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State v. Drews8/9/2000
tting minor intrusions] under stringently limited conditions in no way indicates that ... substantial intrusions ..." are permitted. We caution that the constitutional foundation of warrantless chemical evidence searches could give way if the "police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force." Id. at 54-55 (quoting Schmerber, 384 U.S. at 772, 760 n.4).
Second, when the passage from Schmerber is read with an understanding of Neville, the only possible conclusion is that "a reasonable request to undergo a different form of testing" can only arise when law enforcement is on the verge of forcibly extracting a blood sample.
. In summary, regarding Drews's suggestion that refusing to submit to a blood test is reasonable if one offers to take a breath test instead, we conclude that this is not the law in Wisconsin. The law in Wisconsin is found in City of Madison v. Bardwell, 83 Wis. 2d 891, 266 N.W.2d 618 (1978). In Bardwell, the supreme court concluded that it is solely the law enforcement agency's decision about which test to designate as the first of three alternate tests, and the driver does not have the right to refuse the first test offered and select one of the other two. See id. at 896, 901.
By the Court. -- Order affirmed.
Recommended for publication in the official reports.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
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