State v. Thorstad, 99-1765-CR.

• Decision Date: 17 August 2000
• Docket Number: No. 99-1765-CR.,99-1765-CR.
• Citation: 238 Wis.2d 666,2000 WI App 199,618 N.W.2d 240
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. John C. THORSTAD, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

238 Wis.2d 666

2000 WI App 199

618 N.W.2d 240

STATE of Wisconsin, Plaintiff-Appellant, v. John C. THORSTAD, Defendant-Respondent.¹

No. 99-1765-CR.

Court of Appeals of Wisconsin.

Submitted on briefs June 23, 2000.

Decided August 17, 2000.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Ralph A. Kalal of Kalal & Associates of Madison.

Before Dykman, P.J., Roggensack and Deininger, JJ.

¶ 1. DYKMAN, P.J.

The State appeals from an order granting John Thorstad's motion to suppress a warrantless blood test performed to obtain evidence of Thorstad's intoxication. The State contends that the blood test was admissible because Thorstad consented to the blood test, or in the alternative, because the blood test was justified under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). Thorstad argues that the blood test was properly suppressed because it was coerced and nonconsensual, and therefore, an unreasonable search in violation of the Fourth Amendment. We conclude that the test was admissible because it met the constitutional requirements for warrantless blood tests set out in Bohling, 173 Wis. 2d at 533-34. We therefore reverse.

I. Background

¶ 2. The parties stipulated to facts set forth in both the May 12, 1999 motion hearing and Thorstad's amended motion to suppress. The trial court decision relied on additional facts the parties do not contest. Thorstad was arrested on September 27, 1997, at the scene of a one-car accident.² His arrest followed his admission that he was the driver of the car and that he had been drinking a lot. He had also failed two field sobriety tests. Upon arrest, he was taken to Richland Hospital for a blood test. The arresting officer did not obtain a warrant for the blood test. Instead, the officer requested that Thorstad provide a blood sample for evidentiary analysis and read Thorstad an "Informing the Accused" form. The information on this form approximated the language mandated by WIS. STAT. § 343.305(4) (1997-98).³ Among other things, the form explained that Thorstad could refuse to submit to chemical testing, but that upon such refusal, his driving privileges would be revoked. After the officer read the form, Thorstad agreed to the blood test. At no time did Thorstad request that he be given the opportunity for an alternate form of test, nor did he ever refuse to take the blood test.

¶ 3. On October 20, 1997, the State filed a complaint against Thorstad, alleging one count each of operation of a motor vehicle while under the influence of an intoxicant and operation of a motor vehicle with a prohibited alcohol concentration in violation of WIS. STAT. § 346.63(1)(a) and (b).⁴ Thorstad moved to suppress blood test evidence of his intoxication, and later amended his motion. In his amended motion, Thorstad argued that the blood test was an unreasonable search in violation of the Fourth Amendment. The trial court concluded that the State had failed to meet its burden to justify the warrantless blood test and ordered the blood test suppressed. The State appeals.

II. Analysis

[1]

¶ 4. Whether a search is reasonable is a question of constitutional law that we review de novo. See State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992). The use of warrantless blood tests to detect evidence of intoxication in motorists suspected of drunk-driving related offenses has been held to be constitutionally permissible at least since the United States Supreme Court's decision in Breithaupt v. Abram, 352 U.S. 432 (1957). In Breithaupt, the Court affirmed a defendant's conviction over his objection that blood test evidence taken from him while unconscious was an unreasonable search and seizure under the Fourth Amendment. Id. at 434, 440.

¶ 5. Recognizing that "intrusions beyond the body's surface" implicated "interests in human dignity and privacy which the Fourth Amendment protects," the Supreme Court elaborated on the conditions under which blood tests were constitutionally permissible. Schmerber v. California, 384 U.S. 757, 769-70 (1966). In Schmerber, the Court held that the Fourth Amendment permitted a warrantless blood test after a lawful arrest. Id. at 759, 771. However, the Court qualified its holding by noting several conditions and circumstances underlying its conclusion. See id. at 770-72. First, given the facts of the case, there was a "clear indication" that evidence of intoxication would be found in the defendant's blood. Id. at 770. Second, the blood test was taken in a "reasonable manner" because it was taken "by a physician in a hospital environment according to accepted medical practices." Id. at 771. Third, because the human body rapidly eliminates alcohol from the system, "the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Id. at 770 (citation omitted). Finally, the Court noted that the defendant was not someone with a particular health or religious objection. See id. at 771. Therefore, a blood test was a reasonable means to measure intoxication: "[F]or most people the procedure involves virtually no risk, trauma, or pain." Id.

[2]

¶ 6. Relying on Schmerber, in Bohling, the Wisconsin Supreme Court held that given certain limitations, "a warrantless blood sample taken at the direction of a law enforcement officer is permissible." Bohling, 173 Wis. 2d at 533, 536. The Bohling court specifically noted that it read Schmerber to permit warrantless blood tests because the rapid dissipation of alcohol from the bloodstream constitutes exigent circumstances. Id. at 539-40. The presence of exigent circumstances is an exception to the Fourth Amendment's requirement that law enforcement authorities obtain a warrant to conduct a search. See New York v. Quarles, 467 U.S. 649, 653 n.3 (1984); State v. Kiekhefer, 212 Wis. 2d 460, 475, 569 N.W.2d 316 (Ct. App. 1997).

¶ 7. In outlining the requirements that must be met before a warrantless blood draw is permissible under the Fourth Amendment, the Bohling court examined the analysis in Schmerber. Bohling, 173 Wis. 2d at 537-41. The court concluded that warrantless blood draws are permissible when the following four requirements are met:

(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Id. at 533-34 (footnote omitted).⁵

¶ 8. The State argues that taking Thorstad's blood without a warrant was justified because the four requirements of Bohling were met. The State also contends that, regardless of Bohling, Thorstad consented to the blood test under WIS. STAT. § 343.305. In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277-78, 542 N.W.2d 196 (Ct. App. 1995), we summarized § 343.305:

Every driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. A person may revoke consent, however, by simply refusing to take the test. Thus, a driver has a "right" not to take the chemical test (although there are certain risks and consequences inherent in this choice). The legislature recognized that drivers being asked to take a chemical test should be informed of this choice and therefore requires law enforcement officers to provide drivers with certain information.

(Citations omitted.)

¶ 9. Thorstad does not contend that the law enforcement officer failed to provide the information mandated by WIS. STAT. § 343.305; nevertheless, he argues that the blood test was an unreasonable search under the Fourth Amendment. In support of his position, Thorstad relies heavily on a Ninth Circuit Court of Appeals case, Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998),cert. denied, 525 U.S. 981 (1998). In Nelson, the Ninth Circuit held that "[w]hen an arrestee requests but is denied the choice of an available breath or urine test, the exigency used to justify the warrantless blood test, the continues only because of the ... failure to perform the requested alternative test." Id. at 1205. Therefore, "blood tests [become] not only unnecessary and unreasonable, but violate[] the Fourth Amendment's warrant requirement." Id. However, Nelson was a class action where the Ninth Circuit limited the plaintiff class to those who had requested or consented to a breath or urine test instead of a blood test. Id. at 1203 & n.3. Thorstad did not request either alternate test. Furthermore, Nelson is not binding in Wisconsin. To the extent, if any, that Nelson is in conflict with the exigent circumstances analysis of Bohling and Schmerber, it is not for this court to resolve that conflict. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 10. Thorstad also argues that the blood test was an unreasonable search because it was involuntary and nonconsensual. However, Bohling does not require that the subject of the blood test give consent or voluntarily take the test, 173 Wis. 2d at 534-35, nor does Bohling thus depend on whether the subject of the blood test was deemed to have consented under WIS. STAT. § 343.305. Therefore, Thorstad's contention that his blood test was an unreasonable search must ultimately rest on one of the following premises: (1) the requirements of Bohling were not met; (2) § 343.305 is unconstitutional; or, (3) Bohling is unconstitutional.⁶

¶ 11. Even if it were clear from Thorstad's brief that he is arguing that Bohling is unconstitutional, we could not reach that question. This court cannot alter or overrule the constitutional standard set by Bohling. "The supreme court is the only state...