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State v. Badalich11/2/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: ROBERT C. CRAWFORD, Judge. Affirmed.
Gregory Badalich appeals from a judgment convicting him on his guilty plea of operating an automobile while under the influence of an intoxicant, as a third offense, and from the trial court's order denying his motion for post-conviction relief. See § 346.63(1)(a), Stats. He raises two claims of alleged trial-court error. First, he claims that the trial court erred when it denied his motion to suppress results of a blood test that showed him with a blood-alcohol content exceeding .17. Second, he contends that the trial court erroneously exercised its sentencing discretion. We affirm.
. Badalich was arrested for operating an automobile under the influence of an intoxicant after he admitted to driving a Jeep into a lamppost, and the officers perceived evidence of intoxication. Badalich does not challenge the arrest. Rather, he contends that he had a right to refuse submitting to a test of his blood because he had already given a valid sample of his breath. The trial court ruled that the police lawfully required him to permit blood to be drawn from his body. We agree.
1. Blood Test.
. Under Wisconsin's implied consent law, every motorist driving on our roads consents to submit to the testing of his or her blood-alcohol content:
Any person who ... 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 under sub. (3)(a).
Section 343.305(2), Stats. (emphasis added). Additionally, pursuant to § 343.305(3)(a), Stats. (request upon arrest), " compliance with a request for one type of sample does not bar a subsequent request for a different type of sample." Moreover, blood may be drawn from a person involuntarily without a warrant because the exigency of the body's metabolism of the alcohol makes time of the essence. See State v. Bohling, 173 Wis.2d 529, 533-534, 494 N.W.2d 399, 400 (1993) (" warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.") (footnote omitted), cert. denied, 510 U.S. 836. There is no dispute but that none of the exceptions inherent in Bohling's criteria is present here, except, in Badalich's view, the fourth. Badalich's only complaint is that he should not have to give two samples-breath and blood. The statute, however, provides otherwise. Accordingly, it is not the type of "reasonable objection" envisioned by Bohling; "drivers accused of operating a vehicle while intoxicated have no `right' to refuse a chemical test." State v. Reitter, 227 Wis.2d 213, 225, 595 N.W.2d 646, 652 (1999). As the State points out i
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