State v. Faust, 03-0952-CR.

CourtUnited States State Supreme Court of Wisconsin
Citation2004 WI 99,682 N.W.2d 371,274 Wis.2d 183
Docket NumberNo. 03-0952-CR.,03-0952-CR.
PartiesSTATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Jacob J. FAUST, Defendant-Respondent.
Decision Date02 July 2004

274 Wis.2d 183
2004 WI 99
682 N.W.2d 371

STATE of Wisconsin, Plaintiff-Appellant-Petitioner,
v.
Jacob J. FAUST, Defendant-Respondent

No. 03-0952-CR.

Supreme Court of Wisconsin.

Oral argument April 6, 2004.

Decided July 2, 2004.


274 Wis.2d 186
For the plaintiff-appellant-petitioner the cause was argued by Mary T. Wagner and Joseph DeCecco, with whom on the brief was Peggy A. Lautenschlager, Attorney General

For the defendant-respondent there was a brief by Stephen M. Seymour, Sheboygan, and oral argument by Stephen M. Seymour.

¶ 1. JON P. WILCOX, J.

The State appeals from a

274 Wis.2d 187
published court of appeals decision, State v. Faust, 2003 WI App 243, 267 Wis.2d 783, 672 N.W.2d 97, which affirmed an order of the Sheboygan County Circuit Court, Gary J. Langhoff, Judge, granting the defendant's motion to suppress the results of a forced blood draw taken from him that indicated he was operating a motor vehicle with a prohibited alcohol concentration

I. ISSUE

¶ 2. The issue presented is whether, under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution, exigent circumstances exist for a nonconsensual warrantless blood draw after the police have obtained what the arresting officer believes to be a voluntary, satisfactory, and useable chemical breath test indicating that the individual arrested was operating a motor vehicle with a prohibited level of alcohol concentration.1

¶ 3. For the reasons discussed below, we reaffirm that the rapid dissipation of alcohol in the bloodstream of an individual arrested for a drunk driving related offense constitutes an exigency that justifies the warrantless nonconsensual test of that individual's blood, so long as the test satisfies the four factors enumerated in State v. Bohling, 173 Wis.2d 529, 533-34, 494 N.W.2d 399 (1993). We hold that the presence of one presumptively valid chemical sample of the defendant's breath does not extinguish the exigent circumstances justifying a warrantless blood draw. The nature of the evidence sought — that is, the rapid dissipation of alcohol

274 Wis.2d 188
from the bloodstream — not the existence of other evidence, determines the exigency. Because exigent circumstances were present in this case and the blood test satisfied the test we set forth in Bohling, we reverse the decision of the court of appeals

II. FACTUAL BACKGROUND

¶ 4. The operative facts of this case are undisputed. On February 19, 2002, Officer James Olsen of the Sheboygan Police Department was on routine patrol and was inspecting the license plates of vehicles parked behind a local tavern. Upon checking the plates of a 1998 Chevrolet coupe, Officer Olsen discovered that the plates were registered to an Audi coupe. A short time thereafter, Officer Olsen observed the vehicle leave the parking lot. Officer Olsen initiated a routine traffic stop, and the driver of the vehicle, the defendant, identified himself as one Jacob J. Faust. Officer Olsen noticed a "strong odor of intoxicants" emanating from the vehicle and observed that Faust was slurring his speech and exhibited bloodshot, glassy eyes. Upon questioning, Faust indicated to Officer Olsen that he had consumed "five brandies" before driving.

¶ 5. Officer Olsen thereafter administered a field sobriety test that Faust failed to successfully complete. Faust then voluntarily submitted to a preliminary breath test under Wis. Stat. § 343.303 (2001-02),2 the result of which indicated Faust possessed an alcohol

274 Wis.2d 189
concentration of 0.13.3 Officer Olsen placed Faust under arrest and transported him to police headquarters. Upon arriving, Faust consented to provide a sample of his breath for chemical analysis. The results of the breathalyzer indicated that Faust possessed an alcohol concentration of 0.09 grams of alcohol per 210 liters of breath. Officer Olsen then performed a search of Faust's criminal driving record, the result of which indicated that Faust had two prior convictions for operating a motor vehicle while intoxicated. As an individual with two or more prior convictions for operating a motorized vehicle while intoxicated, Faust was subject to the prohibited alcohol concentration of 0.08. Wis. Stat. § 885.235(1g)(cd).

¶ 6. Officer Olsen then requested that Faust provide a blood sample. After Officer Olsen read Faust the Informing the Accused form,4 Faust refused to submit to the blood test without giving any reason. Officer Olsen then issued a Notice of Intent to Revoke Faust's license for refusing the blood test.5 Faust was transported to the hospital where, following routine procedures, a phlebotomist administered the blood test. The result from the blood test indicated that Faust possessed a blood alcohol concentration of 0.1 grams of alcohol per 100 milliliters of blood. Officer Olsen did not

274 Wis.2d 190
request a drug analysis of Faust's blood sample. It is undisputed that Officer Olsen at no time sought a warrant for the blood test.

III. PROCEDURAL POSTURE

¶ 7. On March 7, 2002, the State filed a criminal complaint against Faust, alleging violations of Wis. Stat. § 346.63(1)(a)(operating while intoxicated) and Wis. Stat. § 346.63(1)(b)(operating with a prohibited alcohol concentration). On October 15, 2002, Faust filed a motion to suppress the results of the blood test, arguing that the warrantless test was taken in violation of the United States and Wisconsin Constitutions because exigent circumstances did not exist due to the fact that the arresting officer already had obtained what he believed to be a voluntary and sufficient breath test that indicated Faust's level of intoxication was in excess of the legal limit. At the motion hearing, Officer Olsen indicated that while it was not department procedure to request a blood test in all drunken driving cases, he sought a blood test for the purpose of gathering additional evidence because the previous two tests were very near the legal limit. Officer Olsen also testified that at the time the breathalyzer was administered, he believed it to be a voluntary and satisfactory test. The circuit court granted Faust's motion to suppress on February 25, 2003, concluding that "exigent circumstances did not exist to justify the warrantless taking of the Defendants blood."

¶ 8. The court of appeals, based on our decision in State v. Krajewski, 2002 WI 97, 255 Wis.2d 98, 648 N.W.2d 385, affirmed the order of the circuit court. Faust, 267 Wis.2d 783, ¶ 1, 672 N.W.2d 97. In Krajewski, this court held:

274 Wis.2d 191
a warrantless nonconsensual blood draw from a person arrested on probable cause for a drunk driving offense is constitutional based on the exigent circumstances exception to the warrant requirement of the Fourth Amendment, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement, provided that the blood draw complies with the factors enumerated in Bohling.

Krajewski, 255 Wis.2d 98, ¶ 3, 648 N.W.2d 385. However, we also stated in Krajewski that "[t]he exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Id., ¶ 40, 648 N.W.2d 385. The court of appeals concluded that this sentence from Krajewski compelled the conclusion that "once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist." Faust, 267 Wis.2d 783, ¶ 1, 672 N.W.2d 97. In a concurring opinion, Judge Neal P. Nettesheim stated that although he felt bound by this sentence from Krajewski, the remainder of the analysis in Krajewski contradicted this isolated passage. Faust, 267 Wis.2d 783, ¶¶ 18-21, 672 N.W.2d 97 (Nettesheim, J. concurring).

IV. STANDARD OF REVIEW

¶ 9. There are no genuine issues of material fact for the purposes of this appeal. Whether a nonconsensual warrantless blood draw taken to obtain evidence of a driver's blood alcohol concentration following an arrest falls within the exigent circumstances exception to the warrant requirement of the state and federal constitutions is a question of law that this court reviews de novo. Krajewski, 255 Wis.2d 98, ¶ 17.

274 Wis.2d 192
V. ANALYSIS

A. Exigent Circumstances

¶ 10. We begin our analysis by reiterating some basic constitutional principles applicable to the case at bar. Both Article I, Section 11 of the Wisconsin Constitution and the Fourth Amendment of the United States Constitution guarantee citizens the right to be free from "`unreasonable searches.'" Bohling, 173 Wis.2d at 536, 494 N.W.2d 399.6 A "compelled intrusion[] into the body for blood to be analyzed for alcohol content" constitutes a search under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767-68 (1966).

¶ 11. Subject to a few well-delineated exceptions, warrantless searches are deemed per se unreasonable under the Fourth Amendment. Bohling, 173 Wis.2d at 536, 494 N.W.2d 399 (quoting State v. Murdock, 155 Wis.2d 217, 227, 455 N.W.2d 618 (1990)). It is clear that "[a] governmental search based on `exigent circumstances,' like a search incident to an arrest, is a well-established exception to the warrant requirement." Id. at 537, 494 N.W.2d 399. Exigent circumstances are present so as to justify a search in the absence of a warrant where there is a threat that "evidence will be lost or destroyed if time is taken to obtain a warrant." Id. at 537-38.

274 Wis.2d 193
¶ 12. The test for whether exigent circumstances are present is an objective one, id. at 538, 494 N.W.2d 399, and inquires into whether the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence[.]'" Schmerber, 384 U.S. at 770, 86 S.Ct. 1826 (quoting Preston v. United States, 376 U.S. 364, 367, 84...

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32 practice notes
  • State v. Carroll, 2007AP1378-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 3, 2010
    ...or lost in the time it would take for law enforcement agents to obtain a warrant, may justify a warrantless search. State v. Faust, 2004 WI 99, ¶ 11, 274 Wis.2d 183, 682 N.W.2d 371. Additionally, under the "plain view" doctrine, an object falling within the plain view of an officer who righ......
  • State v. Parisi, 2014AP1267–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 24, 2016
    ...evidence of a crime, a search under the Fourth Amendment has occurred. See Tullberg, 359 Wis.2d 421, ¶ 31, 857 N.W.2d 120 ; State v. Faust, 2004 WI 99, ¶ 10, 274 Wis.2d 183, 682 N.W.2d 371. "[W]arrantless searches are per se unreasonable unless they fall within a well-recognized exception t......
  • State v. Pinder, 2017AP208-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • November 16, 2018
    ...the Warrant complies with Fourth Amendment protections. ¶45 The "touchstone of the Fourth Amendment is reasonableness." State v. Faust, 2004 WI 99, ¶32, 274 Wis. 2d 183, 682 N.W.2d 371. The Fourth Amendment to the United States Constitution and 919 N.W.2d 585 Article I, Section 11 of the Wi......
  • State v. Pinkard, 2008AP1204-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...to a few well-delineated exceptions, warrantless searches are deemed per se unreasonable under the Fourth Amendment." State v. Faust, 2004 WI 99, ¶ 11, 274 Wis.2d 183, 682 N.W.2d 371;327 Wis.2d 355Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("It is a basic p......
  • Request a trial to view additional results
32 cases
  • State v. Carroll, 2007AP1378-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 3, 2010
    ...or lost in the time it would take for law enforcement agents to obtain a warrant, may justify a warrantless search. State v. Faust, 2004 WI 99, ¶ 11, 274 Wis.2d 183, 682 N.W.2d 371. Additionally, under the "plain view" doctrine, an object falling within the plain view of an officer who righ......
  • State v. Parisi, 2014AP1267–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 24, 2016
    ...evidence of a crime, a search under the Fourth Amendment has occurred. See Tullberg, 359 Wis.2d 421, ¶ 31, 857 N.W.2d 120 ; State v. Faust, 2004 WI 99, ¶ 10, 274 Wis.2d 183, 682 N.W.2d 371. "[W]arrantless searches are per se unreasonable unless they fall within a well-recognized exception t......
  • State v. Pinder, 2017AP208-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • November 16, 2018
    ...the Warrant complies with Fourth Amendment protections. ¶45 The "touchstone of the Fourth Amendment is reasonableness." State v. Faust, 2004 WI 99, ¶32, 274 Wis. 2d 183, 682 N.W.2d 371. The Fourth Amendment to the United States Constitution and 919 N.W.2d 585 Article I, Section 11 of the Wi......
  • State v. Pinkard, 2008AP1204-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...to a few well-delineated exceptions, warrantless searches are deemed per se unreasonable under the Fourth Amendment." State v. Faust, 2004 WI 99, ¶ 11, 274 Wis.2d 183, 682 N.W.2d 371;327 Wis.2d 355Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("It is a basic p......
  • Request a trial to view additional results

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