State v. VanDemortel
| Decision Date | 28 January 1999 |
| Docket Number | No. 98-1268-CR,98-1268-CR |
| Citation | 590 N.W.2d 282,224 Wis.2d 643 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Walter P. VanDeMORTEL, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Grant County: JOHN R. WAGNER, Judge. Affirmed.
Before Eich, Vergeront and Deininger, JJ.
Walter VanDeMortel appeals from a judgment of conviction for homicide by intoxicated use of a vehicle in violation of § 940.09(1)(a), STATS. VanDeMortel argues the trial court erred in denying his motion to suppress the blood test results because: (1) probable cause for his arrest did not exist; (2) even if the arrest were valid, he was no longer in custody after he was transferred to a hospital in Iowa where the blood was drawn; (3) he was not advised of his rights and obligations under the implied consent law; and (4) the State failed to properly authenticate the blood samples because the chain of custody included a period of several hours when the blood was unattended. We conclude that the blood was drawn incident to a valid arrest supported by probable cause; VanDeMortel was in custody at the time the blood was drawn; the implied consent law did not apply; and the evidence was sufficient to render it improbable that the blood had been tampered with. We therefore affirm.
At about 11:00 p.m. on December 21, 1996, VanDeMortel was the driver of a van involved in a two-vehicle collision in which the driver of the other vehicle was killed. Officer James Kopp was the first officer to arrive at the scene. Officer Kopp found VanDeMortel lying on his back, complaining of a back injury. Officer Kopp observed that VanDeMortel's eyes were bloodshot and his speech was "real slurred" and hard to understand. In response to Officer Kopp's questions, VanDeMortel stated that "he was just driving along and the accident happened," that his van "had a tendency of floating as it was going down the road" and that he had been drinking. When asked how much, VanDeMortel said "maybe a couple of beers." Officer Kopp noticed a moderate-to-strong odor of intoxicants coming from VanDeMortel.
Officer Kopp covered VanDeMortel with a blanket and instructed him to stay lying down until the ambulance arrived, at which time the EMTs placed VanDeMortel on a backboard and, with Officer Kopp's help, put him in the ambulance. While VanDeMortel was in the ambulance, Officer Kopp told him that he was placing him under arrest for operating a motor vehicle while intoxicated. VanDeMortel indicated that he did not understand, so Officer Kopp repeated that he was placing him under arrest. The ambulance then transported VanDeMortel to a nearby hospital in Dubuque, Iowa, and Officer Kopp remained at the scene.
After VanDeMortel arrived at the hospital, Deputy William Brietsbrecker from the Grant County Sheriff's Department arrived at the Iowa hospital to speak to VanDeMortel and gather evidence. Deputy Brietsbrecker reminded VanDeMortel that he had been placed under arrest, told him that he would be taking some blood samples, and questioned him about the accident.
At 1:25 a.m. on December 22, the medical technologist at the hospital drew three vials of blood from VanDeMortel, sealed them and gave them to Deputy Brietsbrecker, who put them in a styrofoam container that was pre-addressed to the State Laboratory of Hygiene. Deputy Brietsbrecker sealed the container and kept it locked in the trunk of his squad car until two or three o'clock in the morning on December 23, when he placed the sealed container in a tray for outgoing mail in the secretary's area of the Grant County Sheriff's Department and locked the door to the office. 2 Eleven people who worked for the Sheriff's Department had keys to the office. The secretary in the Sheriff's Department testified that she arrived at work at 9:00 a.m. on December 23 and, although she does not remember the specific package, she routinely mails packages left in the tray. A chemist from the State Laboratory of Hygiene testified that he received the sealed vials of blood on December 26, tested them and determined the blood-alcohol content to be .205.
VanDeMortel filed motions to suppress the test results on the grounds that: (1) Officer Kopp had not established probable cause for the arrest in that he did not inquire as to whether VanDeMortel could perform field sobriety tests and therefore the subsequent blood draw was invalid; (2) Deputy Brietsbrecker did not ask VanDeMortel's permission before having blood drawn and therefore the Implied Consent Law was not followed; and (3) the police did not properly handle the blood samples to guarantee their authenticity in that they sat unattended in the Sheriff's Department for several hours and there is no verification that they were mailed to the testing lab. 3
After a hearing on these issues, the trial court denied the motions and ruled: (1) probable cause was established and it was reasonable for Officer Kopp not to administer field sobriety tests to a suspect who was lying down and complaining of a back injury; (2) Deputy Brietsbrecker did not need VanDeMortel's consent to draw blood under State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427 (1987), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); and (3) since there was no evidence that the blood samples had been tampered with, the alleged problems in the chain of custody go to the weight of the evidence, not to admissibility.
On appeal VanDeMortel renews these arguments and also argues that, even if the arrest made in Wisconsin were valid, VanDeMortel was no longer under arrest in the Iowa hospital and Deputy Brietsbrecker did not have the authority to have blood drawn.
VanDeMortel contends Officer Kopp did not have probable cause to place him under arrest, and the blood samples were therefore taken in violation of his Fourth Amendment rights. In order for a search incident to arrest to be valid, the arrest must be supported by probable cause. See Schmerber, 384 U.S. at 768-69. Probable cause to arrest is a constitutional question, which we review de novo. See State v. Koch, 175 Wis.2d 684, 700, 499 N.W.2d 152, 160 (1993); State v. Babbitt, 188 Wis.2d 349, 356-57, 525 N.W.2d 102 (Ct.App.1994). Probable cause exists when the totality of the circumstances within the arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe that the defendant probably committed the offense. See Babbitt, 188 Wis.2d at 356-57, 525 N.W.2d at 104.
In this case Officer Kopp knew the following about VanDeMortel: he was driving a van involved in a serious two-vehicle collision, he admitted he had been drinking, his speech was very slurred and hard to understand, his eyes were bloodshot, he emitted a moderate-to-strong odor of alcohol, he commented that he did not know how the accident happened and that his van tends to "float," and he was lying on his back complaining of a back injury. Field sobriety tests are not always necessary to establish probable cause. See State v. Kasian, 207 Wis.2d 611, 622, 588 N.W.2d 687, 692 (Ct.App.1996). In this case, even without field sobriety tests, all the circumstances within Officer Kopp's knowledge were sufficient to lead a reasonable officer to believe that VanDeMortel was probably operating a motor vehicle while under the influence of an intoxicant.
Alternatively, VanDeMortel argues that, even if the arrest in Wisconsin were valid, VanDeMortel was nevertheless no longer under arrest or in custody when the blood was drawn in Iowa. When the facts are undisputed, "custody" is a question of law, which we decide de novo. See State v. Swanson, 164 Wis.2d 437, 445, 475 N.W.2d 148, 152 (1991). In Swanson, the supreme court adopted an objective test that assesses the totality of the circumstances to determine the moment of arrest for Fourth Amendment purposes: "whether a reasonable person in the defendant's position would have considered himself or herself to be 'in custody,' given the degree of restraint under the circumstances." Id. at 447, 475 N.W.2d at 152. The court went on to state: "The circumstances of the situation including what has been communicated by the police officers, either by their words or actions, shall be controlling under the objective test." Id. (emphasis added).
Officer Kopp specifically told VanDeMortel twice at the scene of the accident that he was under arrest for operating a motor vehicle while under the influence of an intoxicant. After the emergency transport to the hospital in Iowa, and while VanDeMortel was still being evaluated by the medical staff, Deputy Brietsbrecker arrived and told him that Officer Kopp had placed him under arrest.
Nevertheless, VanDeMortel argues that, despite the officers' statements, the fact that he was transferred to a hospital without police accompaniment and a police officer was not waiting for him when he arrived, discontinued the arrest. We recently considered a similar argument in State v. Buck, 210 Wis.2d 115, 565 N.W.2d 168 (Ct.App.1997). In Buck, the defendant was arrested at the scene of the accident, transferred by ambulance to a hospital and then transferred by helicopter to a regional medical center. The next day an officer questioned the defendant about the accident without advising him of his Miranda rights. We rejected the State's argument that the arrest had been discontinued with the transfers and therefore Miranda warnings were unnecessary. See id. at 124-25, 565 N.W.2d at 172. We concluded that, based on the officer's actions, the defendant was in custody despite the fact that the interview took place at least a day and a half later and after two unaccompanied transfers to hospitals. 4...
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