State v. Hay, Appeal No. 2018AP2240-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtGUNDRUM, J.
Citation2020 WI App 35,392 Wis.2d 845,946 N.W.2d 190
Parties STATE of Wisconsin, Plaintiff-Appellant, v. David M. HAY, Defendant-Respondent.
Decision Date27 May 2020
Docket NumberAppeal No. 2018AP2240-CR

392 Wis.2d 845
946 N.W.2d 190
2020 WI App 35

STATE of Wisconsin, Plaintiff-Appellant,
v.
David M. HAY, Defendant-Respondent.

Appeal No. 2018AP2240-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: November 26, 2019
Opinion Filed: May 27, 2020


On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael C. Sanders, assistant attorney general, and Joshua L. Kaul, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Mark R. Thompson, assistant state public defender of Madison.

Before Reilly, P.J., Gundrum and Davis, JJ.

GUNDRUM, J.

392 Wis.2d 848

¶1 The State appeals from an order granting David Hay's motion to suppress the results of a warrantless blood draw performed after Hay was arrested for fifth offense operating a motor vehicle while intoxicated (OWI) and from an order denying the State's motion for reconsideration. The State asserts the court erred in granting Hay's suppression motion because exigent circumstances justified drawing Hay's blood without a warrant. Because the State failed to meet its burden of demonstrating that the blood draw was lawfully conducted without a warrant, we conclude the court did not err.

Background

¶2 City of Brookfield Police Officer Kyle Stommes arrested Hay for OWI and directed that a sample of his blood be drawn, without a warrant, and tested. The test results showed a .00 blood alcohol concentration (BAC) but indicated Hay had cocaine in his system. Hay was charged with OWI in violation of WIS. STAT. § 346.63(1)(am) (2017-18),1 fifth offense, due to having "a detectable amount of a restricted controlled substance" in his blood while driving. Hay moved to suppress the test results on the basis that his Fourth Amendment rights were violated when his blood was drawn without a warrant. A hearing was held on Hay's

392 Wis.2d 849

motion, Stommes was the only witness to testify, and his relevant testimony is as follows.

¶3 At approximately 12:50 a.m. on July 6, 2017, Stommes conducted a traffic stop on Hay. Stommes learned Hay had been drinking, had four prior OWI-related convictions, and thus was subject to a .02 BAC limit, rather than the normal .08 limit. A backup officer arrived, and a preliminary breath test (PBT) indicated Hay had a .032 BAC. Hay was arrested at 1:09 a.m. and was then handcuffed, searched, and secured in the back of Stommes’ squad car. Stommes searched Hay's vehicle for OWI-related evidence while the backup officer "monitor[ed]" Hay.

¶4 Since Hay's vehicle was not on his own property, city policy required that it be towed. Related to that, the officers "wait[ed]" for a third officer to arrive to "sit" with the vehicle until the tow truck arrived. After the third officer arrived, Stommes transported Hay "ten, 15 minutes" to Elmbrook Memorial Hospital for a blood draw while the backup officer followed in his police vehicle. Entering the hospital, Stommes notified hospital staff that they were near the emergency room and needed a phlebotomist to perform a blood draw. Stommes prepared and issued citations to Hay and, at approximately 1:45

946 N.W.2d 193

a.m., read him the Informing the Accused form. Hay indicated he wanted to speak with an attorney, and Stommes informed him that would not be allowed at that time. Hay then refused to submit to a blood draw.

¶5 Following Hay's refusal, Stommes contacted the on-call assistant district attorney (ADA). At approximately 1:50 a.m., Stommes advised the ADA that he believed "it was [an] exigency in this matter due to the loss of evidence and the subject's blood at which point she agreed with me due to the .02 restriction and

392 Wis.2d 850

him blowing ... a .032 and the time that had already elapsed that we should go with a warrantless blood draw." The hospital staff informed the officer that a phlebotomist would be coming to draw the blood, but due to hospital delays, likely related to there being only "one phlebotomist at that time of night for the entire hospital," Hay's blood was not drawn until 2:25 a.m. At no point was any attempt made to secure a search warrant for the blood draw.

¶6 Stommes indicated that "[f]rom traffic stop to that phone call" to the ADA, he was "doing official police work" and was not "just waiting around to burn the clock." He testified that "normally" he would have prepared an affidavit for a warrant before contacting an on-call ADA, but he did not do so in this case because he believed exigent circumstances existed. He indicated he was aware, based upon his training, that once an individual stops consuming alcohol, the alcohol in his or her system can dissipate "anywhere from .015 to a .02 per hour."

¶7 In response to questions from the circuit court, Stommes testified that this was the first time he had ever done a warrantless blood draw. He had previously sought three or four blood-draw warrants and it had taken "[a]n hour, hour and a half" "from the time [he] filled out the affidavit and warrant to the time [he] received the signed warrant back from the judge." The court also asked Stommes why he searched Hay's vehicle instead of using that time to complete arrest-related paperwork and letting the backup officer search the vehicle. The court added: "You know you're in a rush." Stommes responded: "It's been our practice that ... the individual that's arresting the subject ... do a quick search of the vehicle." He indicated

392 Wis.2d 851

he was "looking for alcohol related items ... and making sure there was nothing ... Hay needed from his vehicle."

¶8 The circuit court granted Hay's suppression motion, concluding that exigent circumstances did not exist to justify the drawing of Hay's blood without a warrant. The court observed that "this case is marked by the lack of complication and absence of chaos" that underpin various Wisconsin cases finding exigent circumstances and was, "like McNeely ,"2 "a run-of-the-mill OWI investigation." The court added that here:

There was no accident. There was no injury. There was no medical emergency. There was no crime scene investigation. There was no delay in the officer finding probable cause to arrest.... Unlike all of the other cases cited by the parties, aside from the dissipation of alcohol, there are no ‘special facts’ that support exigency here.

The State moved for reconsideration, which motion the circuit court denied. The State appeals.

Discussion

¶9 The State argues that the circuit court erred in granting Hay's suppression

946 N.W.2d 194

motion because "[e]xigent circumstances justified drawing Hay's blood without a warrant." Where, as here, the facts are not in dispute, we independently apply the relevant constitutional principles to those facts. State v. Delap , 2018 WI 64, ¶28, 382 Wis. 2d 92, 913 N.W.2d 175.

¶10 "A blood draw is a search of the person," and performing such a search without a warrant is

392 Wis.2d 852

"presumptively unreasonable" under the Fourth Amendment. State v. Brar , 2017 WI 73, ¶16, 376 Wis. 2d 685, 898 N.W.2d 499 (citation omitted); State v. Howes , 2017 WI 18, ¶20, 373 Wis. 2d 468, 893 N.W.2d 812. There are, however, several recognized exceptions to the warrant requirement. State v. Ziedonis , 2005 WI App 249, ¶13, 287 Wis. 2d 831, 707 N.W.2d 565. The exception at issue in this case—exigent circumstances—applies when, based upon the totality of the circumstances, "the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." See Missouri v. McNeely , 569 U.S. 141, 148-49, 156, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (citation omitted); Howes , 373 Wis. 2d 468, ¶¶23, 29, 893 N.W.2d 812. Exigent circumstances exist when "the need for a search is urgent and there is insufficient time to obtain a warrant." State v. Dalton , 2018 WI 85, ¶39, 383 Wis. 2d 147, 914 N.W.2d 120.

¶11 "In an OWI case, the natural dissipation of alcohol in the bloodstream may present a risk that evidence will be destroyed and may therefore support a finding of exigency in a specific case." Dalton , 383 Wis. 2d 147, ¶40, 914 N.W.2d 120. Exigent circumstances justifying a warrantless blood draw also "may arise in the regular course of law enforcement due to delays from the warrant application process." Id. (citation omitted). The State, however, bears the "heavy burden" of proving by clear and convincing evidence that the exigent-circumstances exception applies. Welsh v. Wisconsin , 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) ("[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests."); State v. Kennedy , 2014 WI 132, ¶34, 359 Wis. 2d 454, 856 N.W.2d 834 ("[I]t is the State that

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7 practice notes
  • United States v. Manubolu, 20-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 14, 2021
    ...See id. at 2537 ; McNeely, 569 U.S. at 152, 133 S.Ct. 1552 (citing Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826 ); cf. State v. Hay, 392 Wis.2d 845, 946 N.W.2d 190, 197-98 (Wis. Ct. App. 2020) (refusing to find exigent circumstances when the two on-scene officers could have begun the warran......
  • State v. Bourgeois, Appeal No. 2020AP1808-CR
    • United States
    • Court of Appeals of Wisconsin
    • March 23, 2022
    ...evidence that exigent circumstances justified [an] officer's lack of effort to secure a warrant." State v. Hay , 2020 WI App 35, ¶22, 392 Wis. 2d 845, 946 N.W.2d 190. "When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some rea......
  • State v. Richards, Appeal No. 2017AP43-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 16, 2020
    ...considered governing principles regarding blood draws and exigent circumstances in the OWI context in State v. Hay , 2020 WI App 35, 392 Wis.2d 845, 946 N.W.2d 190, and we now quote pertinent portions of that opinion:"A blood draw is a search of the person," and performing such a search wit......
  • State v. Bourgeois, 2020AP1808-CR
    • United States
    • Court of Appeals of Wisconsin
    • March 23, 2022
    ...evidence that exigent circumstances justified [an] officer's lack of effort to secure a warrant." State v. Hay, 2020 WI.App. 35, ¶22, 392 Wis.2d 845, 946 N.W.2d 190. "When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real......
  • Request a trial to view additional results
7 cases
  • United States v. Manubolu, 20-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 14, 2021
    ...See id. at 2537 ; McNeely, 569 U.S. at 152, 133 S.Ct. 1552 (citing Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826 ); cf. State v. Hay, 392 Wis.2d 845, 946 N.W.2d 190, 197-98 (Wis. Ct. App. 2020) (refusing to find exigent circumstances when the two on-scene officers could have begun the warran......
  • State v. Bourgeois, Appeal No. 2020AP1808-CR
    • United States
    • Court of Appeals of Wisconsin
    • March 23, 2022
    ...evidence that exigent circumstances justified [an] officer's lack of effort to secure a warrant." State v. Hay , 2020 WI App 35, ¶22, 392 Wis. 2d 845, 946 N.W.2d 190. "When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some rea......
  • State v. Richards, Appeal No. 2017AP43-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 16, 2020
    ...considered governing principles regarding blood draws and exigent circumstances in the OWI context in State v. Hay , 2020 WI App 35, 392 Wis.2d 845, 946 N.W.2d 190, and we now quote pertinent portions of that opinion:"A blood draw is a search of the person," and performing such a search wit......
  • State v. Bourgeois, 2020AP1808-CR
    • United States
    • Court of Appeals of Wisconsin
    • March 23, 2022
    ...evidence that exigent circumstances justified [an] officer's lack of effort to secure a warrant." State v. Hay, 2020 WI.App. 35, ¶22, 392 Wis.2d 845, 946 N.W.2d 190. "When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real......
  • Request a trial to view additional results

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