State v. Dieter
| Decision Date | 16 July 2020 |
| Docket Number | Appeal No. 2018AP2269-CR |
| Citation | 948 N.W.2d 431,393 Wis.2d 796,2020 WI App 49 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Yancy Kevin DIETER, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
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 Andrew R. Hinkel, assistant state public defender of Madison.
Before Blanchard, Graham, and Nashold, JJ.
¶1 Yancy Dieter faces criminal charges that include homicide by intoxicated use of a vehicle. The circuit court granted Dieter's motion to suppress evidence of his blood alcohol concentration, which was obtained through a warrantless blood draw, and the State appeals. Based on the totality of the circumstances, we conclude that exigent circumstances justified the warrantless blood draw, and accordingly we reverse the suppression order.
¶2 In the early morning hours of July 24, 2017, Dieter crashed his car in Monroe County. His leg was badly broken and his passenger was killed. The crash was not reported to law enforcement until several hours after it had occurred.
¶3 Sergeant Ryan Oswald from the Monroe County Sheriff's Department arrived at the scene of the crash at approximately 6:16 a.m. Oswald remained at the scene for approximately 27 minutes, and during that time, he did the following. He photographed the crash scene and determined the identity of the deceased passenger by reference to documents in his wallet. He spoke with the rescue technicians who were attending to Dieter's injuries, and he briefly spoke with Dieter, who said that he and his passenger had been driving home from a local tavern. He also interviewed two other witnesses who showed up at the scene. Based on information obtained in these interviews, Oswald concluded that the crash had occurred almost five hours earlier, at approximately 1:55 a.m.
¶4 Dieter was loaded into an ambulance and transported to a nearby hospital in Tomah, and Oswald followed, arriving at approximately 6:51 a.m. Oswald had learned from dispatch that Dieter had multiple prior OWI convictions, and that his license had been revoked. Shortly after Oswald arrived at the hospital, medical staff informed him that Dieter smelled strongly of intoxicants. Oswald also learned that an ambulance was on the way from Sparta and would arrive "soon" to take Dieter to a hospital 45 minutes away in La Crosse.
¶5 It is undisputed that by that time, Oswald had probable cause to believe that Dieter had been driving under the influence of alcohol, and that evidence of this crime would be found in Dieter's blood. Oswald went to his squad car to print out a citation and the "Informing the Accused" form.1 He then returned to Dieter's hospital room, read the form to him, and asked Dieter for consent to draw a sample of his blood to test it for alcohol and controlled substances. Dieter refused, and Oswald recorded the time of refusal as 7:07 a.m.
¶6 Oswald later testified that, based on his experience, it would take at least 40 minutes to obtain a warrant from a judge authorizing a blood draw.2 Additionally, based on his knowledge of the driving distance between Sparta and Tomah, he expected the ambulance to arrive for Dieter within the next 10 minutes. Oswald directed medical staff to draw a sample of Dieter's blood without a warrant, and the blood draw occurred between 7:20 and 7:25 a.m. Dieter was loaded into the ambulance shortly thereafter and driven to La Crosse. The test results later showed a blood alcohol concentration of .164, far above the legal limit.
¶7 The State charged Dieter with multiple counts, including homicide by intoxicated use of a vehicle, and Dieter moved to suppress the blood test evidence. The circuit court granted the motion, concluding that there were no exigent circumstances to justify a warrantless search. The State appeals.
¶8 An order granting or denying a suppression motion presents a question of constitutional fact, a mixed question of law and fact to which we apply a two-step standard of review. State v. Tomaszewski , 2010 WI App 51, ¶5, 324 Wis. 2d 433, 782 N.W.2d 725. "We review the circuit court's findings of historical fact under the clearly erroneous standard, and we review independently the application of those facts to constitutional principles." Id.
¶9 The Fourth Amendment protects against "unreasonable searches and seizures" by the government, and blood tests to determine alcohol concentration are "searches" for Fourth Amendment purposes. U.S. CONST. amend. IV ; Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 2173, 195 L.Ed.2d 560 (2016). Searches conducted without a warrant are unreasonable unless they fall within a recognized exception to the warrant requirement. Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). One exception is exigent circumstances, which exist when the exigencies of the situation "make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id. at 148-49, 133 S.Ct. 1552. Exigent circumstances are generally determined "case by case based on the totality of the circumstances." Id. at 145, 133 S.Ct. 1552 ; see also State v. Dalton , 2018 WI 85, ¶42, 383 Wis. 2d 147, 914 N.W.2d 120 (citing McNeely ); State v. Tullberg , 2014 WI 134, ¶42, 359 Wis. 2d 421, 857 N.W.2d 120 (citing McNeely ). It is the State's burden to prove the existence of exigent circumstances. See McNeely , 569 U.S. at 164, 133 S.Ct. 1552.
¶10 The parties disagree about whether there were exigent circumstances in this case. The State contends that there were. It argues that the unusually long interval between the crash and the initial police response, as well as Dieter's imminent transport to La Crosse for medical care, created a "now or never" situation for taking a sample of Dieter's blood.3 Dieter disagrees. Citing McNeely , 569 U.S. at 152, 133 S.Ct. 1552, he argues that waiting an additional 40 minutes or an hour to obtain a warrant would not have "significantly undermined the efficacy of the search." He also contends that Oswald should have started the application process at the crash scene, which would have provided him with enough time to obtain a warrant before Dieter was transported to La Crosse.
¶11 We begin by discussing recent cases that set forth a "totality of the circumstances" framework for evaluating exigencies caused by the dissipation of alcohol in the bloodstream. We then apply this framework and explain why we conclude that the State has met its burden to show exigent circumstances under these specific facts.
¶12 Alcohol dissipates as it is absorbed in the bloodstream and metabolized; therefore, the passage of time between alleged intoxicated driving and the collection of a blood sample affects the quantity of alcohol that testing will reveal. See, e.g. , McNeely , 569 U.S. at 152, 133 S.Ct. 1552. Wisconsin statutes recognize that the natural process of dissipation affects the evidentiary value of tests for blood alcohol concentration. Under WIS. STAT. § 885.235(3), if a blood sample is drawn three hours or later after an incident of alleged intoxicated driving, the test is admissible only if supported by expert testimony establishing its probative value. However, if the sample is drawn within three hours of the incident, it is admissible without expert testimony. See § 885.235(1g). For ease of reference throughout this opinion, we refer to this interval in § 885.235(1g) as the "three-hour window."
¶13 Because the natural dissipation of alcohol over time presents "a risk that evidence will be destroyed," the passage of time may help support an exigent circumstances determination in a given case. Dalton , 383 Wis. 2d 147, ¶40, 914 N.W.2d 120. Dissipation is important to an analysis of exigent circumstances, but it is not determinative, and it must be considered in context among all other relevant facts. McNeely , 569 U.S. at 165, 133 S.Ct. 1552. In McNeely , the United States Supreme Court rejected the rule that had been applied in some jurisdictions, including Wisconsin, that natural dissipation creates a per se exigency permitting a warrantless blood draw whenever law enforcement has probable cause to believe an individual has been driving while intoxicated. 569 U.S. at 151-52, 133 S.Ct. 1552. McNeely did not purport to analyze the significance of facts other than dissipation, but noted that " ‘special facts,’ such as the need for the police to attend to a car accident," might also contribute to exigent circumstances. Id. at 164, 133 S.Ct. 1552 (quoting Schmerber v. California , 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ). The test for exigency is satisfied when officers have probable cause to search and, based on the totality of the circumstances, they reasonably believe that obtaining a warrant for a blood test would "significantly undermin[e] the efficacy of the search." Id. at 152, 133 S.Ct. 1552.
¶14 Following McNeely , the Wisconsin Supreme Court had two occasions to consider whether a warrantless blood draw was justified under circumstances that, like here, involved an intoxicated driver who was conscious but severely injured after a car crash. Tullberg , 359 Wis. 2d 421, 857 N.W.2d 120 ; Dalton , 383 Wis. 2d 147, 914 N.W.2d 120. In both cases, the court considered the imminent closing of the three-hour window as part of its totality of the circumstances analysis. Tullberg , 359 Wis. 2d 421, ¶19 & n.7, ¶50 & n.26, 857 N.W.2d 120 ; Dalton , 383 Wis. 2d 147, ¶¶41, 52, 914 N.W.2d 120. Both cases also demonstrate how a combination of other events following a crash—such as police investigation at the scene, the medical needs of the persons involved in the crash, and the dissipation of...
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