 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
County of Iowa v. Bilse9/30/1999
BT and the sobriety tests.
B. Blood Test
Bilse argues that the blood test administered after his arrest violated the Fourth Amendment of the United States Constitution. He contends that the test was an unreasonable seizure of evidence since the Iowa County Sheriff's Department could have used a less intrusive breath test. He also asserts that the warrantless blood draw was not justified by exigent circumstances because, in his case, a breath test would have more quickly provided the same evidence.
Bilse bases his challenge of the blood test on the Ninth Circuit decision in Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), cert. denied, 119 S. Ct. 444 (1998). In that case, the Ninth Circuit held that when an arrestee consents to a breath or urine test, and such tests are available, to require a blood test is a violation of the Fourth Amendment because it is unreasonable and not justified by exigent circumstances. See id. at 1207. However, in Nelson, the court addressed California's implied consent law, which, at the time, allowed the arrestee to choose between a blood, breath or urine test. Id. at 1201. In contrast, Wisconsin's implied consent law allows the law enforcement agency to designate which test will be administered first. See § 343.305(2), Stats. Gunderson's decision to administer a blood test was thus justified by statute.
Essentially, Bilse challenges the constitutionality of Wisconsin's implied consent law. When the constitutionality of a statute is challenged, the attorney general must be notified and given an opportunity to be heard. See Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis.2d 192, 202, 405 N.W.2d 732, 737 (Ct. App. 1987). There is no record evidence that Bilse has notified the attorney general and we therefore do not review this issue.
By the Court. -- Judgment affirmed.
Not recommended for publication in the official reports. See Rule 809.23(1)(b)4, Stats.
Page 1 2 3 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|