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State v. Harshman9/12/2000
APPEAL from an order of the circuit court for Eau Claire County: THOMAS H. BARLAND, Judge. Affirmed.
. Wade Harshman appeals an order denying his motion to suppress the results of a blood test taken in connection with his arrest for operating a motor vehicle while under the influence of an intoxicant (OWI) in violation of Wis. Stat. § 346.63(1)(a). Harshman advances four arguments: The arresting officer went beyond the bounds of a proper investigative detention; (2) controlling Wisconsin authority creates an "exigency per se" rule when evidence of blood alcohol content is sought; (3) this court should eschew a per se rule in favor of a case-by-case analysis; (4) the results of the blood test should be suppressed because he gave a reason for not submitting and was willing to take an alternative test. This court concludes that the arresting officer stayed within the proper bounds of an investigative detention and that the blood test was not administered in violation of the Fourth Amendment. The order is therefore affirmed.
FACTS
. The following facts are undisputed. At approximately 1:38 a.m., deputy Robert Hevey clocked Harshman's vehicle at ninety-six miles per hour in a fifty-mile-per-hour zone. Hevey pursued Harshman, eventually catching up to him after Harshman had exited the highway onto North Clairemont Avenue. Hevey observed Harshman's vehicle cross into the right-hand lane and then into the left-hand lane, both times without signaling the lane change. Hevey activated his emergency lights but Harshman, then traveling at approximately five miles per hour over the speed limit, did not respond. Harshman then signaled to make a left-hand turn and, when he came to the intersection, he stopped, rolled down his window, stuck his head out, and pointed left toward a parking lot. Harshman entered the lot, "made a very large circle and it took him a while to finally come to a stop."
. As Hevey approached the vehicle, he observed a driver's license sticking out the driver's window, which had been rolled down approximately one inch. Hevey testified that he had encountered such "odd" behavior from a driver during a traffic stop on only one or two occasions during his nearly thirty years in law enforcement. When Hevey requested that Harshman roll down the window, Harshman replied, "I'm not going to do anything that you want me to, I want my lawyer." It was Hevey's experience that people who have been drinking frequently resist opening their windows to prevent the odor of intoxicants from escaping. When Hevey therefore moved closer to determine whether he could detect an odor coming from the vehicle, he noted a strong odor of intoxicants.
. Hevey testified that he asked Harshman approximately twenty-five to fifty times to roll down his window, and approximately twenty-five times to open the door and step out of the vehicle, and each time Harshman refused to comply. Hevey then handed Harshman's driver's license to another officer who had arrived on the scene, who checked Harshman's driving record. That check revealed that Harshman had been arrested for OWI on two prior occasions. When the second officer finished running the check, he too attempted in vain to gain Harshman's cooperation in opening the window or exiting the vehicle. At that point Hevey opened the driver's side door of Harshman's vehicle.
. Harshman was arrested for OWI. While Harshman was being transported to a hospital for a blood draw, he indicated that he would not allow officers to draw blood. Harshman testified that during the transport, he informed Hevey that he was afraid of needles. Hevey informed Harshman that because this was a third offense, state law mandated a blood
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