State v. Richards

• Citation: 948 N.W.2d 359,2020 WI App 48,393 Wis.2d 772
• Decision Date: 16 July 2020
• Docket Number: Appeal No. 2017AP43-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Donnie Gene RICHARDS, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

393 Wis.2d 772

948 N.W.2d 359

2020 WI App 48

STATE of Wisconsin, Plaintiff-Respondent,

v.Donnie Gene RICHARDS, Defendant-Appellant.

Appeal No. 2017AP43-CR

Court of Appeals of Wisconsin.

Submitted on December 6, 2019

Opinion Filed July 16, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Alisha McKay and Colleen Marion, assistant state public defenders of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of David H. Perlman, assistant attorney general, and Brad D. Schimel, attorney general.

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.

FITZPATRICK, P.J.

¶1 Donnie Gene Richards was found by a sheriff's deputy behind the wheel of a motor vehicle, severely injured, at the scene of an accident. The deputy determined that there was probable cause to believe that Richards had been operating the vehicle while under the influence of an intoxicant (OWI). See WIS. STAT. § 346.63(1)(a) (2011-12).¹ Because Richards, then unconscious, would shortly be taken by helicopter to a hospital approximately fifty miles away, the deputy decided that there would not be sufficient time to obtain a search warrant for a blood draw. Blood was drawn from Richards, at the deputy's request, before Richards was placed in the helicopter.

¶2 Richards was charged in the Waushara County Circuit Court with OWI, 12th offense. Richards requested in the circuit court that the results of the blood test be suppressed on the ground that his constitutional rights were violated in that the blood draw was done without a search warrant. The circuit court denied Richards' motion after an evidentiary hearing. The court determined that, because there were exigent circumstances, a search warrant was not required for the blood draw. Richards pleaded guilty to OWI 12th offense and was sentenced. On appeal, Richards challenges the circuit court's denial of his suppression motion. Applying the factors set forth in Mitchell v. Wisconsin , ––– U.S. ––––, 139 S. Ct. 2525, 204 L.Ed.2d 1040 (2019), we affirm.

BACKGROUND

¶3 Waushara County Deputy Ryan McElroy testified at the suppression hearing to the following material facts.

¶4 McElroy was dispatched to an accident scene at approximately 11:30 p.m. on July 30, 2014, and he remained at the scene for about an hour. When he arrived, McElroy observed a vehicle in a ditch facing the wrong direction with its engine running. McElroy found Richards sitting in the driver's seat of the vehicle and observed that Richards was severely injured with a laceration on his forehead

, a swollen and apparently broken arm, and the other arm lacerated so badly that fatty tissue within the cut was exposed. McElroy contacted emergency medical services (EMS) personnel immediately after arriving at the accident scene.

¶5 Richards smelled of intoxicants. There were several open beer cans strewn about the inside of the vehicle.

¶6 McElroy attempted to talk to Richards at the accident scene, but Richards faded in and out of consciousness. It appeared to McElroy at the scene that Richards' injuries would prevent him from responding, or consenting, to a request for a blood draw or breath test.

¶7 When EMS personnel arrived, they informed McElroy that Richards would be initially transported by ambulance to the Wild Rose Hospital, and then helicopter transport would be necessary so that Richards could be treated about 50 miles away at Theda Clark Medical Center in Neenah.

¶8 EMS personnel were on the scene for about 15 to 20 minutes before transporting Richards to the Wild Rose Hospital. During the time EMS personnel were on the scene, McElroy remained with Richards. While at the accident scene, McElroy was not specifically gathering evidence to support an OWI charge. Instead, his focus was on Richards' serious injuries and getting Richards treatment for those injuries.

¶9 As Richards was placed in the ambulance at the accident scene, McElroy noticed that the laceration on Richards' head had grown larger, and it appeared that Richards' "entire forehead dropped down" to his brow. Before leaving the scene, McElroy was advised by Waushara County dispatch that Richards had at least three prior OWI convictions. Once en route to the Wild Rose Hospital, EMS personnel notified McElroy that Richards had lost consciousness.

¶10 During the ten- to fifteen-minute drive to the Wild Rose Hospital, McElroy knew that Richards would be airlifted by helicopter at some future point, but was not certain of how soon that would occur. Prior to arriving at the Wild Rose Hospital, McElroy "decided that there was enough probable cause that [Richards] was operating while intoxicated."

¶11 McElroy arrived at the Wild Rose Hospital at approximately 12:45 a.m. When McElroy arrived at the Wild Rose Hospital, he was told that Richards would be put on a helicopter for Theda Clark Medical Center "[a]s soon as possible." To facilitate that, Richards was not taken into the Wild Rose Hospital but was kept in the ambulance. The scene at the Wild Rose Hospital was "hectic" as there was concern over getting Richards treatment for his injuries.

¶12 McElroy asked a member of the Wild Rose Hospital staff to perform a blood draw on Richards, and blood was drawn at approximately 12:55 a.m. while Richards was still in the ambulance. The test of the blood draw would later show that Richards had a blood alcohol content of .196. At approximately 1:15 a.m. Richards was airlifted by helicopter to Theda Clark Medical Center.

¶13 At the suppression hearing, McElroy described the typical procedure to obtain a search warrant for a blood draw in Waushara County. Search warrants for blood draws in OWI cases are accomplished by phone to the Waushara County Circuit Court Judge. Typically after investigation, it takes another twenty to thirty minutes to prepare the paperwork and be prepared to answer the questions likely to be posed by the judge regarding the search warrant.

¶14 The State charged Richards with OWI, 12th offense, pursuant to WIS. STAT. § 346.63(1)(a), and operating a motor vehicle with a prohibited alcohol concentration (PAC), 12th offense, pursuant to § 346.63(1)(b).

¶15 Richards filed a motion to suppress the blood test results on the ground that his constitutional rights were violated because the blood draw was done without a search warrant. After an evidentiary hearing, the circuit court denied the motion, concluding that the warrantless blood draw was justified by exigent circumstances.

¶16 Richards pleaded guilty to OWI, 12th offense, and the PAC charge was dismissed and read in at sentencing. Richards challenges on appeal the circuit court's denial of his suppression motion.

¶17 We will mention other material facts in the following discussion.

DISCUSSION

¶18 Richards argues that the circuit court erred in denying his motion to suppress the test results of the blood draw because, without a search warrant, the blood draw violated his right to be free from unreasonable searches under the Fourth Amendment to the U.S. Constitution. The State argues that no search warrant was required because there were exigent circumstances related to Richards' injuries and his unconscious state at the time of the blood draw.

¶19 We begin our analysis by discussing governing principles regarding blood draws and exigent circumstances, and our standard of review.

I. Governing Principles and Standard of Review.

¶20 This court recently considered governing principles regarding blood draws and exigent circumstances in the OWI context in State v. Hay , 2020 WI App 35, 392 Wis.2d 845, 946 N.W.2d 190, and we now quote pertinent portions of that opinion:

"A blood draw is a search of the person," and performing such a search without a warrant is "presumptively unreasonable" under the Fourth Amendment. State v. Brar , 2017 WI 73, ¶16, 376 Wis. 2d 685, 898 N.W.2d 499 (citation omitted); State v. Howes , 2017 WI 18, ¶20, 373 Wis. 2d 468, 893 N.W.2d 812. There are, however, several recognized exceptions to the warrant requirement. State v. Ziedonis , 2005 WI App 249, ¶13, 287 Wis. 2d 831, 707 N.W.2d 565. The exception at issue in this case—exigent circumstances—applies when, based upon the totality of the circumstances, "the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." See Missouri v. McNeely , 569 U.S. 141, 148-49, 156, 133 S.Ct. 1552, 185 L.Ed.2d 696 ... (2013) (citation omitted); Howes , 373 Wis. 2d 468, ¶¶23, 29, 893 N.W.2d 812. Exigent circumstances exist when "the need for a search is urgent and there is insufficient time to obtain a warrant." State v. Dalton , 2018 WI 85, ¶39, 383 Wis. 2d 147, 914 N.W.2d 120.

"In an OWI case, the natural dissipation of alcohol in the bloodstream may present a risk that evidence will be destroyed and may therefore support a finding of exigency in a specific case." Dalton , 383 Wis. 2d 147, ¶40, 914 N.W.2d 120. Exigent circumstances justifying a warrantless blood draw also "may arise in the regular course of law enforcement due to delays from the warrant application process." Id. (citation omitted).

Id. , ¶¶10-11.

¶21 Appellate review of a circuit court's order regarding a motion to suppress evidence presents a question of constitutional fact necessitating a two-step review process. State v. Tullberg , 2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d 120. First, we uphold the circuit court's factual findings unless those are clearly erroneous. Id. Second, this court independently applies constitutional principles to the facts. Id.

¶22 We now consider the U.S. Supreme Court's opinion in Mitchell .

II. Mitchell v. Wisconsin. ²

¶23 In Mitchell , the U.S. Supreme Court considered whether there are exigent circumstances which provide an exception to the Fourth Amendment warrant requirement when a blood draw is taken from an unconscious motorist. The Supreme Court sets forth a "rule" in the "narrow but important category" of ...