

STATEMENT OF THE FACTS

On May 20, 1999, the Petitioner, Jay D. Krajewski,

was charged in a criminal information with felony operating

a motor vehicle while intoxicated (OWI), contrary to Wis.

Stat. § 346.63(1)(a), and one count of felony operating with

a prohibited alcohol concentration (PAC), contrary to Wis.

Stat. § 346.63(1)(b).

Following a preliminary hearing on May 20, 1999, at

which Mr. Krajewski was bound over for trial, Mr. Krajewski

filed a motion to suppress the blood test results obtained from

him on the ground that his agreement to submit to a breath

test caused the exigent circumstances which otherwise would

have justified a forcible withdrawal of blood from him to

dissipate, and thereby, any forcible withdrawal would no

longer be reasonable under the fourth amendment. (R18.) A

suppression hearing was held on July 27 and August 10,

1999, and following briefing, the circuit court entered a

written decision and order granting the defendant’s motion to

suppress (R33; R34; Appendix C at C4-C12).

In its written order, the circuit court made the

following findings of fact. After Mr. Krajewski was arrested,

he was brought to Countryside Home, a nursing home

authorized to conduct blood draws, where he was read

Wisconsin’s implied consent warnings and asked to submit to

a blood test. (R33:5-7.) Mr. Krajewski stated that he was

afraid of needles and requested a breath test rather than a

blood test. (R33:5-6.) The court found that Mr. Krajewski

“submitted to the test under protest because officers told him

the blood would be withdrawn with or without his

cooperation.” (R33:5.) Ultimately, Judge Erwin concluded

that Mr. Krajewski’s fourth amendment rights had been

violated by the forcible withdrawal because of his willingness

to otherwise cooperate by providing the state with a breath

sample.

The State urged the court to reject Mr. Krajewski’s

position on several grounds. For example, the court rejected

the state’s argument that a blood test was more timely

available than the alternate Krajewski requested, concluding

that if Mr. Krajewski’s request for a different test had been

honored when made at the Countryside Home, the breath test

would be at least as timely as the blood test which was

subsequently conducted at Fort Atkinson Memorial Hospital.

(R 33:6-7.) The court further concluded that the state did not

offer any evidentiary support for its position that triers of fact

accept blood test results more readily than breath or urine

analysis. (R33:7.)

The court concluded that “where, as here, an equally

valid test is available with the defendant’s consent, the

exigent circumstance exception became _ unavailable.”

(R33:7.) The court held that “[w]Jhen consent to a less

intrusive seizure meets a coerced or forcible seizure, the latter

method is unreasonable.” (Jd).

ARGUMENT

I. THE WISCONSIN SUPREME COURT HAS

CIRCUMVENTED THIS COURT’S HOLDING

. IN RICHARDS vy. WISCONSIN, 520 U.S. 385

(1997), AND CREATED A PER SE “DRUNK

DRIVING” EXCEPTION TO THE FOURTH

AMENDMENT.

A, Introduction.

This Court must accept jurisdiction over Mr.

Krajewski’s case if it has any hope of teaching a renegade

lower court to be obedient to its precedent instead of

circumventing that precedent by simply ignoring it. As bold

as this allegation sounds, when reviewing the decision of the

Wisconsin Supreme Court in State v. Krajewski, 2002 WI 97,

x, 3

519 N.W.2d 33, this Court will appreciate that the bravado of

the foregoing statement is appropriate because the Wisconsin

Supreme Court simply used Krajewski as the vehicle to

dispose of the warrant requirement in drunk driving cases,

contrary to this Court’s holding in Richards v. Wisconsin, 520

U.S. 385 (1997).

In Richards, this Court sent an unmistakably explicit

message to the Wisconsin Supreme Court that it was not to

create per se exceptions to the fourth amendment’s warrant

requirement for the sole purpose of making the law

enforcement officer’s job more expedient. Despite the

unambiguous message delivered in Richards, the Wisconsin

Supreme Court utterly disregarded the Richards

admonishment and carved out another per se exception to the

warrant requirement—this time in drunk driving cases as

opposed to drug cases.

The problem in this case is succinctly and accurately

described by the dissenting justices in Krajewski as follows:

The majority sets forth a blanket rule employing

the exigent circumstances exception allowing

forced blood draws in OWI cases. Such a blanket

exception to the warrant requirement runs afoul of

the Fourth Amendment, and renders meaningless

the option of ever securing a search warrant for an

OWI blood draw.

Id. at $66 (emphasis added). With the issue thus identified,

attention may now be paid to how the majority’s opinion

undermines the Warrant Clause.

B. How Richards Has Been Eviscerated.

Much of the problem with the decision in Krajewski

is derivative not only from how the Wisconsin Supreme Court

disregarded this Court’s decision in Richards, but also of how

the Wisconsin Supreme Court used its own precedent, namely

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

as the tool by which to avoid the rigors of Richards.

Bohling was a case in which it was determined that

“reasonable suspicion,” rather than “probable cause,” was the

condition precedent to employing the exigent circumstances

exception to the fourth amendment as the justification for

forcibly withdrawing a blood sample from a suspected drunk

driver who revokes his implied consent to chemical testing.

Id. at 523.

A portion of the Bohling decision was devoted to

developing a test for determining when a suspect’s refusal to

submit to a blood draw should be honored in lieu of pursuing

a forcible withdrawal of blood under the exigent

circumstances exception to the fourth amendment. The

Bohling court held, inter alia, that if the accused presents a

“reasonable objection” to the blood draw, the draw would not

be allowed under the exigent circumstances exception to the

fourth amendment. Jd. at 533-34.

In the Krajewski decision, however, the Wisconsin

Supreme Court perverted Bohling in such a way that it was

used to support the proposition that there is a per se exigency

in a drunk driving case due to the dissipation of alcohol from

the body which abrogates the need to ever apply for a warrant

because of the exigency’s ostensible omnipresence.

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;

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Samana ii i a i ia ann me:

Because the dissenting justices in Krajewski penned

a cogent and compelling description of the problems inherent

in the majority’s position as it relates to both the disregard of

Richards and the corruption of Bohling, it is instructive to

quote the dissent at length here:

The Supreme Court's decision in Richards thus

calls into question the basis for Bohling. Richards,

along with this court's statement in Bohling that

exigent circumstances in OWI cases are based

"solely on the fact that alcohol rapidly dissipates

in the bloodstream,...., "suggests that Bohling

embodies an impermissible blanket exception to

the warrant requirement.

This blanket exception in Bohling may

have been blurred by the court's articulation of the

four factors that must be satisfied to justify a

warrantless blood draw. At least some of these

factors suggested that the determination of

whether a given warrantless search was

reasonable remained case-by-case based on

individualized circumstances. Today's majority

opinion brings Bohling into focus. In practice,

application of the four factors rarely, if ever,

results in an individualized determination of

reasonableness, and the exigent circumstances

exception for blood draws in OWI cases

embodies the type of blanket rule forbidden

under Richards.

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Any veil of uncertainty created by

disparate language within Bohling is lifted by the

majority opinion. Under the majority's opinion, if

not also before it, the exigent circumstances

exception for blood draws in OWI cases is a

blanket rule that runs afoul of Richards.

Moreover, the majority's blanket rule runs

afoul of its own framework. The majority opinion

states that a law enforcement officer who arrests"

a person for operating under the influence has

"three options for obtaining a blood sample," one

of which is that the officer "may seek a search

warrant to secure a blood draw." Majority op. at

| 42. However, because an officer may now

obtain a forced blood draw without a warrant in

virtually every case where the suspect refuses the

test, the availability of this third "option" is

rendered meaningless.

Finally, I note that the majority opinion

discusses obtaining a blood draw to test for

controlled substances. The majority states:

"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." Majority op. at J{ 40.

The majority's discussion referencing

testing for controlled substances needs

clarification to the extent it might be interpreted

as an endorsement of any future application of the

exigent circumstances exception to testing for

controlled substances.

ihe

Second, and more importantly, any

Suggestion that the exigent circumstances

exception should apply to testing for controlled

substances is inapposite to the emergency nature

of the exception. Citing Schmerber v. California,

384 U.S. 757, 770-71 (1966), the majority

emphasizes that the "dissipation of alcohol in the

blood stream constituted an emergency because it

threatened the destruction of evidence." Majority

op. at J] 27 (internal quotations omitted).

The same purported threat of rapid

destruction of evidence may not be present when

considering controlled substances. Indeed,

evidence of controlled substance use generally

dissipates much more slowly from the body than

evidence of alcohol use.

Krajewski, 2002 W197 at {773-86 (citation omitted; emphasis

- added).

The foregoing quote, while lengthy, makes Mr.

Krajewski’s point for him, namely: the Wisconsin Supreme

Court has done away with the need for law enforcement

officers to ever apply for a warrant in a drunk driving case.

By creating a per se “drunk driving exception” to the fourth

amendment, the Krajewski majority has violated the

reasonableness standard imposed by that very provision of the

constitution. If this Court does not act, not only will there be

a plethora of warrantless, forced blood withdrawals in

Wisconsin, but the future extension of this decision into other

areas of criminal law will surely continue the slide down the

slippery slope of eviscerating the fourth amendment. This

Court must act to prevent what will ultimately be the most

tragic landslide appreciable in Wisconsin jurisprudence.

C Circumvention of the Fourth Amendment’s

Warrant Requirement Creates a More

Significant Problem in Wisconsin Than in

Other States Because a First Offense Drunk

Driving Case Is Not Deemed by the

Legislature to Be Criminal, But Rather, Is

Handled As a Purely Civil Matter.

Wisconsin is fairly unique in that its first offense

operating while intoxicated cases are purely civil in nature

and are not prosecuted criminally under any circumstance.

See Wis. Stat. § 346.65(2)(a). When the Krajewski holding

is applied to a first offense drunk driving case, a circumstance

is created in which law enforcement officer’s are given per

se authority to avoid the warrant requirement and forcibly

withdraw blood from accused drunk drivers because the

“exigency” of the situation compels the need to gather

evidence quickly. Disturbingly, Krajewski permits officers to

avoid the warrant requirement in a type of case our state

legislature has not even seen fit to characterize as criminal.

A rhetorical question drives this point home: Would this

Court want the exigent circumstances exception to the fourth

amendment to be used to circumvent the warrant requirement

and thereby justify per se the forcible withdrawal of blood in

cases which the government does not prosecute criminally,

but rather prosecutes solely as civil forfeiture violations? Cf

Wis. Stat. § 346.65(2)(a) with § 346.65(2)(b), et seq..

The reason things are called “exigent” under the fourth

amendment is related, at least in part, to the fact that the

violation which is being investigated is very serious. It is

these “heightened concerns” which give rise to the notion that

the circumstances of the situation may permit an avoidance of

the need to obtain a warrant. Those “heightened concerns”

are to some extent derivative of the fact that the case being

investigated is criminal in nature, and therefore, very serious

when compared to civil forfeiture actions. Unfortunately for

_ first offenders in Wisconsin, those heightened concerns

attendant to criminal cases vis a vis their very nature is not

present in the first offense drunk driving case—as it is purely

civil—and therefore, under the auspices of Krajewski, forcible

blood withdrawals will never be scrutinized by a magistrate

because law enforcement officers will never have need to

apply for a warrant. It shocks the judicial conscience to think

that the constitution would look favorably upon

circumvention of the warrant requirement in a case which is

not even being prosecuted criminally. Those are the types of

cases which are deserving ofa greater constitutional

protection, not lesser. .

Il. CONSTITUTIONAL “REASONABLENESS” IS

VIOLATED WHEN DECISIONS LIKE

KRAJEWSKI ARE ALLOWED TO STAND.

It is one of the most well-settled and fundamental of

all constitutional rules that the test employed under the fourth

amendment by which the conduct of law enforcement officers

is evaluated is one of reasonableness. U.S. Const. amend. IV;

see, e.g., State v. Boggess, 115 Wis. 2d 443, 448-49, 340

N.W.2d (1983); see also Camara v. Municipal Court, 387

U.S. 523, 528 (1967). To pass constitutional muster under the

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fourth amendment a search must be reasonable. Ohio vy.

Robinette, 519 U.S. 33, (1996). It is this standard to which all

government conduct must eventually conform.

Contrary to the Wisconsin Supreme Court’s implied

assertion, the purpose of the fourth amendment is not to

continually provide law enforcement officers with new ways

of obtaining and securing evidence from individuals. Rather,

"[t}]he fourth amendment's purpose is to prevent. . . oppressive

interference by law enforcement officials with the .

personal security of individuals." State v. Reichl, 114 Wis. 2d

511, 339 N.W.2d 127 (Ct. App. 1983). As earlier noted, this

means that the test employed under the fourth amendment by

which the cenduct of law enforcement officers is evaluated is

one of reasonableness. U.S. Const. amend. IV; see, e.g.,

Boggess, 115 Wis. 2d at 448-49; see also Camara, 387 U.S.

at 528; Robinette, 519 U.S. 33.

This reasonableness test is unavoidable. Simply

because something may be allowed under a theory of exigent

circumstance, plain view, search incident to arrest, custodial

search, etc., does not mean that the reasonableness standard

is abandon as a constitutional requirement. Reasonableness

is the umbrella under which all else is measured. As this

Court examines the question presented herein, it must always

appreciate the larger requirement of reasonableness over

asking everything.

With constitutional reasonableness is mind, another

among the problems with the Wisconsin Supreme Court’s

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

399 (1993), is it presupposes that evidence of the accused’s

alcohol concentration will be destroyed unless a blood test is

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Senne ere nme |

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obtained. This is patently unreasonable to assume in light of

how this argument was earlier examined by this Court in

Schmerber v. California, 384 U.S. 757 (1966). In

countenancing forcible withdrawals, this Court made certain

to set forth specific conditions which must first be met,

namely:

(1) _ the officer “reasonably . . . believe[s] that he is

confronted with an emergency, in which the

delay necessary to obtain a warrant, . . .

(2) threatens ‘the destruction of evidence.”

Schmerber, 384 U.S. at 770, quoting Preston v. United States,

376 U.S. 364 (1964). It is this second prong of the Schmerber

test which Mr. Krajewski posits is not present in his case, and

therefore does not “reasonably” justify a forcible withdrawal

of his blood.

The Wisconsin Supreme Court’s decision does not

recognize that an “exigency” is not a fixed circumstance

which, once born, cannot be dissipated. The failure to

recognize that exigencies can themselves dissipate caused the

court to overlook one very important point made by the

Schmerber Court. The specific point to which Mr. Krajewski

refers is the Schmerber Court’s statement that “[i]t would be

a different case if the police ... refused to respect a

reasonable request to undergo a different form of testing

.... Jd. at 760 n.4 (emphasis added).

The foregoing assertion expressly acknowledges that

this Court . based its conclusion of constitutional

reasonableness on the fact that there were no other “request[s

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from the defendant] to undergo a different form of testing,”

and intimates that if there had been, the Schmerber case

“would be . . . different.”

Based upon the Court’s foregoing observation, the

question can be asked: what is the only noteworthy way in

which the Schmerber case could have been different?

Without a doubt the answer must be in holding that the

forcible withdrawal was reasonable. No other substantive

differences could exist which would have merited the

comment the Court made in footnote four. Thus, if meaning

is to be given to this Court’s admission ofa different outcome

when a request for “a different form of testing” is made, this

Court must give effect to Mr. Krajewski’s request for a breath

test and reinstate the trial court’s decision, otherwise, the

language in footnote four will be rendered mere surplusage

instead of being instructive on the point.

Unfortunately for the Wisconsin Supreme Court,

focusing solely on the issue of whether Mr. Krajewski’s

objection to blood testing was reasonable under the

circumstances misses the very point of Mr. Krajewski’s

argument, namely: the exigency dissipated the moment Mr.

Krajewski agreed to submit to an alternative form of chemical

testing, and therefore, the exigent circumstances exception to

the fourth amendment was no longer a viable alternative for

the officer to procure a blood test, and likewise, the

dissipation of the exigency thereby made the Bohling analysis

employed by the court entirely unnecessary and inapplicable.

In other words, the court sought to justify the forcible

withdrawal by examining the reasonableness of Mr.

Krajewski’s objection to testing under the “exigency”of the

circumstances. Such a naive position betrays a lack of

understanding of how the reasonableness requirement of the

fourth amendment must be employed.

In this case, Mr. Krajewski alleges that had the

officers simply permitted him to submit to the breath test as

he requested, his submission would have come within three

hours of the time of his alleged operation, and thereby would

have ostensibly provided the proof of intoxication the State so

desperately sought. Judge Erwin even made a finding that a

breath test “would be at least as timely as the blood test .. . .

“ (R33 at 107.) Under the auspices of Wis. Stat. §.

885.235—which provides that a test gathered within three

hours of the time of driving is prima facie proof of

intoxication—any alleged exigency would have dissipated.

Let there also be no mistake that permitting Mr.

Krajewski to submit to an alternative form of chemical testing

would not have harmed the State in any way. The record is

devoid of anv allegation that a breath test is not as formidable

evidence of intoxication as a blood test. To the contrary,

Judge Erwin made a factual finding that “there is no

evidentiary support of the State’s position that triers of fact

accept blood test results more readily than breath or urine

analyses.” (R33 at 107.) The same presumptions normally

associated with a blood test attach to a breath test as well.

Thus, the State should not be permitted to cry foul.

CONCLUSION

Based upon the foregoing authority, Petitioner

believes that this Court has more than adequate grounds to

accept this case for review.

Dated this $e day of October, 2002.

Respectfully submitted:

ANDEREGG & MUTSCHLER, LLP

wy! acpi ToxEL,

Christophtér A. Mutschler

State Bar No. 1017494

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‘

APPENDIX

TABLE OF CONTENTS

Wisconsin Supreme Court Decision. ......... A101-135

Wisconsin Court of Appeals Decision ......... B101-103

Trial Court Findings and Order .............. C101-110

-100-

STATE v. KRAJEWSKI, 2002 WI 97,

99-3165-CR

State of Wisconsin,

Plaintiff-Appellant,

Jay D. Krajewski,

Defendant-Respondent-Petitioner.

Oral Argument: November 8, 2001.

Opinion Filed: July 10, 2002.

REVIEW of a decision of the Court of Appeals. Affirmed.

For the defendant-respondent-petitioner there were

briefs by Christopher A. Mutschler and Anderegg &

Mutschler, LLP, Fond du Lac, and oral argument by Rex

Anderegg. For the plaintiff-appellant the cause was argued

by Jennifer E. Nashold, assistant attorney general, with whom

on the brief was James E. Doyle, attorney general.

q 1. DAVID T. PROSSER, J. The issue presented in this case

is whether the state may require a warrantless blood draw for

alcohol concentration testing from a person who is arrested on

probable cause for operating a motor vehicle while under the

influence of an intoxicant (OWI), when the person refuses to

submit to a requested blood test under the implied consent

statute but offers to submit to a breath test in lieu of a blood

test.

Appendix A - 101

4 2. The circuit court for Jefferson County, Jacqueline R.

Erwin, Judge, suppressed the results of the blood test

administered to the defendant, Jay D. Krajewski, following

his arrest for OWI. The circuit court concluded that a

non-consensual blood draw is unreasonable and

unconstitutional when a defendant offers to submit to an

available and less intrusive method of testing for blood

alcohol concentration. The court of appeals reversed,

determining that the defendant's case was controlled by this

court's decision in State v. Bohling, 173 Wis.2d 529, 494

N.W.2d 399 (1993). The court of appeals ruled that the

warrantless blood draw met the requirements established in

Bohling and was lawful. State v. Krajewski, No. 99-3165-CR,

unpublished order a 3 (Wis.Ct.App. Dec. 5, 2000).

4] 3. We accepted Krajewski's petition for review and hold that

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. We

conclude that the warrantless blood draw in this case was

properly based on exigency and complied with factors

enumerated in Bohling. Accordingly, we affirm the decision

of the court of appeals.

Appendix A - 102

I. FACTUAL BACKGROUND

4 4. The facts stated below are based upon testimony at

preliminary and suppression hearings as well as stipulations

by the parties, documents in the record, and the factual

findings of the circuit court. For the purpose of reviewing the

circuit court's decision to suppress Krajewski's blood test, the

test results are not in dispute.

4 5. Wisconsin State Trooper Richard Torrez was on duty in

the early morning hours of May 2, 1999. At approximately

1:18 a.m., he stopped a Volkswagen Jetta traveling west on

Interstate 94 near Johnson Creek in Jefferson County. The

vehicle was driven by Jay Krajewski. Trooper Torrez

observed the Krajewski vehicle traveling along the fog line on

the right side of the highway. After hugging the fog line for

approximately 1,000 feet, the vehicle veered toward the center

of the highway, then moved back across the fog line close to

the rumble strips for approximately 2,000 feet. The vehicle

eventually traveled back across the fog line to the center of

the right lane, then switched into the left lane, speeding up by

10 miles per hour as it changed lanes. Torrez followed

Krajewski into the left lane, prompting the Krajewski vehicle

to move back into the right lane where it subsequently exited

the highway to enter a rest area. At that point, Torrez pulled

Krajewski over for operating his vehicle erratically and in

excess of the speed limit.

4 6. When Torrez approached the vehicle, Krajewski told him

that he did not have a driver's license but had a state

identification card. Torrez noticed that Krajewski's breath

smelled of an intoxicant. Krajewski offered that he had

consumed three or four beers in the prior 12 hours and had

Appendix A - 103

last consumed alcohol about four hours before he was

stopped.[fn1] Krajewski told Torrez that he was driving from

Milwaukee to Adams County to check on his parents who had

left a phone message early in the morning of May 1, asking

him to call them as soon as possible. Krajewski said he was

worried about his parents because he had been unable to

contact them during the day.

{| 7. Krajewski agreed to perform field sobriety tests.

According to Torrez, Krajewski failed each of the three tests

administered.[fn2] Krajewski then submitted to a preliminary

breath test (PBT) pursuant to Wis. Stat. § 343.303

(1997-98).[fn3] The results indicated that the alcohol

concentration in Krajewski's blood was 0.20.[fn4] Torrez

arrested Krajewski for operating a motor vehicle while under

the influence of an intoxicant, contrary to Wis. Stat. §

346.63(1)(a).[fn5]

4 8. Trooper Torrez testified at the suppression hearing that he

was aware that Krajewski had four prior convictions for

driving while intoxicated. He also knew that the State Patrol

had a policy to request a blood sample for second and

subsequent offenses. Consequently, Torrez transported

Krajewski to Countryside Home (Countryside) — a county

nursing home in Jefferson that administers blood draws — to

obtain a blood sample.

4 9. When they arrived, Torrez read the "informing the

accused" warnings found in Wis. Stat. § 343.305(4), then

asked Krajewski if he would submit to a blood draw.

Krajewski refused. Krajewski testified that he told Torrez,

"that I did not — that I had had a fear of needles and that I did

not want to have blood withdrawn from me." Krajewski

Appendix A - 104

further testified that he offered to give either a breath or a

urine sample "clearly at least twice."

4 10. When Trooper Torrez was told that Countryside's policy

was not to draw blood from a person who did not consent to

a blood draw, he decided to take Krajewski to Fort Atkinson

Memorial Hospital, which he believed would draw blood

from a non-consenting person. At the hospital, Torrez again

read the informing the accused form to Krajewski. Torrez

testified that Krajewski again refused to submit to a blood

draw but said he would "dance circles" if he were allowed to

contact his parents. Torrez took this to mean that Krajewski

would submit to a blood draw if he could first check on his

parents.

4 11. Sergeant Paul Wallace of the Jefferson County Sheriff's

Department, one of four other officers who had been called to

meet Torrez at the hospital,[fn6] then spoke to Krajewski,

telling him that the officers were going to obtain a blood

sample with or without his consent. Wallace testified that

Krajewski told him that he wanted to contact his parents.

According to Wallace, Krajewski stated that he did not want

to take a test for alcohol concentration because if he

- submitted he would be "[expletive]." Sergeant Wallace told

Krajewski that after the blood draw he would help Krajewski

contact his parents.

{ 12. Krajewski refused to submit but advised Sergeant

Wallace that he would agree not to resist physically. A

registered nurse obtained two blood specimens at

approximately 3:25 a.m.[fn7] The resulting blood test showed

that the alcohol concentration in Krajewski's blood was 0.219

grams per milliliter, significantly greater than the 0.08 limit

Appendix A - 105

for persons with two or more previous convictions,

suspensions, or revocations. See Wis. Stat. § 885.235(1g)(cd).

After the blood draw, Krajewski was taken to the Jefferson

County Jail. Sergeant Wallace contacted Adams County

authorities, who contactéd Krajewski's parents. They in turn

called to report that they were fine.

{ 13. The state charged Krajewski with one count of operating

a motor vehicle while intoxivated, as a fifth or subsequent

offense, contrary to Wis. Stat. §§ 346.63(1)(a), 346.61 and

346.65(2)(e); one count of operating a motor vehicle with a

prohibited alcohol concentration, as a fifth or subsequent

offense, contrary to Wis. Stat. §§ 346.63(1)(b), 346.61 and

346.65(2)(e); and one count of operating after revocation, as

a second offense, contrary to Wis. Stat. §§ 343.44(1) and

351.08.

4 14. After the preliminary hearing, Krajewski filed a motion

to suppress the results of the blood test, alleging that the

seizure of his blood had violated his rights under-+he state and

federal constitutions.[fn8]

4 15. Both Trooper Torrez and Sergeant Wallace testified that

they could not remember whether Krajewski offered to

submit to a breath or urine test. However, the circuit court

stated in its order that "[Krajewski] testified unequivocally

that he requested a breath test instead of a blood test due to

his fear of needles." It found that Krajewski "asked to take a

breath test based on fear of needles. A blood test was,

nonetheless, taken pursuant to the officer's policy and stated

intent to take it by force if necessary." The circuit court

determined that Krajewski had impliedly consented to a blood

test pursuant to Wis. Stat. § 343.305, but had withdrawn his

Appendix A - 106

consent. It found that the officers could have timely

administered a breath test as requested, and that after initially

refusing the blood test, Krajewski had submitted "under

protest."

{| 16. The circuit court acknowledged that under Bohling,

"forcible blood draws were available under the exigent

circumstances exception to the Fourth Amendment."

However, relying upon Nelson v. City of Irvine, 143 F.3d

1196 (9th Cir. 1998), the court determined that exigent

circumstances are not present when a defendant consents to

undergo a test other than a blood test. It ruled that "[W]hen

consent to a less intrusive seizure meets a coerced or forcible

seizure, the latter method is unreasonable." It therefore

granted Krajewski's motion to suppress. This was the order

reversed by the court of appeals.

Il. STANDARD OF REVIEW

4 17. For the purposes of this appeal, there are no genuine

issues of material fact. We are presented with the question

whether the results of a test for alcohol concentration were

obtained in compliance with the exigent circumstances

exception to the warrant requirement of the Fourth

Amendment to United States Constitution and Article I,

Section 11 of the Wisconsin Constitution. This is a question

of law that this court reviews de novo. Bohling, 173 Wis.2d

at 533.

Ill. ANALYSIS

q 18. This case requires us to decide fundamental questions

about the exigency exception to the warrant requirement of

Appendix A - 107

the Fourth Amendment[fn9] and its relationship to

Wisconsin's implied consent statute.

A. Implied Consent

4 19. 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 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. Wis. Stat. §

343.305(2).[fn10]

q 20. Under Wis. Stat. § 343.305(3)(a), a law enforcement

officer may request that a person arrested for OWI provide

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

testing. A law enforcement officer must then read the implied

consent warning to the person, explaining the nature of

implied consent, warning of the consequences of refusal to

submit to a test of the officer's choice, warning about the

consequences of a prohibited alcohol concentration, and

informing the person of his or her right to request an

alternative test. Wis. Stat. § 343.305(4); State v. Piddington,

2001 WI 24, J 1 n. 3, 241 Wis.2d 754, 623 N.W.2d 528.

q 21. The "alternative test" referred to in the statute is not a

test of the person's choice in lieu of the test requested by the

officer. It is an additional test. The statute reads in part:

If you take all the requested tests, you may choose to take

further tests. You may take the alternative test that this law

enforcement agency provides free of charge. You also may

have a test conducted by a qualified person of your choice at

Appendix A - 108

your expense. You, however, will have to make your own

arrangements for that test. Wis. Stat. § 343.305(4).

{| 22. If a person refuses to submit to the officer's requested

test, the officer is required immediately to take possession of

the person's license and prepare a notice of intent to revoke.

Wis. Stat. § 343.305(9)(a). ifa court later determines that the

person improperly refused to provide the requested sample or

samples for testing, the court is required to revoke the

person's operating license for a period of at least one

year.[fn11] Wis. Stat. § 343.305(10)(a) and (b)(2).

{ 23. In this case, the circuit court found that Jay Krajewski

"impliedly consented to the chemical testing of his blood by

driving. He withdrew that consent and will suffer the

consequences of his refusal if it is proved." The circuit court

therefore concluded that "[t]he seizure was outside the

provisions of § 345,305 [sic] Wis. Stats." The parties do not

dispute the circuit court's finding that the blood draw in this

case was not conducted pursuant to Wis. Stat. § 343.305.

B. Searches Outside Implied Consent Statute

4 24. The Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution recognize and protect the right of the people "to

be secure in their persons, houses, papers, and effects against

unreasonable searches and seizures."(fnl2] U.S. Const.

amend. IV. In most instances, searches by law enforcement

should be conducted pursuant to a search warrant. State v.

Prober, 87 Wis.2d 423, 433, 275 N.W.2d 123 (Ct.App. 1978).

Searches conducted without a warrant are deemed

unreasonable per se unless they fall within one of "a few

Appendix A - 109

LL Pe ee ee

_—

specifically established and well-delineated exceptions."

Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971);

State v. Phillips, 218 Wis.2d 180,196, 577 N.W.2d 794

(1998); see also State v. Murdock, 155 Wis.2d 217, 227, 455

N.W.2d 618 (1990) (citing Texas v. Brown, 460 U.S. 730,

735-36 (1983) ("a few carefully delineated exceptions")).

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 (1973); Schmerber v. State of California, 384

U.S. 757, 771 (1966).

C. Warrantless Searches

q 25. Wisconsin Stat. § 343.305 does not explicitly authorize

the warrantless search of a driver who withdraws consent and

refuses to provide a requested sample for testing under the

implied consent statute. However, the text clearly recognizes

the possibility of such a search if the search is based upon

authority outside the statute. It states: "This section does not

limit the right of a law enforcement officer to obtain evidence

by any other lawful means." Wis. Stat. § 343.305(3)(c).

4 26. We considered this contingency in State v. Zielke, 137

Wis.2d 39, 52, 403 N.W.2d 427 (1987). In Zielke, a police

officer induced Zielke to provide a sample of his blood

following his involvement in a fatal automobile accident. The

procedures "in the implied consent law were concededly not

followed." Id. at 40. The circuit court suppressed the results

of the blood test, concluding that the implied consent law was

the exclusive means by which police may obtain chemical test

evidence of driver intoxication. Id. at 41. This court reversed,

Appendix A - 110

stating: "Chemical test evidence may be otherwise legally

obtained if it is seized [1] pursuant to a valid search warrant,

[2] incident to a lawful arrest, [3] under exigent circumstances

supported by probable cause to arrest, or [4] with the consent

of the driver." Id. at 52 (citations omitted). See also State v.

Gibson, 2001 WI App. 71, 9 8, 10, 242 Wis.2d 267, 626

N.W.2d 73; State v. Marshall, 2002 WI App. 73, 251 Wis.2d

408, 9 7-12, 642 N.W.2d 571.

D. Exigent Circumstances

{| 27. The search in this case was based on exigent

circumstances supported by probable cause. The United

States Supreme Court determined in Schmerber, 384 US. at

772, that a warrantless blood draw from a person arrested for

driving while intoxicated was authorized under the exigent

circumstances exception to the warrant requirement of the

Fourth Amendment. The Supreme Court said: "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." Id. at 770. The Court concluded that the

dissipation of alcohol in the blood stream constituted an

emergency because it "threatened ‘the destruction of

evidence." Id. (quoting Preston v. United States, 376 U.S.

364, 367(1964)).

4 28. One of the questions raised by Schmerber was whether

the exigency created by the dissipation of alcohol in the blood

stream justifies a warrantless blood draw in every case in

which there is probable cause to arrest a person for OWI.

Justice Brennan, writing for a deeply divided Court, avoided

a clear answer to that question. He noted that Schmerber's

involuntary blood test had been taken in a hospital

Appendix A - 111

environment, not a "station house." He added that, "Petitioner

is not one of the few who on grounds of fear, concern for

health, or religious scruple might prefer some other means of

testing, such as the ‘breathalyzer’ test petitioner refused." Id.

at 771.

q 29. The Schmerber opinion skirted such issues as whether

the state is ever required to obtain a warrant for a lawfully

arrested person's chemical test foratcohtol concentration and

whether the state is required to respect an arrested person's

choice among chemical tests.

q 30. These questions were taken up in State v. Bohling, 173

Wis.2d 529, 494 N.W.2d 399 (1993), in which this court

expounded on the exigency required for a warrantless blood

draw. In Bohling, the court examined the following issue:

[W]hether the fact that the percentage of alcohol in a person's

blood stream rapidly diminishes after drinking stops alone

constitutes a sufficient exigency [under the relevant

constitutional provisions] to justify a warrantless blood draw

under the following circumstances: (1) the blood draw is

taken at the direction of a law enforcement officer from a

person lawfully arrested for a drunk-driving related violation

or crime, and (2) there is a clear indication that the blood

draw will produce evidence of intoxication. Bohling, 173

Wis.2d at 533 (emphasis added).

q 31. This court concluded that under these circumstances,

"the dissipation of alcohol from a person's blood stream

constitutes a sufficient exigency to justify a warrantless blood

draw." Id.

Appendix A - 112

4 32. The court pounded home the point, explaining that

Schmerber could be read in either of two ways: The rapid

dissipation of alcohol in the blood steam alone constitutes a

sufficient exigency for a warrantless blood draw to obtain

evidence of intoxication following a lawful arrest for drunk

driving; or the rapid dissipation of alcohol in the blood

stream, coupled with other factors such as an accident,

hospitalization, and the lapse of two hours, constitutes exigent

circumstances for a warrantless blood draw. Id. at 539. The

court cliose the former interpretation, thereby rejecting a

requirement that an officer seek a search warrant in the period

immediately following arrest.[fn13]

4] 33. The court stated the test:

[A] warrantless blood sample taken at the direction of a law

enforcement officer is permissible under the following

circumstances: (1) the blood draw is taken to obtain evidence

of intoxication from a person lawfully arrested for a

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

indication that the blood draw will produce evidence of

intoxication, (3) the method used to take the blood sample is

a reasonable one and performed in a reasonable manner, and

(4) the arrestee presents no reasonable objection to the blood

draw. Id. at 533-34.

{ 34. Krajewski attempts to reframe this analysis, asserting

that Bohling is "not instructive" in deciding this case. He

concedes that the rapid dissipation of alcohol in a person's

bloodstream creates an exigency because it threatens the

destruction of evidence and that this exigency justifies a

forcible blood draw when the person refuses to submit to any

chemical test. However, he asserts that once the person offers

—

Appendix A - 113

to submit to a different chemical test, the exigency disappears

and the officer may not proceed with an involuntary test

without a search warrant.

q 35. Krajewski contends that, absent a search warrant, a law

enforcement officer has authority to order an involuntary

blood draw from an arrested person who has requested a

different chemical test only when: (a) there is not enough time

under Wis. Stat. § 885.235 to honor the request;[fn14] (b) the

person has made an unreasonable request for a different

chemical test (such as a test of chemical deposits on hair); or

chemical test. A person's "offer to submit to an alternative

form of testing" is the sine qua non of Krajewski's

"dissipating exigency"theory.

4 36. We reject this analysis. Krajewski is correct in asserting

that the relevant basis for exigency here is that evidence is

likely to be destroyed. See State v. Smith, 131 Wis.2d 220,

230, 388 N.W.2d 601(1986). We do not agree, however, that

the exigency disappears as soon as a person agrees to submit

to a breath test as opposed to a blood test.[fn15]

q 37. The exigency upon which a warrantless blood draw is

premised is the dissipation of alcohol in the blood stream. See

Schmerber, 384 U.S. at 770-71; Bohling, 173 Wis.2d at

539-40. 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.

4 38. The evidence continues to dissipate during any time that

elapses while the person is transported from a hospital to the

site of the instrument for testing breath alcohol. It continues

Appendix A - 114

to dissipate during any wait for the arrival of a certified

instrument operator. See Wis. Admin. Code § TRANS 311.

It continues to dissipate if the person conveniently

regurgitates immediately before the breath test is to be

administered so that the certified operator must wait for 20

minutes before the collection of a breath specimen.[fn16] It

continues to dissipate if the person fails to give a sufficient

breath specimen and/or if the person has a change of heart and !

refuses altogether to submit to a test.

4] 39. There is no assurance that a person who refuses to

consent to a blood draw under the implied consent statute and

refuses to give consent to a blood draw outside the implied

consent statute will peacefully cooperate with authorities in

submitting to a breath test. In State v. Krause, 168 Wis.2d

578, 484 N.W.2d 347 (Ct.App. 1992), a driver with three

OWI convictions refused and resisted law enforcement efforts

to secure a chemical test following his arrest for a fourth

drunk driving incident. When the driver learned that the

police intended to secure a blood sample, he became violently

upset, stating that he did not "believe in needles" and did not

want to get AIDS. At least three sheriff's deputies were

required, at the hospital, to subdue the driver, placing a

pillowcase over his head, tying down his feet, and holding his

arms while a medical technician drew blood. Id. at 585. The

court upheld the reasonableness of the search. The truth is, the

officers would have had equal or greater difficulty obtaining

a valid breath sample from such a recalcitrant person.

q 40. The exigency that exists because of dissipating alcohol

does not disappear until a satisfactory, useable chemical test

has been taken. Securing a breath test rather than a blood test

may not be satisfactory to law enforcement because an officer

Appendix A - 115

RS ee ee ee er

may want to determine whether the person is also under the

influence of controlled substances. Blood samples are the

most direct means of measuring alcohol concentration in the

blood and of obtaining evidence of controlled substances in

the blood. A breath test is not likely to reveal the presence of

a controlled substance. In 1994 the court of appeals reviewed

a case in which a driver's blood test showed a blood alcohol

concentration of only .049% but the concurrent presence of

tetrahydrocannabinol (THC), the active ingredient in

marijuana.[fn17] Having a breath test in hand in that instance

would not have eliminated the exigency.

q 41. 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. State v. Fillyaw, 104 Wis.2d 700, 716, 312

N.W.2d 795 (1981). The person would likely argue that he or

she submitted to the breath test because he or she feared

needles and had no other choice to avoid a blood draw: it was

either a breath test or the feared needle.

q 42. A law enforcement officer who arrests a person for

operating under the influence has three options for obtaining

a blood sample from the person. First, the officer may ask the

person to submit to a blood draw under the implied consent

statute. Second, the officer may order a blood draw based

upon exigent circumstances. Third, the officer may seek a

search warrant to secure a blood draw.[fn18] Ifa person, after

refusing a blood test under the implied consent statute, could

extinguish the legal basis for a warrantless blood draw merely

by agreeing to take a different chemical test, the exigency

exception to the warrant requirement would turn upon the

Appendix A - 116

means used for executing the search rather than the urgency

involved in the steady dissipation of alcohol. In effect, the

arrested person would dictate the terms of investigation,

limiting the police to a single option for a blood test — a

search warrant.[fn19]

{ 43. This is not the law. This court will not vest drivers who

have been arrested for operating under the influence with the

authority to veto constitutional searches to vindicate their

personal choice in police procedure.

4] 44. The state must show probable cause to arrest a person

for a drunk driving offense and probable cause to search that

person for alcohol or controlled substance concentration ifthe

state seeks a search warrant for a blood draw. The exigency

exception approved in Schmerber requires proof of the same

two elements, and these elements can be reviewed in a

suppression hearing following a warrantless search. 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 search without a warrant, including the

requirement of reasonableness.

q 45. Krajewski's arguments do not really bear on exigency.

They bear on the reasonableness requirements in the third and

fourth prongs of the Bohling test, which the state must satisfy.

Under these prongs, the state must show that "the method

used to take the blood sample is a reasonable one and

performed in a reasonable manner," and "the arrestee presents

no reasonable objection to the blood draw." Bohling, 173

Wis.2d at 534.

Appendix A - 117

E. Reasonableness of Blood Test

{ 46. Krajewski does not dispute that a blood draw can be a

legitimate tool for law enforcement officers in a drunk driving

case. Rather, he contends that an involuntary blood draw is

inadmissible when a person offers "to submit to a less

intrusive test."

q 47. Krajewski's argument does not attack the method used

to secure his blood sample, nor does it suggest a less intrusive

method of obtaining a blood specimen from him or others. In

fact, he offers no objection to the manner in which the blood

draw was performed in this case. Krajewski and the State

stipulated that the blood draw was taken in a hospital by a

registered nurse. Thus, the blood draw was effected in a

reasonable manner. See State v. Thorstad, 2000 WI App. 199,

q 15, 238 Wis.2d 666, 618 N.W.2d 240. In short, Krajewski

has no complaint under the third prong of the Bohling test.

F. No Reasonable Objection

q 48. Krajewski does offer several objections to his

involuntary blood draw under the fourth prong. He contends

that he had a fear of needles, that he offered to take a breath

test, that he was entitled to take a "less intrusive" test than a

blood test when he offered to do so, and that he had a right to

refuse medical treatment. We address each of these objections

in turn.

4 49. The circuit court found that "the defendant asked to take

a breath test based on fear of needles." The record does not

provide evidence that Krajewski explained the basis for his

Appendix A - 118

alleged fear; but it does provide evidence — in the testimony

of Sergeant Wallace — that Krajewski was reluctant to take

any chemical test for alcohol concentration and that he

eventually submitted to a blood draw without incident.

Consequently, while we do not dispute for purposes of this

case that Krajewski expressed a fear of needles, we see no

reason to treat his alleged fear as different from an articulated

preference for a different chemical test.

4] 50. In Krause, the defendant told officers that he did not

believe in needles and that he did not want to get AIDS. 168

Wis.2d at 585. The court of appeals correctly observed that

"These isolated comments do not establish that Krause is ‘one

of the few who on grounds of fear, concern for health, or

religious scruple might prefer some other means of testing."

Id. at 588 (citing Schmerber, 384 U.S. at 771).[fn20]

4] 51. The implied consent statute limits the viable excuses of

a medical or physical nature for refusal to submit to a

chemical test: The person shall not be considered to have

refused the test if it is shown by a preponderance of evidence

that the refusal was due to a physical inability to submit to the

test due to a physical disability or disease unrelated to the use

of alcohol, controlled substances, controlled substance

analogs or other drugs. Wis. Stat. § 343.305(9)(a)5.c.

4 52. We think this provision represents a valid standard to

apply in situations outside the statute. It is a standard that will

permit a different chemical test for a person who shows that

he or she is a hemophiliac or suffers from some other ailment

that renders him or her unable to reasonably submit to a blood

test. Krajewski has not satisfied this standard. Ironically, a

person who alleges fear of needles to prevent a blood draw

Appendix A - 119

Ce ee - - ane

may in fact be physically unable, as the result of an accident,

to submit to a breath test. This is another situation in which

exigency clearly remains, even after the person offers to take

a different chemical test.

4 53. Krajewski objects that it was not reasonable to subject

him to an involuntary blood draw when he offered to take a

breath test. A similar argument was presented in State v.

Wodenjak, 2001 WI App. 216, 247 Wis.2d 554, 634 N.W.2d

867, where the driver refused the requested blood test and

asked if he could take a breath test. The driver ultimately

submitted to a blood draw but argued later that the blood

draw was unreasonable and unconstitutional. The court of

appeals relied upon Bohling and Thorstad to reject the driver's

position. The court noted that Wodenjak's offer to take a

breath test distinguished his case factually from Bohling and

Thorstad but it concluded that the holdings in those cases still

apply when a defendant offers to take a different chemical

test. Id. at 561. We agree.

q 54. Wisconsin Stat. § 343.305(2) authorizes tests of "breath,

blood or urine, for the purpose of determining the presence or

quantity" of alcohol in a person who operates a motor vehicle

upon Wisconsin highways. Wisconsin statutes have

recognized chemical tests for intoxicants since at least the late

1940s. See Wis. Stat. § 85.13(2) (1949-50). Breath, blood,

and urine tests are reliable and admissible in evidence. See

Wis. Stat. § 885.235.

q 55. 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

Appendix A - 120

_ driving offense. In the absence of compelling evidence

otherwise, we must presume that the legislature had 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;[fn21] 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.

4 56. We note that in Wodenjak, 2001 WI App. 216, ¥ 2 n. 3,

and in this case, -officers testified that they could not

remember the two drivers asking for a different chemical test.

Courts in both cases accepted the drivers' statements of what

they requested. However, many defendants would likely

"remember" asking for a breath test after submitting to a

blood draw if the rule proposed by Krajewski were adopted

by this court.

4 57. Blood draws to test for alcohol concentration are so

commonplace, so accepted, so likely to be reasonable in their

execution that a person's mere preference for a different test

cannot be viewed as significant in a constitutional sense.

4 58. This is also part of the answer to Krajewski's third

objection, that he was entitled to take a "less intrusive" test

when he offered to do so.

Appendix A - 121

_ _—_

—

q 59. Krajewski points to Winston v. Lee, 470 U.S. 753, 759

(1985) for the proposition that a government search should

not be "more intrusive than reasonably necessary to

accomplish its goals." The proposed search in Winston

involved surgery under a general anesthetic to remove a bullet

lodged in a suspect's chest. The Supreme Court concluded

that the "magnitude" of the intrusion made this "search"

unreasonable even though it was likely to produce evidence

of a crime. Id.

q 60. We do not perceive the intrusion here and the intrusion

in Winston as comparable. The intrusion in the usual blood

draw is slight and does not constitute an unreasonable law

enforcement practice. It does not threaten the individual's

safety or health. Moreover, the Supreme Court has

"repeatedly refused to declare that only the ‘least intrusive’

search practicable can be reasonable under the Fourth

Amendment." Vernonia School Dist. 47J v. Acton, 515 US.

646, 663 (1995). See also U.S. v. Sharpe, 470 US. 675,

686-87 (1985); Illinois v. Lafayette, 462 U.S. 640, 647

(1983); Cady v. Dombrowski, 413 U.S. 433, 447 (1973).

q 61. Krajewski also objects that he is constitutionally entitled

to refuse medical treatment if he is willing to submit to a

breath test. He cites no authority to support this novel

proposition, which if accepted, would justify refusal to submit

to a blood draw both under the Fourth Amendment and the

implied consent statute. Considering the long history of

authorized blood tests in the United States, this objection is

meritless. We do not accept it.

Appendix A - 122

{| 62. To attack the blood test using the Bohling factors,

Krajewski has made several general objections that could

have been offered by any driver arrested for operating under

the influence. Acceptance of any one of these general

objections by this court would undercut the implied consent

statute and create chaotic consequences for enforcement of

the law. The objections are artful but they are not reasonable.

The surest way for a driver to avoid a blood draw for alcohol

concentration is never to drink and drive.

IV. CONCLUSION

4] 63. In summary, 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 driving while intoxicated or other similar

drunk-driving related offenses, so long as the test is

administered pursuant to the factors enumerated in Bohling.

Specifically, the blood draw must be taken "to obtain

evidence of intoxication from a person lawfully arrested for

a drunk-driving related violation or crime," there must be "a

clear indication that the blood draw will produce evidence of

intoxication," the blood sample must be taken by a reasonable

method and in a reasonable manner, and the arrestee must

present "no reasonable objection to the blood draw." Bohling,

173 Wis.2d at 534. We further hold that a person's agreement

to submit to a test of the person's choice does not negate the

exigency, nor render unconstitutional a nonconsensual test of

the officer's choice.

§ 64. We conclude from the facts presented that the

nonconsensual blood draw administered to Krajewski

complied with the standards established in Bohling, as it was

Appendix A - 123

taken to obtain evidence of intoxication after Krajewski was

arrested for driving while intoxicated, there was probable

cause to believe that the blood draw would produce evidence

of intoxication, the blood sample was taken in a reasonable

manner, and Krajewski presented no reasonable objection.

The blood draw was therefore reasonable and constitutional.

4 65. We therefore affirm the court of appeals decision which

summarily reversed the circuit court order granting

Krajewski's motion to suppress the results of the blood test

administered in this case. By the Court. — The decision of the

court of appeals is affirmed. [fnl] Trooper Torrez testified

that Krajewski later altered his story, saying that he had four

or five beers and that he had finished drinking two hours

before he was stopped. [fn2] Krajewski does not contest the

validity or the results of the field sobriety tests for the

purposes of this appeal. [fn3] All subsequent references to the

Wisconsin Statutes are to the 1997-98 version unless

otherwise specified. [fn4] Wisconsin Stat. § 885.235(1)(a)

provides that, "* 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."

[fn5] "[A]n alcohol concentration of 0.1 or more is prima

facie evidence that [a person] was under the influence of an

intoxicant." Wis. Stat. § 885.235(1g)(c). However, "[i]n cases

involving persons who have 2 or more prior convictions,

suspensions, or revocations . . . an alcohol concentration of

0.08 or more is prima facie evidence that [the person] was

under the influence of an intoxicant." Wis. Stat.

§885.235(1g)(cd). [fn6] Krajewski testified that upon learning

that he would be taken to a different facility for a blood draw,

he told Torrez: "Well, you had better call some friends

because I'm not going to give it willingly." [fn7] The parties

Appendix A - 124

stipulated, for the purposes of the preliminary hearing, that

the blood samples obtained by the registered nurse were

obtained according to normal procedures. [fn8] Krajewski

also brought a motion claiming that Wisconsin's implied

consent statute, Wis. Stat. § 343.305, is unconstitutional. The

circuit court denied the motion, and Krajewski does not

appeal the ruling. [fn9] 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. Rutzinski, 2001 WI 22, 4 13,

241 Wis.2d 729, 623 N.W.2d 516; State v. Richter, 2000 WI

58, | 27, 235 Wis.2d 524, 612 N.W.2d 29. [fn10] Wisconsin

Stat. § 343.305(2) provides in relevant part:

Any person who . . . operates a motor vehicle upon the public

highways of this state . . . is deemed to have given consent to

one or more tests of his or her breath, blood or urine, for the

purpose of determining the presence or quantity in his or her

blood or breath, of alcohol, controlled substances, controlled

substance analogs or other drugs, or any combination of

alcohol, controlled substances, controlled substance analogs

and other drugs, when requested to do so by a law

enforcement officer under sub. (3)(a) or (am) or when

required to do so under sub. (3)(b). [fn11] The length of the

revocation is dependent upon the number of prior

suspensions, revocations and convictions, as calculated under

Wis. Stat. § 343.307. Wis. Stat. § 343.305(10). [fn12] The

Fourth Amendment to the United States Constitution

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, and no Warrants shall issue,

Appendix A - 125

Pe ee ea en

but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized. Article I, Section 11 to the

Wisconsin Constitution provides: Searches and seizures.

SECTION 11. The right of the people to be secure in their

persons, houses, papers, and effects against unreasonable

searches and seizures shall not be violated; and no warrant

shall issue but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched and the persons or things to be seized. [fnl13] The

court cited a number of court decisions interpreting

Schmerber to support its conclusion: State v. Bentley, 92

Wis.2d 860, 861-62, 286 N.W.2d 153 (Ct.App. 1979); United

States v. Reid, 929 F.2d 990, 991-92 (4th Cir. 1991); State v.

Baker, 502 A.2d 489, 493 (Me. 1985); Gregg v. State, 374

So.2d 1301, 1302 (Miss. 1979); State v. Milligan, 748 P.2d

130, 134-35 (Or. 1988). State v. Bohling, 173 Wis.2d 529,

542-44, 494 N.W.2d 399 (1993). [fn14] Wisconsin Stat. §

885.235, Chemical tests for intoxication, provides in part:

(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 . . . evidence of the amount of alcohol in the person's

blood at the time in question, as shown by chemical analysis

of a sample of the person's blood or urine or evidence of the

amount of alcohol in the person's breath, is admissible on the

issue of whether he or she was 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 (emphasis added). [fn15]

The circuit court relied heavily on Nelson v. City of Irvine,

Appendix A - 126

143 F.3d 1196 (9th Cir. 1998), for the principle that exigent

circumstances are negated when a defendant offers to submit

to a test other than the test requested by law enforcement.

Nelson can be distinguished on its facts. We believe that, to

the extent its opinion went beyond the special facts of the

case, the Nelson court was not correct in its explanation of

exigency. Nelson involved a California implied consent

statute that granted persons arrested for driving while

intoxicated the choice of which type of sample they would

give — a breath, blood, or urine sample. See Cal. Veh. Code

§ 23157 (1997-98) (current version at Cal. Veh. Code §

23162 (2001-2002)); Nelson, 143 F.3d at 1201. The Ninth

Circuit determined that no exigent circumstances exist

justifying the nonconsensual taking of a blood sample from

a person who agrees to give a different sample of his or her

choice. It stated that: When an arrestee requests but is denied

the choice of an available breath or urine test, the exigency

used to justify the warrantless blood test continues only

because of the City's failure to perform the requested

alternative test. Whenever a DUI arrestee consents to a breath

or urine test, and such tests are available, the administration

of either the breath or urine test would preserve the evidence

and end the exigency. Nelson, 143 F.3d at 1205. Nelson is

distinguishable from this case because in Nelson, the drivers

did not withdraw their consent to give some sample under the

statute. They had a statutory right to provide a sample of their

choice. Because several of the drivers offered to provide

precisely what the statute required, in the manner the statute

required, no exigent circumstances existed to allow the

officers to require a different type of test. We believe the

decision assumes that the drivers will fully cooperate and take

the tests. Wisconsin's implied consent law does not grant

drivers a statutory right to choose which test will be

Appendix A - 127

administered. See State v. Wodenjak, 2001 WI App. 216, 4 13

n. 8, 247 Wis.2d 554, 634 N.W.2d 867. In Wisconsin, a driver

impliedly consents to take the test requested by a law

enforcement officer. When the driver refuses to take that test,

the driver has withdrawn his or her consent — officers must

yield to that decision or proceed in a lawful manner outside

the statute. [fn16] Wisconsin Admin. Code § TRANS 311.06

(1997), provides in relevant part: (3) Procedures for

quantitative breath alcohol analysis shall include the

following controls in conjunction with the testing of each

subject:

(a) Observation by a law enforcement person or combination

of law enforcement persons, of the test subject for a

minimum of 20 minutes prior to the collection of a breath

specimen, during which time the test subject did not ingest

alcohol, regurgitate, vomit or smoke. [fn17] See State v.

Sanders, No. 93-2284-CR, 93-2286-CR, unpublished slip op.

(Wis.Ct.App. Sept. 8, 1994). Unpublished opinions of the

court of appeals have no precedential value and may not be

cited as precedent or authority. Wis. Stat. (Rule) § 809.23(3).

This case is cited merely to illustrate a potential fact situation.

[fin18] In normal circumstances, the officer should pursue the

first option, requesting and urging a person's cooperation and

voluntary compliance under the implied consent statute,

before exploring the other options. The officer's incentives for

seeking compliance under the implied consent statute are

discussed in State v. Zielke, 137 Wis.2d 39, 48-50, 403

N.W.2d 427 (1987). [fn19] Obtaining a search warrant to

authorize a blood draw may present practical difficulties. The

principal difficulty is reaching a judge or court commissioner

after normal working hours. Many counties have only one

judge. Judges cannot always be found at their office or home.

Appendix A - 128

In addition, when a law enforcement officer seeks a warrant

by telephone under Wis. Stat. § 968.12(3)(d), either the judge

or the officer must be ai a location with equipment to record

the proceedings. This court recently reviewed a case in which

the authorities inadvertently failed to record a telephone

application for a warrant. State v. Raflik, 2001 WI 129, 248 -

Wis.2d 593, 636 N.W.2d 690.

In any event, there is no assurance that a drunk driver

presented with a search warrant will abandon his or her

resistance and politely submit to a blood test. As Krajewski

succinctly put it, he did not want to take a test for alcohol

concentration because if he did he would be"[expletive]."

[fn20] The same conclusion has been reached in other states.

See Stanger v. Department of Revenue, 780 P.2d 64, 65

(Colo.Ct.App. 1989); Glazner v. State, 318 S.E.2d 233

(Ga.Ct.App. 1984); Borgen v. Director of Revenue, 877

S.W.2d 172 (Mo.Ct.App. 1994); Ruch v. Conrad, 526

N.W.2d 653, 656 (Neb. 1995). Pennsylvania courts have

consistently rejected the fear-of-needles justification for

refusal. See Com. D.O.T. Bur. of Dr. Lic. v. Mease, 610 A.2d

76, 78 (Pa.Commw.Ct. 1991)(citing other Pennsylvania

cases). [fn21] The court of appeals recently considered a case

in which an officer took a driver to a hospital for a blood test

after the officer was informed that the county's intoxilizer

room was not operational. See State v. Salm, No.

01-2443-FT, unpublished slip op. (Wis.Ct.App. Mar. 13,

2002). Unpublished opinions of the court of appeals have no

precedential value and may not be cited as precedent or

authority. Wis. Stat. (Rule) § 809.23(3). This case is cited

merely to illustrate a potential fact situation.

q 66. ANN WALSH BRADLEY, J. (dissenting).

Appendix A - 129

The majority sets forth a blanket rule employing the exigent

circumstances exception allowing forced blood draws in OWI

cases. Such a blanket exception to the warrant requirement

runs afoul of the Fourth Amendment, and renders

meaningless the option of ever securing a search warrant foi

an OWI blood draw. In addition, I write separately to clarify

any implication in the majority opinion that exigent

circumstances might exist in cases where it is a controlled

substance, not alcohol, that allegedly forms the basis for an

arrest. Accordingly, I respectfully dissent.

q 67. In State v. Bohling, 173 Wis.2d 529, 539, 494 N.W.2d

399 (1993), this court determined in a 4-3 decision that

exigent circumstances in OWI cases are based "solely on the

fact that alcohol rapidly dissipates in the bloodstream." At the

same time, and somewhat inconsistently, the Bohling court

set forth four factors that must be satisfied for the police to

forego a warrant: (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. 173 Wis.2d at 533-34 (footnote omitted).

{ 68. The dissent in Bohling observed that "the majority

opinion holds that the exigency created by the dissipation of

alcohol makes seizure of a blood sample without a warrant

reasonable per se under the Fourth Amendment." 173 Wis.2d

at 548 (Abrahamson, J., dissenting). Although the dissent

acknowledged that the exigent circumstances exception may

be applied to the seizure of blood, it rejected the Bohling

Appendix A - 130

majority's blanket exception to the warrant requirement,

concluding that law enforcement officers and courts must

examine the facts on a case-by-case basis to satisfy the Fourth

Amendment. Id. at549-550.

4 69. After Bohling, this court devised another blanket

exception to the Fourth Amendment based on exigent

circumstances. In State v. Stevens, 181 Wis.2d 410, 425-26,

511 N.W.2d 591 (1994), the court held that based on the

destructibility of the evidence, a no-knock search is

reasonable any time the police have a warrant, supported by

probable cause, to search a residence for evidence of drug

dealing.

4 70. Subsequently, in Wilson v. Arkansas, 514 U.S. 927,

930 (1995), the U.S. Supreme Court concluded that the

common law knock and announce principles form a part of

the Fourth Amendment reasonableness inquiry. In reaching its

conclusion, the Court in Wilson peppered its decision with

language warning that blanket exceptions to the knock and

announce requirement were impermissible.

4 71. After Wilson, this court decided State v. Richards, 201

Wis.2d 845, 549 N.W.2d 218 (1996). The court in Richards

explained that it took the case to address the vitality of

Stevens in light of the Supreme Court's warning in Wilson.

Id. at 848. Nonetheless, this court did not heed the warning.

It reaffirmed the Stevens rule, holding that exigent

circumstances were always present in the execution of search

warrants involving felonious drug delivery, based in part on

the potential for the disposal of drugs prior to entry by the

police. Id. at847-48.

Appendix A - 131

§ 72. The U.S. Supreme Court promptly overturned us,

abrogating the blanket rule. See Richards v. Wisconsin, 520

U.S. 385 (1997). The Court concluded that a concurring

opinion in Richards, not the majority, had correctly stated the

law under the Fourth Amendment. Id. at 391, 395. The

concurring opinion repeated the concerns of the dissent in

Bohling, emphasizing that the Fourth Amendment requires an

assessment of reasonableness based on the facts of each

particular case. Richards, 201 Wis.2d at 878 (Abrahamson, 3...

concurring).

q 73. The Supreme Court's decision in Richards thus calls into

question the basis for Bohling. Richards, along with this

court's statement in Bohling that exigent circumstances in

OWI cases are based "solely on the fact that alcohol rapidly

dissipates in the bloodstream," Bohling, 173 Wis.2d at 539,

suggests that Bohling embodies an impermissible blanket

exception to the warrant requirement.

q 74. This blanket exception in Bohling may have been

blurred by the court's articulation of the four factors that must

be satisfied to justify a warrantless blood draw. At least some

of these factors suggested that the determination of whether

a given warrantless search was reasonable remained

case-by-case based on individualized circumstances.

q 75. Today's majority opinion brings Bohling into focus. In

practice, application of the four factors rarely, if ever, results

in an individualized determination of reasonableness, and the

exigent circumstances exception for blood draws in OWI

cases embodies the type of blanket rule forbidden under

Richards.

Appendix A - 132

{| 76. The first and second of the four Bohling factors amount

to no more than probable cause to arrest for drunk driving.

However, probable cause is already a requirement under the

exigent circumstances exception to the warrant requirement.

See State v. Hughes, 2000 WI 24, 4 17, 233 Wis.2d 280, 607

N.W.2d 621.

{| 77. The third factor has been held to be satisfied by any

taking of blood in a “medical setting" or "medical

environment." State v. Wodenjak, 2001 WI App. 216, § 12,

247 Wis.2d 554, 634 N.W.2d 867, review denied, 2001 WI

117, 247 Wis.2d 1036, 635 N.W.2d 784 (unpublished table

decision); State v. Thorstad, 2000 WI App. 199, ¥ 15, 238

Wis.2d 666, 618 N.W.2d 240, review denied, 2000 WI 121,

239 Wis.2d 310, 619 N.W.2d 93 (unpublished table decision).

In reality then, the blood draw will satisfy this factor in

virtually all cases.

4 78. Thus, the fourth factor is the only one that might seem

to suggest that warrantless blood draws in OWI cases would

remain subject to a case-by-case, particularized

reasonableness determination as required by the Fourth

Amendment. However, the majority has eviscerated that

factor today.

{ 79. The majority adopts the statutory standard for refusal

under the implied consent statute as the constitutional

standard for a reasonable objection. Majority op. at JJ 51-52.

Under this standard, the only reasonable objection is a

physical inability to submit to the test. This standard leaves

no room for, among other things, a legitimate objection based

on religious grounds. Thus, only in the most rare of cases will

the fourth factor ever preclude a warrantless blood draw.

Appendix A - 133

4 80. Any veil of uncertainty created by disparate language

within Bohling is lifted by the majority opinion. Under the

majority's opinion, if not also before it, the exigent

circumstances exception for blood draws in OWI cases is a

blanket rule that runs afoul of Richards.

4 81. Moreover, the majority's blanket rule runs afoul of its

own framework. The majority opinion states that a law

enforcement officer who arrests a person for operating under

the influence has "three options for obtaining a blood

sample," one of which is that the officer "may seek a search

warrant to secure a blood draw." Majority op. at § 42.

However, because an officer may now obtain a forced blood

draw without a warrant in virtually every case where the

suspect refuses the test, the availability of this third "option"

is rendered meaningless.

q{ 82. Finally, I note that the majority opinion discusses

obtaining a blood draw to test for controlled substances. The

majority states: "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." Majority op. at | 40.4 83.

The majority's discussion referencing testing for controlled

substances needs clarification to the extent it might be

interpreted as an endorsement of any future application of the

exigent circumstances exception to testing for controlled

substances.

{ 83. First, to the extent the majority's discussion of

controlled substances makes such a suggestion, it is dicta. The

case before us did not involve any alleged controlled

substance use.

Appendix A - 134

4] 84. Second, and more importantly, any suggestion that the

exigent circumstances exception should apply to testing for

controlled substances is inapposite to the emergency nature of

the exception. Citing Schmerber v. California, 384 U.S. 757,

770-71 (1966), the majority emphasizes that the "dissipation

of alcohol in the blood stream constituted an emergency

because it threatened the destruction of evidence." Majority

op. at J 27 (internal quotations omitted).

4 85. The same purported threat of rapid destruction of

evidence may not be present when considering controlled

substances. Indeed, evidence of controlled substance use

generally dissipates much more slowly from the body than

evidence of alcohol use. See State v. Jones, 895 P.2d 643, 644

(Nev. 1995); Emily J. Sovell, State v. Hanson: Has the

Exigent Circumstances Exception to the Warrant

Requirement Swallowed the Rule?, 45 S.D. L. Rev. 163, 185

(2000).

4 86. In sum, the majority opinion sets forth a blanket rule

under the exigent circumstances exception allowing

warrantless blood draws in OWI cases. Because the Fourth

Amendment does not countenance such a blanket rule, I

respectfully dissent.

q 87. I am authorized to state that SHIRLEY S.

ABRAHAMSON, CHIEF JUSTICE, joins this dissent.

Appendix A - 135

DISTRICT IV

Office of the Clerk

COURT OF APPEALS

110 E. Main Street, Suite 215

P.O. Box 1688

Madison, Wisconsin 53701-1688

Cornelia G. Clark

Clerk December 5, 2000

To:

Hon. Jacqueline R. Erwin Christopher Mutschler

Trial Court Judge Anderegg & Mutschler, LLP

Jefferson Co. Courthouse 19 East Ist Street

320 S. Main Street Fond du Lac, WI 54935

Jefferson, WI 53549

Kenneth Schopen, Tr. Clerk Jennifer E. Nashold

Jefferson Co. Courthouse — Asst. Attorney General

320 S. Main Street P.O. Box 7857

Jefferson, WI 53549 Madison, WI 53707-7857

Michael G. Schaefer

Assistant District Attorney

320 South Main Street

Jefferson, WI 53549

You are hereby notified that the Court has entered the

following opinion and order:

99-3165-CR State of Wisconsin v. Jay D. Krajewski

(L.C. # 99-CF-158)

) Appendix B - 101

Before Vergeront, Roggensack and Deininger, JJ.

The State of Wisconsin appeals an order suppressing

a blood test. Based upon our review of the briefs and record,

we conclude at conference that this case is appropriate for

summary disposition. WIS. STAT. RULE 809.21 (1997-98).

We reverse.

Defendant Jay Krajewski moved to suppress a blood

test. The circuit court found that Krajewski first offered to

take a breath test and expressed a fear of needles. A blood

test was nevertheless taken, pursuant to the officer’s policy

and stated intent to take it by force if necessary. The circuit

court suppressed the blood test. The court relied on Nelson

v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), to conclude

that where an equally valid test is available with the

defendant’s consent, the exigent circumstance exception to

the requirement for a search warrant is unavailable.

Since the circuit court’s ruling, we held that Nelson is

not binding in Wisconsin. State v. Thorstad, 2000 WI App.

199, 99,___— Wis. 2d __, 618 N.W.2d 240, review denied,

2000 WI 121 (Wis. Oct. 17, 2000). We further held that, to

the extent Nelson is in conflict with the exigent circumstance

analysis of State v. Bohling, 173 Wis. 2d 529, 492 N.W.2d

399 (1993), or an earlier United States Supreme Court

opinion, it is not for this court to resolve that conflict. Id.

We held that if the requirements of Bohling are met, our

inquiry need go no further. Jd. at 411.

The Thorstad opinion resolves most of the issues

argued in this appeal. The remaining question is whether the

requirements of Bohling were met. It appears that only one

Appendix B - 102

of those requirements may be in dispute: whether the arrestee

presented a reasonable objection to the blood draw. Id. at 47.

In Thorstad we declined to “delineate what sorts of objections

might be considered reasonable” because Thorstad did not

present any objections at all, and did not give any indication

that he would prefer another test. Jd. at 416. In the present

case, however, Krajewski expressed a preference for a breath

test and expressed a fear of needles. The State argues on

appeal that this was not a reasonable objection. In response,

Krajewski argues in support of the circuit court’s finding that

he expressed such a fear, but he does not argue in any way

that this expression should be considered a reasonable

objection under Bohling. We take this silence as a

concession. See Charlais Breeding Ranches, Ltd. v. FPC

Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.

1979). Accordingly, we conclude that the requirements of

Bohling were met and the warrantless blood test was lawful.

ITIS ORDERED that the order appealed is summarily

reversed, and the cause is remanded, under WIS. STAT.

RULE 809.21.

Cornelia G. Clark

Clerk of Court of Appeals

Appendix B - 103

STATE OF WIS. CIRCUITCOURT JEFFERSON CO. .

STATE OF WISCONSIN,

Plaintiff,

-VS- DECISION

Case No. 99 CF 158

JAY D. KRAJEWSKI,

Defendant.

A. Defendant’s Motion to Suppress Chemical Test

Evidence on Due Process Grounds.

The officer who arrested Jay D. Krajewski complied

with sec. 343.305(4), Wis. Stats., by advising Mr. Krajewski

“if any test shows more alcohol in your system than the law

permits while driving, your operating privileges will be

suspended. If you refuse to take any tests that the agency

requests, your operating privilege will be revoked and you

will be subject to other penalties.” Mr. Krajewski

subsequently refused to take the chemical test. Blood was

drawn nontheless and the State has charged him with

operating while intoxicated and with prohibited alcohol

concentration, as fifth or subsequent offenses, subjecting him

to felony penalties.

The defendant asserts his constitutional right to due

process has been violated since the information provided to

him, as cited above, overstates penalties for refusing the

chemical test and understates penalties which may follow

submission to a chemical test. The State responds that the

Appendix C - Page 101

information goes only to consequences under sec. 343.305(4),

Wis. Stats., and is, therefore, accurate. The court denies

defendant’s motion to suppress.

Statutes are presumed constitutional. Challengers bear

the burden of proof beyond a reasonable doubt to show

otherewise. State ex rel. Vanderbloemen v. Town of West

Bend, 188 Wis. 2d 458, 464, 525 N.W2d 133 (Ct. App. 1994).

Defendant has not met this burden.

An ordinary language reading of sec. 343.305(4), Wis.

Stats., is as argued by the State, that is, simply reflective of

343.305 consequences to submitting to or refusing the

requested test. Within the framework of 343.305, a

prohibited alcohol concentration result test results in

suspension of operating privilege. Refusal to submit results

in revocation or operating privilege, along with other

consequences within 343.305 (submission to assessment,

compliance with a driver’s safety plan, vehicle

immobilization, ignition interlock device or vehicle seizure

and forfeiture pursuant to 343.305(10) and (10m), Wis.

Stats.). The warning advises that the fact of refusal may be

used against the driver. With this warning mandated by the

Legislature, drivers receive a straight forward, streamlined,

self-contained and accurate statement of consequences to their

decisions within the implied consent law. The due process

clauses require no more.

Defendant argues that more is required of the State by

way of warnings, that the “other penalties” language subtly

misleads a driver into submitting to a test, the consequences

of which are “grossly” understated. Specifically, Defendant

argues that drivers should be warned that test results may be

used in prosecution for criminal offenses and that other

Appendix C - Page 102

sanctions as enumerated above must be articulated. The

courts have previously advised that consequences such as

habitual traffic offender exposure and increased insurance

rates are not the kind of warnings that must be provided by

the Court to offenders, an analogy available here. the

Legislature has reasonably determined to require warnings

within the implied consent law and not beyond.

The Court agrees with the rationale of the unpublished

decision State v. Smith, (No. 99-0760), Judge Nettesheim

writing:

... Acomplete list of the penalties for refusal is

contained within § 343.305(10), Stats. However,

§ 343.305(4) does not mandate warning an OWI

suspect about these penalties.

.. . To require that the suspect be advised of all

the enhanced penalties which might flow from a

refusal or from a test which produces a prohibited

alcohol concentration result would only serve to

make the process of informing the accused too

convoluted to be helpful. Furthermore, “an

officer’s only duty under the implied consent law

is to accurately deliver the information [from §

343.305(4)] to the driver; an officer need not

explain all of the choices (and resulting

consequences) embodied within these statutes”

Quelle, 198 Wis. 2d at 285, 542 N.W.2d at 202.

Put another way, the accused is entitled to limited

and basic information under the implied consent

law, not a full explanation or thorough legal

advice.

Appendix C - Page 103

B. Defendant’s Motion to Dismiss Count 2.

Because sec. 885.235 presumes that an alcohol

concentration of 0.08 or 0.1 or more is prima facie evidence

that a driver was “under the influence of an intoxicant”,

Defendant argues that prosecution of him under sec.

346.63(1)(b), Wis. Stat., is violative of the due process clause.

Specifically, Defendant argues double jeopardy, issue

preclusion and fundamental fairness. The State argues that

sec. 885.235 is permissive only, that the rationale of State v.

Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983)

militates denial of the motion, that only one punishment is

available and it is in a single prosecution, thereby rendering

an issue preclusion analysis inapplicable. The Court denies

the motion to dismiss count 2.

On this constitutional challenge, the defendant bears

the burden as cited above and has not met that burden. The

strongest argument in support of the constitutionality of this

legislation is the permissive nature of the statute and

instruction based thereon. The truism cited in Bohacheff at

page 415 is in accord: “. . . There may be situations where a

person with less than .10% blood alcohol concentration is

‘under the influence’ and a person with .10% or more blood

alcohol concentration is not.” That the trier of fact may find

from evidence ofa prohibited alcohol concentration test result

a driver under the influence does not render a prohibited

alcohol concentration charge the same in fact and law as a

charge of driving while under the influence of an intoxicant.

Defendant urges an issue preclusion analysis. Both

parties cite the Court to Ashe v. Swenson, 397 U.S. 436, 90 S.

Ct. 1189, 25 L.Ed. 2d 469 (1970). Plaintiff correctly points

out that the definition given issue preclusion (then termed

Appendix C - Page 104

collateral estoppel) applies “ . . . when an issue of ultimate

fact has once been determined by a valid and final judgment,

that issue cannot again be litigated between the same parties

in any future lawsuit.” (L. Ed. pg. 475). The case at bar is

not subsequent prosecution and Defendant’s argument that

this is a mere technical variation is not convincing in view of

the dearth of supporting authority.

Finally, Defendant argues that although issue

preclusion may not be applicable, the due process concept of

fundamental fairness is and requires dismissal. Defendant

argues that this is the issue left unaddressed by the Court in

Bohacheff. However, Defendant does not articulate separate

arguments from those addressed above and the Court,

therefore, makes no different findings than those made above.

C. —_ Motion to Suppress on Coerced Blood Withdrawal

Defendant moves the Court to suppress the blood test

result from a test taken contrary to his affirmative consent.

Mr. Krajewski argues that he submitted to the test under

protest because officers told him the blood would be

withdrawn with or without his cooperation. Further, Mr.

Krajewski testified and argues that because he offered to

submit to a different type of test, the officer’s verbal coercion

violated is right against unreasonable seizure. The State

responds that no such alternate test offer was made by the

defendant and that the warrantless seizure was

constitutionally permissible under the exigent circumstance

exception. The State bears the burden on this issue and has

not met it. The Court, therefore, grants the defendant’s

motion to suppress the results of his blood test.

Appendix C - Page 105

Extensive testimony was taken regarding events

surrounding the defendant’s arrest and ensuing chemical test.

Defendant testified unequivocally that he requested a breath

test instead of a blood test due to his fear of needles. (7/27/99

tr. pp. 6, 11.) The arresting officer was equivocal on this

issue (5/20/00 tr. p. 53; 8/9/99 tr. p. 22). A second officer

present during some of the events could not specifically recall

if the defendant made such a request. (/d. p. 69.) The Court

finds the defendant asked to take a breath test based on fear of

needles. A blood test was, nontheless, taken pursuant to the

officer’s policy and stated intent to take it by force if

necessary.

The rationale of the Ninth Circuit Court of Appeals in

Nelson v. City of Irvine, 143 F.3d 1196 (1998) is persuasive.

The State’s attempt to distinguish the case on the basis of

state law choice among chemical tests is not.

Consent, whether implied or express, is an exception

to the rule against warrantless seizures. This defendant

impliedly consented to the chemical testing of his blood by

driving. He withdrew that consent and will suffer the

consequences of his refusal if it is proved. The State then

sought to employ another exception to the rule against

warrantless seizures: exigency. The seizure was outside the

provisions of § 343.305, Wis. Stats. Therefore, the State’s

argument that the law enforcement officer’s statutory test

option applies is inaccurate.

The State also argues that a blood test is more timely

available and, therefore, more appropriate under exigent

circumstances (Brief, p. 11). However, had the defendant’s

request for a different test been honored when made at

Countryside Home, the breath test would be at least as timely

Appendix C - Page 106

as the blood test at Fort Atkinson Memorial Hospital.

Further, there is no evidentiary support of the State’s position

that triers of fact accept blood test results more readily than

breath or urine analyses.

The Nelson court impliedly ruled in accord with the

Wisconsin Supreme Court in State v. Bohling, 173 Wis. 2d

529, 494 N.W.2d 399 (1993), holding that forcible blood

draws were available under the exigent circumstance

exception to the Fourth Amendment. However, the Nelson

court held that where, as here, an equally valid test is

available with the defendant’s consent, the exigent

circumstance exception became unavailable. Schmerber v.

California, 384 U.S. 757, 86 s. Ct. 1826, 16 L.Ed. 2d 908

(1966), requires that the seizure be by a reasonable method.

When consent to a less intrusive seizure meets a coerced or -

forcible seizure, the latter method is unreasonable.

The attorneys advised this Court during argument that

appeals would be forthcoming regardless of the nature of the

decisions on these motions. A scheduling conference will be

heard Friday, November 5, 1999, at 1:00 p.m., before the

Hon. J.R. Erwin, Circuit Court Br. 3, 320 S. Main Street, Rm.

130, Jefferson County, Wisconsin, to determine whether or

not this matter should be scheduled for trial at this time.

Dated this 26th day of October, 1999.

BY THE COURT:

/S/

J.R. Erwin

Circuit Court Branch 3

Appendix C - Page 107

CCIE mn ET TONER ee en IRE Rm. REI ee

JRE:slm

pe: Michael Schaefer

Christopher Mutschler

Jay Krajewski

Appendix C - Page 108

STATE OF WIS. CIRCUIT COURT JEFFERSON CO.

STATE OF WISCONSIN,

Plaintiff,

-VS- ORDER

Case No. 99 CF 158

JAY D. KRAJEWSKI,

Defendant

For the reasons stated in the written decision of the

Jefferson County Circuit Court, Branch 3, the Honorable J.R.

Erwin, presiding, filed with the Clerk of the Circuit Court for

Jefferson County on October 27, 1999 in the above captioned

case, the Court Orders that the defendant’s “Motion to

Suppress Evidence based upon Unconstitutionally Coerced

Blood Withdrawal” is granted and, therefore, the blood test

result obtained from the defendant in this case shall not be

admitted at trial.

Dated this 8th day of December, 1999, at Jefferson,

Wisconsin.

[S/

Honorable J.R. Erwin

Circuit Court, Branch 3

Appendix C - Page 109

Approved as to form only this

8th day of December, 1999.

/S/

Attorney Christopher A. Mutschler

Attorney for Defendant

Appendix C - Page 110

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