State v. Krajewski

• Decision Date: 10 July 2002
• Docket Number: No. 99-3165-CR.,99-3165-CR.
• Citation: 2002 WI 97,255 Wis.2d 98,648 N.W.2d 385
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Jay D. KRAJEWSKI, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

255 Wis.2d 98

2002 WI 97

648 N.W.2d 385

STATE of Wisconsin, Plaintiff-Appellant, v. Jay D. KRAJEWSKI, Defendant-Respondent-Petitioner.

No. 99-3165-CR.

Supreme Court of Wisconsin.

Oral argument November 8, 2001.

Decided July 10, 2002.

For the defendant-respondent-petitioner there were briefs by Christopher A. Mutschler and Anderegg & Mutschler, LLP, Fond du Lac, and oral argument by Rex Anderegg.

For the plaintiff-appellant the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DAVID T. PROSSER, J.

The issue presented in this case is whether the state may require a warrantless blood draw for alcohol concentration testing from a person who is arrested on probable cause for operating a motor vehicle while under the influence of an intoxicant (OWI), when the person refuses to submit to a requested blood test under the implied consent statute but offers to submit to a breath test in lieu of a blood test.

¶ 2. The circuit court for Jefferson County, Jacqueline R. Erwin, Judge, suppressed the results of the blood test administered to the defendant, Jay D. Krajewski, following his arrest for OWI. The circuit court concluded that a non-consensual blood draw is unreasonable and unconstitutional when a defendant offers to submit to an available and less intrusive method of testing for blood alcohol concentration. The court of appeals reversed, determining that the defendant's case was controlled by this court's decision in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). The court of appeals ruled that the warrantless blood draw met the requirements established in Bohling and was lawful. State v. Krajewski, No. 99-3165-CR, unpublished order at 3 (Wis. Ct. App. Dec. 5, 2000).

¶ 3. We accepted Krajewski's petition for review and hold that 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. We conclude that the warrantless blood draw in this case was properly based on exigency and complied with factors enumerated in Bohling. Accordingly, we affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 4. The facts stated below are based upon testimony at preliminary and suppression hearings as well as stipulations by the parties, documents in the record, and the factual findings of the circuit court. For the purpose of reviewing the circuit court's decision to suppress Krajewski's blood test, the test results are not in dispute.

¶ 5. Wisconsin State Trooper Richard Torrez was on duty in the early morning hours of May 2, 1999. At approximately 1:18 a.m., he stopped a Volkswagen Jetta traveling west on Interstate 94 near Johnson Creek in Jefferson County. The vehicle was driven by Jay Krajewski. Trooper Torrez observed the Krajewski vehicle traveling along the fog line on the right side of the highway. After hugging the fog line for approximately 1,000 feet, the vehicle veered toward the center of the highway, then moved back across the fog line close to the rumble strips for approximately 2,000 feet. The vehicle eventually traveled back across the fog line to the center of the right lane, then switched into the left lane, speeding up by 10 miles per hour as it changed lanes. Torrez followed Krajewski into the left lane, prompting the Krajewski vehicle to move back into the right lane where it subsequently exited the highway to enter a rest area. At that point, Torrez pulled Krajewski over for operating his vehicle erratically and in excess of the speed limit.

¶ 6. When Torrez approached the vehicle, Krajewski told him that he did not have a driver's license but had a state identification card. Torrez noticed that Krajewski's breath smelled of an intoxicant. Krajewski offered that he had consumed three or four beers in the prior 12 hours and had last consumed alcohol about four hours before he was stopped.¹ Krajewski told Torrez that he was driving from Milwaukee to Adams County to check on his parents who had left a phone message early in the morning of May 1, asking him to call them as soon as possible. Krajewski said he was worried about his parents because he had been unable to contact them during the day. ¶ 7. Krajewski agreed to perform field sobriety tests. According to Torrez, Krajewski failed each of the three tests administered.² Krajewski then submitted to a preliminary breath test (PBT) pursuant to Wis. Stat. § 343.303 (1997-98).³ The results indicated that the alcohol concentration in Krajewski's blood was 0.20.⁴ Torrez arrested Krajewski for operating a motor vehicle while under the influence of an intoxicant, contrary to Wis. Stat. § 346.63(1)(a).⁵

¶ 8. Trooper Torrez testified at the suppression hearing that he was aware that Krajewski had four prior convictions for driving while intoxicated. He also knew that the State Patrol had a policy to request a blood sample for second and subsequent offenses. Consequently, Torrez transported Krajewski to Countryside Home (Countryside)—a county nursing home in Jefferson that administers blood draws—to obtain a blood sample. ¶ 9. When they arrived, Torrez read the "informing the accused" warnings found in Wis. Stat. § 343.305(4), then asked Krajewski if he would submit to a blood draw. Krajewski refused. Krajewski testified that he told Torrez, "that I did not—that I had had a fear of needles and that I did not want to have blood withdrawn from me." Krajewski further testified that he offered to give either a breath or a urine sample "clearly at least twice."

¶ 10. When Trooper Torrez was told that Countryside's policy was not to draw blood from a person who did not consent to a blood draw, he decided to take Krajewski to Fort Atkinson Memorial Hospital, which he believed would draw blood from a nonconsenting person. At the hospital, Torrez again read the informing the accused form to Krajewski. Torrez testified that Krajewski again refused to submit to a blood draw but said he would "dance circles" if he were allowed to contact his parents. Torrez took this to mean that Krajewski would submit to a blood draw if he could first check on his parents.

¶ 11. Sergeant Paul Wallace of the Jefferson County Sheriff's Department, one of four other officers who had been called to meet Torrez at the hospital,⁶ then spoke to Krajewski, telling him that the officers were going to obtain a blood sample with or without his consent. Wallace testified that Krajewski told him that he wanted to contact his parents. According to Wallace, Krajewski stated that he did not want to take a test for alcohol concentration because if he submitted he would be "[expletive]." Sergeant Wallace told Krajewski that after the blood draw he would help Krajewski contact his parents.

¶ 12. Krajewski refused to submit but advised Sergeant Wallace that he would agree not to resist physically. A registered nurse obtained two blood specimens at approximately 3:25 a.m.⁷ The resulting blood test showed that the alcohol concentration in Krajewski's blood was 0.219 grams per milliliter, significantly greater than the 0.08 limit for persons with two or more previous convictions, suspensions, or revocations. See Wis. Stat. § 885.235(1g)(cd). After the blood draw, Krajewski was taken to the Jefferson County Jail. Sergeant Wallace contacted Adams County authorities, who contacted Krajewski's parents. They in turn called to report that they were fine.

¶ 13. The state charged Krajewski with one count of operating a motor vehicle while intoxicated, as a fifth or subsequent offense, contrary to Wis. Stat. §§ 346.63(1)(a), 346.61 and 346.65(2)(e); one count of operating a motor vehicle with a prohibited alcohol concentration, as a fifth or subsequent offense, contrary to Wis. Stat. §§ 346.63(1)(b), 346.61 and 346.65(2)(e); and one count of operating after revocation, as a second offense, contrary to Wis. Stat. §§ 343.44(1) and 351.08.

¶ 14. After the preliminary hearing, Krajewski filed a motion to suppress the results of the blood test, alleging that the seizure of his blood had violated his rights under the state and federal constitutions.⁸ ¶ 15. Both Trooper Torrez and Sergeant Wallace testified that they could not remember whether Krajewski offered to submit to a breath or urine test. However, the circuit court stated in its order that "[Krajewski] testified unequivocally that he requested a breath test instead of a blood test due to his fear of needles." It found that Krajewski "asked to take a breath test based on fear of needles. A blood test was, nonetheless, taken pursuant to the officer's policy and stated intent to take it by force if necessary." The circuit court determined that Krajewski had impliedly consented to a blood test pursuant to Wis. Stat. § 343.305, but had withdrawn his consent. It found that the officers could have timely administered a breath test as requested, and that after initially refusing the blood test, Krajewski had submitted "under protest."

¶ 16. The circuit court acknowledged that under Bohling, "forcible blood draws were available under the exigent circumstances exception to the Fourth Amendment." However, relying upon Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), the court determined that exigent circumstances are not present when a defendant consents to undergo a test other than a blood test. It ruled that "[W]hen consent to a less intrusive seizure meets a coerced or forcible seizure, the latter method is unreasonable." It therefore granted Krajewski's motion to suppress. This was the order reversed by the court of appeals.

II. STANDARD OF REVIEW

[1]

¶ 17. For the purposes of this appeal,...