State v. VanLaarhoven, No. 01-0222-CR.

CourtCourt of Appeals of Wisconsin
Citation637 N.W.2d 411,2001 WI App 275,248 Wis.2d 881
Decision Date10 October 2001
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Paul J. VANLAARHOVEN, Defendant-Appellant.
Docket NumberNo. 01-0222-CR.

248 Wis.2d 881
2001 WI App 275
637 N.W.2d 411

STATE of Wisconsin, Plaintiff-Respondent,
v.
Paul J. VANLAARHOVEN, Defendant-Appellant

No. 01-0222-CR.

Court of Appeals of Wisconsin.

Submitted on briefs July 19, 2001.

Decided October 10, 2001.


248 Wis.2d 883
On behalf of the defendant-appellant, the cause was submitted on the briefs of Michele A. Tjader of Kalal & Associates, Madison

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Bradley J. Priebe, assistant district attorney of Oshkosh.

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

Before Nettesheim, P.J., Anderson and Snyder, JJ.

¶ 1. ANDERSON, J.1

Paul J. VanLaarhoven appeals from a judgment of conviction for operating a motor vehicle while intoxicated, third offense, in violation of WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(c). VanLaarhoven challenges the denial of his motion to suppress the results of a chemical test of his blood. Specifically, VanLaarhoven contends that the police were required to obtain a search warrant before submitting his blood sample for testing. We reject his argument and affirm the judgment of conviction.

248 Wis.2d 884
¶ 2. The facts are not in dispute. VanLaarhoven was arrested for operating a motor vehicle while intoxicated. He was advised under the Implied Consent Law and consented to submit to a chemical test of his blood. A blood sample was drawn from VanLaarhoven only after he provided two insufficient breath samples. Some days later, the sample was submitted to the Wisconsin State Hygiene Laboratory for analysis. The results established a blood alcohol concentration of 0.173%

¶ 3. VanLaarhoven filed a series of motions. Included in the blizzard of motions was a motion to suppress on the grounds that regardless of whether the initial seizure of the blood sample without a warrant was lawful, the subsequent analysis of the blood sample required a warrant because there were neither exceptions to the warrant requirement nor exigent circumstances that justified the warrantless analysis of his blood. The trial court rejected VanLaarhoven's argument that the police could not conduct a search of his blood sample without first obtaining a warrant. VanLaarhoven then pled no contest, and he appeals from the judgment of conviction.

¶ 4. VanLaarhoven suggests that his blood sample, once obtained, cannot be analyzed for evidentiary purposes without obtaining a second search warrant. Whether a search warrant is required before a blood draw was recently addressed in State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, review denied, 2000 WI 121, 239 Wis. 2d 310, 619 N.W.2d 93 (Wis. Oct 17, 2000) (No. 99-1765-CR), cert. denied, Thorstad v. Wisconsin, 121 S. Ct. 1099 (U.S. Wis. Feb. 20, 2001) (No. 00-1145). There, citing to Schmerber v. California, 384 U.S. 757, 769-70 (1966), we acknowledged that the seizure of an Implied Consent Law blood sample falls under the "exigent circumstances"

248 Wis.2d 885
exception to the warrant requirement. Thorstad, 2000 WI App 199 at ¶ 5 ("[B]ecause the human body rapidly eliminates alcohol from the system, `the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.'"). However, VanLaarhoven contends that the exigency is over once the blood sample is obtained and the authority of the police to act further, without a judicially issued warrant, is terminated

[1, 2]

¶ 5. The issue VanLaarhoven presents on appeal requires the application of the constitutional principles of search and seizure. The application of constitutional principles to the undisputed facts is a question of law that we decide without deference to the circuit court's decision. State v. Foust, 214 Wis. 2d 568, 571-72, 570 N.W.2d 905 (Ct. App. 1997). Despite our de novo standard of review, we nonetheless value the trial court's decision on the issues. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

[3, 4]

¶ 6. Before addressing VanLaarhoven's arguments, it is necessary to briefly review search and seizure principles and Wisconsin's Implied Consent Law. Both the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution forbid unreasonable searches and seizures. State v. Boggess, 115 Wis. 2d 443, 448, 340 N.W.2d 516 (1983). Warrantless searches are deemed unreasonable per se, subject to a few carefully delineated exceptions that are "jealously and carefully drawn." Id. at 449. Included in the exceptions to the warrant requirement is consent to search. State v. Callaway, 106 Wis. 2d 503, 510, 317 N.W.2d 428 (1982).

248 Wis.2d 886
[5]

¶ 7. It is well accepted, from the statute and the case law, that under Wisconsin's Implied Consent Law, the consent given by all individuals who apply for a driver's license is the consent to provide a sample and the consent to the chemical analysis of the sample. WISCONSIN STAT. § 343.305(2) codifies the Implied Consent Law:

Any person who . . . drives or operates a motor vehicle upon the public highways of this state . . . is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol . . . when requested to do so by a law enforcement officer . . . or when required to do so. . . . Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests . . . and may designate which of the tests shall be administered first. (Emphasis added.)

In State v. Neitzel, 95 Wis. 2d 191, 201, 289 N.W.2d 828 (1980), the Wisconsin...

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18 practice notes
  • State v. Randall, No. 2017AP1518-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2019
    ...court's decision granting the motion to suppress.387 Wis.2d 752 ¶6 Based on the rationale of State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, and State v. Wantland, 2014 WI 58, 355 Wis. 2d 135, 848 N.W.2d 810, the court of appeals affirmed, reasoning that the Laborat......
  • People v. Woodard, No. 336512
    • United States
    • Court of Appeal of Michigan (US)
    • September 19, 2017
    ...that the testing of blood evidence "is an essential part of the seizure," 321 Mich.App. 388 State v. VanLaarhoven , 248 Wis. 2d 881, 891, 2001 WI App 275, 637 N.W.2d 411 (2001), and that "the right to seize the blood ... encompass[es] the right to conduct a blood-alcohol test......
  • State v. Randall, Appeal No. 2017AP1518-CR
    • United States
    • Court of Appeals of Wisconsin
    • June 14, 2018
    ...blood, together, comprise a single search to which constitutional protections attach, see State v. VanLaarhoven, 2001 WI App 275, ¶16, 248 Wis. 2d 881, 637 N.W.2d 411; and (2) the search had not yet been completed when Randall withdrew her consent before the blood was tested and, therefore,......
  • State v. Wallow, No. 2007AP2247-CR (Wis. App. 4/16/2008), No. 2007AP2247-CR.
    • United States
    • Court of Appeals of Wisconsin
    • April 16, 2008
    ...granting his or her consent. State v. Neitzel, 95 Wis. 2d 191, 201, 289 N.W.2d 828 (1980); State v. VanLaarhoven, 2001 WI App 275, ¶7, 248 Wis. 2d 881, 637 N.W.2d 411. By applying for a license, a driver waives any right he or she otherwise may have had to refuse to submit to chemical testi......
  • Request a trial to view additional results
18 cases
  • State v. Randall, No. 2017AP1518-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2019
    ...court's decision granting the motion to suppress.387 Wis.2d 752 ¶6 Based on the rationale of State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, and State v. Wantland, 2014 WI 58, 355 Wis. 2d 135, 848 N.W.2d 810, the court of appeals affirmed, reasoning that the Laborat......
  • People v. Woodard, No. 336512
    • United States
    • Court of Appeal of Michigan (US)
    • September 19, 2017
    ...that the testing of blood evidence "is an essential part of the seizure," 321 Mich.App. 388 State v. VanLaarhoven , 248 Wis. 2d 881, 891, 2001 WI App 275, 637 N.W.2d 411 (2001), and that "the right to seize the blood ... encompass[es] the right to conduct a blood-alcohol test......
  • State v. Randall, Appeal No. 2017AP1518-CR
    • United States
    • Court of Appeals of Wisconsin
    • June 14, 2018
    ...blood, together, comprise a single search to which constitutional protections attach, see State v. VanLaarhoven, 2001 WI App 275, ¶16, 248 Wis. 2d 881, 637 N.W.2d 411; and (2) the search had not yet been completed when Randall withdrew her consent before the blood was tested and, therefore,......
  • State v. Wallow, No. 2007AP2247-CR (Wis. App. 4/16/2008), No. 2007AP2247-CR.
    • United States
    • Court of Appeals of Wisconsin
    • April 16, 2008
    ...granting his or her consent. State v. Neitzel, 95 Wis. 2d 191, 201, 289 N.W.2d 828 (1980); State v. VanLaarhoven, 2001 WI App 275, ¶7, 248 Wis. 2d 881, 637 N.W.2d 411. By applying for a license, a driver waives any right he or she otherwise may have had to refuse to submit to chemical testi......
  • Request a trial to view additional results

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