State v. Howes

• Decision Date: 01 March 2017
• Docket Number: No. 2014AP1870-CR,2014AP1870-CR
• Citation: 2017 WI 18,373 Wis.2d 468,893 N.W.2d 812
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. David W. HOWES, Defendant-Respondent.
• Court: Wisconsin Supreme Court

373 Wis.2d 468
893 N.W.2d 812
2017 WI 18

STATE of Wisconsin, Plaintiff-Appellant,
v.
David W. HOWES, Defendant-Respondent.

No. 2014AP1870-CR

Supreme Court of Wisconsin.

Oral Argument: October 20, 2016
Opinion Filed: March 1, 2017

For the plaintiff-appellant the cause was argued by Ryan J Walsh, chief deputy solicitor general, with whom on the brief was Misha Tseytlin, solicitor general, Brad D. Schimel, attorney general.

For the defendant-respondent, there was a brief by Mark A. Eisenberg, Jack S. Lindberg and Eisenberg Law Office, S.C., Madison, and oral argument by Mark A. Eisenberg.

PATIENCE DRAKE ROGGENSACK, C.J.

373 Wis.2d 478

¶1 This case comes before us by certification from the court of appeals. David Howes was charged with operating a vehicle while intoxicated (OWI) (fourth offense while having a prior OWI within five years) in violation of Wis. Stat. § 346.63(1)(a) (2013-14)¹ and operating a vehicle with a prohibited alcohol concentration (PAC) (fourth offense while having a prior PAC within five years) in violation

893 N.W.2d 817

of § 346.63(1)(b) based on analysis of his blood showing a blood alcohol concentration of 0.11 percent.

¶2 Howes moved to suppress the results of a warrantless blood draw, arguing that the deputy that arrested Howes lacked probable cause to do so and, additionally, that the deputy violated Howes' rights by obtaining a warrantless blood draw. The circuit court

373 Wis.2d 479

granted Howes' motion to suppress.² The circuit court concluded that the deputy had probable cause to arrest Howes. However, the court reasoned, relying heavily on State v. Padley , 2014 WI App 65, 354 Wis.2d 545, 849 N.W.2d 867, that the section of Wisconsin's implied consent statutes that permits a blood draw from an unconscious individual is unconstitutional, unless exigent circumstances exist. Because the circuit court concluded that none existed, it suppressed the report of Howes' blood alcohol concentration.³

¶3 We conclude that the circuit court correctly determined that the deputy had probable cause to arrest Howes for operating a vehicle with a PAC, and that Howes was arrested prior to obtaining a blood sample. Moreover, based on the totality of circumstances herein, the deputy's warrantless search was permissible under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution under the exigent circumstances doctrine that relates to the risk of destruction of evidence.⁴ Stated more fully, under the totality of circumstances presented herein, which included a seriously injured, unconscious person, who was being subjected to medical treatments for his injuries and who had 0.02 percent as his PAC threshold, a reasonable

373 Wis.2d 480

officer could have concluded that further delay in drawing Howes' blood would have led to the destruction of evidence through the dissipation and dilution of alcohol in Howes' bloodstream. Therefore, we reverse the order of the circuit court and remand for further proceedings.

I. BACKGROUND

¶4 At approximately 9:18 p.m. on July 7, 2013, Deputy Robert Schiro of the Dane County Sheriff's Office received a call from dispatch indicating that an individual had been in a motorcycle crash with a deer. Dispatch detailed that the driver was unconscious. Deputy Schiro arrived at the scene of the accident and found the deceased deer and the motorcycle in the middle of the road. The driver of the motorcycle was the defendant in the present case, David Howes. He was positioned approximately 40 feet away from the deer and was seriously injured and unconscious. When the deputy arrived, Emergency Medical Services (EMS) was already attending to Howes.

¶5 At the scene, there were several bystanders situated near EMS and the ambulance. The deputy unsuccessfully searched for a witness that had observed the accident. Though unsuccessful, the deputy testified that an individual approached him and, referring to Howes, stated he smelled an odor of intoxicants. As the lone police officer at the scene, the deputy had multiple responsibilities relating

893 N.W.2d 818

to containing the accident scene and was unable to obtain the individual's name.

¶6 While EMS continued to attend to Howes, the deputy had to ensure the safety of those traveling through the accident scene because a dead deer and a

373 Wis.2d 481

motorcycle were partially blocking the road. The deputy began to direct traffic lanes that ran through the scene of the accident. The deputy also ensured that no one moved the motorcycle and preserved other evidence relating to the accident. The deputy asked bystanders to move out of EMS's way. During his investigation, other officers arrived, and Howes, still unconscious, was transported to the hospital.

¶7 The deputy then left to go to the hospital to follow up with Howes. During the drive to the hospital, the deputy checked Howes' Department of Transportation records. He testified that his purpose was to confirm that the motorcycle driver was in fact Howes and to check Howes' driving record. As a result of this record check, the deputy discovered that Howes had three prior OWI/PAC convictions. These prior convictions signaled to the deputy that Howes had a PAC threshold more restrictive than the usual 0.08 percent. Specifically, Howes violated the law if he had operated the motorcycle with a blood alcohol concentration of as little as 0.02 percent.⁵

¶8 After the deputy arrived at the hospital, he immediately spoke with the two Emergency Medical Technicians (EMTs), who were in the ambulance with Howes as he was transported to the hospital. The deputy inquired about whether either of the EMTs had smelled alcohol on Howes' breath. The deputy testified that the EMT positioned in the ambulance near Howes' head smelled a "high odor of intox coming from" Howes. The EMT positioned in the ambulance at Howes' feet did not smell intoxicants.

¶9 The deputy proceeded to the emergency room in which medical staff was treating Howes. The

373 Wis.2d 482

deputy testified that "numerous nurses and medical staff [were] attending to [Howes] at the time." The ongoing medical treatment prevented the deputy from approaching Howes. However, one nurse told the deputy that there was a strong odor of intoxicants in Howes' room.

¶10 The deputy observed that Howes had not regained consciousness and that he was intubated to assist his breathing. The deputy spoke with a physician with regard to Howes' medical condition. The physician said that Howes was in critical condition and possibly had a brain injury. He said that Howes needed a CT scan to further evaluate his injuries.

¶11 At approximately 10:15 p.m., the deputy arrested Howes for operating a motor vehicle with a prohibited alcohol concentration. The deputy testified that he arrested Howes for the following reasons: (1) three different individuals smelled an odor of intoxicants emanating from Howes; (2) Howes had a prohibited alcohol concentration threshold of 0.02 percent due to his previous drunk-driving convictions; and (3) the crash.

¶12 After arresting Howes, and while Howes was still unconscious, the deputy read Howes the informing the accused form. The deputy asked Howes if he would submit to an evidentiary chemical test of his blood, and Howes did not respond.⁶ The deputy then instructed hospital staff to draw a blood sample to test for alcohol concentration.

893 N.W.2d 819

¶13 At 11:17 p.m., roughly two hours after the accident and an hour after the deputy asked hospital staff to draw Howes' blood, a phlebotomist completed

373 Wis.2d 483

the blood draw. The deputy testified that the hour delay occurred either because medical personnel at the hospital were too busy to draw the blood, or Howes may have had a CT scan during this interim period.⁷ The report of the blood test stated that Howes had a 0.11 percent blood alcohol concentration. This was well in excess of the 0.02 percent prohibited alcohol concentration threshold to which he was subjected due to his prior drunk-driving convictions.

¶14 Howes was charged with operating a vehicle while intoxicated (OWI) (fourth offense while having a prior OWI within five years) in violation of Wis. Stat. § 346.63(1)(a) and operating a vehicle with a prohibited alcohol concentration (PAC) (fourth offense while having a prior PAC within five years) in violation of § 346.63(1)(b). Howes moved to suppress the report that resulted from the blood draw. The circuit court granted Howes' motion. First, the circuit court concluded that the deputy had probable cause to arrest Howes. The court based its conclusion, in part, on the statements to the deputy by various individuals indicating that there was a smell of intoxicants coming from Howes. The court also concluded that "central to the probable cause determination [was] that this was a...