State v. Bohling

• Decision Date: 04 November 1992
• Docket Number: No. 91-0811-CR,91-0811-CR
• Citation: 173 Wis.2d 529,494 N.W.2d 399
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. David J. BOHLING, Defendant-Respondent. . Oral Argument
• Court: Wisconsin Supreme Court

Page 399

494 N.W.2d 399

173 Wis.2d 529

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. David J. BOHLING, Defendant-Respondent.

No. 91-0811-CR.

Supreme Court of Wisconsin.

Oral Argument Nov. 4, 1992.

Decided Jan. 26, 1993.

For the plaintiff-appellant-petitioner the cause was argued by James M. Freimuth, Asst. Atty. Gen. with whom on the briefs was James E. Doyle, Atty. Gen.

For the defendant-respondent there was a brief and oral argument by Keith A. Findley, Asst. State Public Defender.

STEINMETZ, Justice.

The issue in this case is whether 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 Fourth Amendment to the United States Constitution and Article I Section 11 of the Wisconsin Constitution 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.

Because this issue comes before us on undisputed facts and addresses the law of exigent circumstances, our standard of review is de novo. State v. Drogsvold, 104 Wis.2d 247, 265, 311 N.W.2d 243 (Ct.App.1981).

Applying this standard, we hold that under the foregoing circumstances the dissipation of alcohol from a person's blood stream constitutes a sufficient exigency to justify a warrantless blood draw. Consequently, 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, ¹ (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.

Both the Dane County Circuit Court, the Honorable Daniel R. Moeser, and the court of appeals, 167 Wis.2d 487, 482 N.W.2d 669 (1992), concluded otherwise, holding that the state must demonstrate additional exigent circumstances to excuse the absence of a search warrant, and that the state failed to do so in the present case. The facts leading up to these holdings are detailed below.

On August 18, 1990, Sergeant ("Sgt.") Mindham of the city of Sun Prairie Police Department was dispatched to a motor vehicle accident between David J. Bohling's vehicle and another vehicle. Because Bohling smelled of liquor, had "bloodshot eyes," and had "poor" balance, Sgt. Mindham arrested him for operating a motor vehicle while under the influence of intoxicants and transported him to the Sun Prairie Police Department.

At the police station Bohling refused to take a breath intoxilyzer test. Sgt. Mindham then informed Bohling that blood would have to be drawn in accordance with the police department's policy of blood-testing third and subsequent drunk driving offenders who refuse to take the intoxilyzer test. When Bohling objected, the officer informed him that restraint would be used if necessary.

Without obtaining a search warrant, Sgt. Mindham transported Bohling to a Madison hospital. Bohling refused to sign a consent form but submitted to a blood test. ² It revealed a blood alcohol content ("BAC") of .205 percent.

Subsequently, Bohling was charged with operating a motor vehicle while intoxicated, contrary to sec. 346.63(1)(a), Stats., ³ and with operating a motor vehicle while having an illegal blood alcohol content in his body, contrary to sec. 346.63(1)(b). ⁴ If proven, these charges constitute Bohling's third drunk driving offense in a five-year period and therefore are misdemeanors subject to the penalties of sec. 346.65(2)(c). ⁵

By pretrial motion, Bohling sought to suppress the blood test results. His suppression motion was granted by the trial court. The court of appeals affirmed. This court accepted the state's petition for review. We reverse.

Our holding is based upon Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). To put our discussion of Schmerber in context, some background search and seizure law is explained below.

Both the Fourth Amendment to the United States Constitution and Article I Section 11 of the state constitution ⁶ guarantee citizens the right to be free from "unreasonable searches." "The United States Supreme Court has consistently held that warrantless searches are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions." State v. Murdock, 155 Wis.2d 217, 227, 455 N.W.2d 618 (1990). ⁷ A search performed incident to a lawful arrest is one of those exceptions. See Id. at 228, 455 N.W.2d 618; State v. Fry, 131 Wis.2d 153, 169-70, 388 N.W.2d 565, cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586 (1986). It generally does not require justification apart from probable cause to arrest. Id.

Pursuant to this rule, law enforcement officers have been permitted to seize samples of an arrestee's hair, breath, and urine solely on the basis of lawful arrest. See 2 W. LaFave, Search and Seizure, sec. 5.3(c) at 499 (2d ed. 1987) and cases therein.

Blood constitutes a limited exception to the foregoing rule. In Schmerber, 384 U.S. at 770-71, 86 S.Ct. at 1835-36, the United States Supreme Court held that the Fourth Amendment permits blood to be taken incident to a lawful arrest without a warrant and over the arrestee's objection only if three requirements are met: (1) the arresting officers have a "clear indication" that the evidence they seek will be found in the arrestee's blood; (2) exigent circumstances exist; and (3) the method used to take the blood sample is "a reasonable one" and "performed in a reasonable manner." ⁸

A governmental search based on "exigent circumstances," like a search incident to an arrest, is a well-established exception to the warrant requirement. See State v. Milashoski, 159 Wis.2d 99, 111, 464 N.W.2d 21 (Ct.App.1990), aff'd, 163 Wis.2d 72, 471 N.W.2d 42 (1991). A well-recognized exigent circumstance is the threat that evidence will be lost or destroyed if time is taken to obtain a warrant. State v. Peardot, 119 Wis.2d 400, 404, 351 N.W.2d 172 (Ct.App.1984).

The test for this particular exigency is an objective one: "Whether a police officer under ... circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would ... risk destruction of evidence...." State v. Smith, 131 Wis.2d 220, 230, 388 N.W.2d 601 (1986); see also State v. Amos, 153 Wis.2d 257, 270, 450 N.W.2d 503 (Ct.App.1989). The United States Supreme Court has indicated that this test applies in the present context of a warrantless blood draw following a lawful arrest for a drunk-driving-related crime. Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835.

As mentioned above, Schmerber is the starting point of our analysis. In Schmerber, the defendant was arrested for driving while intoxicated--a misdemeanor under California law. Id. at 758, 86 S.Ct. at 1829. He was taken to a hospital where the arresting officer directed a physician to take a blood sample over the defendant's objection. Id. at 758-59, 86 S.Ct. at 1829-30. The blood draw apparently was taken within two hours after the accident. Id. at 769, 86 S.Ct. at 1835. The BAC result based on the blood sample was admitted at the accused's trial over his objection on various grounds, including his claim of a Fourth Amendment violation. Id. at 759, 86 S.Ct. at 1829.

The Schmerber court determined that, in the absence of a warrant, one of the Fourth Amendment requirements for taking a blood sample is exigent circumstances. Id. at 770, 86 S.Ct. at 1835. The court concluded that exigent circumstances were present, and it stated the following:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence.' We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the accused's] arrest.

Id. at 770-71, 86 S.Ct. at 1835-36. (Citation omitted).

Schmerber can be read in either of two ways: (a) that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk driving related violation or crime--as opposed to taking a blood sample for other reasons, such as to determine blood type; or (b) that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw.

We believe that the more reasonable interpretation of Schmerber is the first one set forth--exigency based solely on the fact that alcohol rapidly dissipates in the bloodstream. This conclusion rests on four supports: (1) a logical reading of Schmerber, (2) the Supreme Court's decision in Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), (3) interpretations of Schmerber by other courts, and (4) an examination of Wisconsin's interest in enforcing its drunk driving laws.

A logical analysis of the Schmerber decisio...