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State v. Harshman9/12/2000
standing, Harshman contends that the blood draw violated the Fourth Amendment because he agreed to submit to a readily available breath test. He argues that the blood demand was unreasonable because a breath test was readily available, the breath test carries the same evidentiary weight as a blood test, and the breath test is less intrusive. Harshman also argues that Schmerber v. California, 384 U.S. 757 (1966), and Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), require the conclusion that because blood tests are inherently more intrusive than breath tests, when a defendant agrees to submit to a breath test, the State's need for a blood test disappears. This court rejects his argument.
. Schmerber allows the State to force a person suspected of OWI to submit to a blood extraction over the suspect's objection. See South Dakota v. Neville, 459 U.S. 553, 559 (1983). Harshman suggests this theme in his first "blood draw" argument. He notes that Schmerber reserved the question whether exigent circumstances exist permitting blood to be taken when other less intrusive tests are available. He then moves to a brief discussion of Nelson, a case involving a proposed class action alleging 42 U.S.C. § 1983 (1994) violations. The class representatives alleged that "following their arrests for driving under the influence of alcohol they were coerced into submitting to blood tests in order to determine their blood alcohol level, and deprived of the statutorily mandated option to take a breath or urine test instead." Id. at 1199. The ninth circuit, relying in part on Schmerber, concluded that when an OWI suspect agrees to undergo an alternative blood alcohol content test, it is unreasonable for the State to insist on a blood test and the Fourth Amendment is thus violated. See id. at 1207.
. Nelson does not control. First, Wisconsin courts are not bound by decisions of the federal courts. See Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 307, 340 N.W.2d 704 (1983). More importantly, Nelson does not address the precise issue before this court. A law enforcement agency in California is required to advise a driver that he or she can choose between a breath and blood test. By contrast, under Wis. Stat. § 343.305(2), the agency may designate the primary test the driver must take. This court thus concludes that a federal court decision concerning whether it is unreasonable under the Fourth Amendment to deny California OWI suspects their statutorily guaranteed choice is of no precedential value in Wisconsin.
By the Court. -- Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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