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State v. Hepler11/21/2002
stified a warrantless blood test after a lawful arrest, we need not address whether the Wisconsin Implied Consent Law constitutes a coercive measure that invalidates consent for Fourth Amendment purposes.
. Consistent with Schmerber, Bohling requires the police to meet four criteria for a warrantless blood draw: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for an OMVWI-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 is performed in a reasonable manner; and (4) the arrestee presents no reasonable objection to the blood draw. Bohling, 173 Wis. 2d at 533-34.
. Hepler has failed to address whether the blood draw meets all of the Bohling requirements. The State contends it does, and we agree. First, the State seized the blood sample after the officer arrested Hepler for operating a moving vehicle while intoxicated. Hepler does not claim the police used the sample for any purpose other than to obtain evidence of her intoxication. Second, Hepler told the officer she had been drinking, smelled of alcohol, and failed three sobriety tests, including a breath test showing a blood alcohol concentration of 0.18. There was a clear indication that the blood draw would produce evidence of intoxication. Third, Divine Savior Hospital drew the blood sample. There is no evidence that the procedure used was unreasonable. Fourth, Hepler did not object to the test during the procedure. Therefore, the warrantless blood draw was permissible under Bohling.
. Hepler also argues that testing the blood sample constituted a second search, for which there was neither consent nor exigent circumstances. We rejected the "second search" argument in Village of Little Chute v. Walitalo, 2002 WI App 211, __ Wis. 2d __, 650 N.W.2d 891, holding "that the examination of a blood sample seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a separate judicially authorized warrant." Id. at n.2, (citing VanLaarhoven, 2001 WI App 275 at ).
. Hepler attempts to distinguish VanLaarhoven because there we did not address whether Wis. Stat. § 343.305 is a coercive measure that invalidates consent. This distinction fails. VanLaarhoven relied upon the Wisconsin Implied Consent Law to justify a search; we rely upon the exigent circumstances exception to the Fourth Amendment of the United States Constitution. VanLaarhoven, 2001 WI App 275 at . VanLaarhoven also relied on United States v. Snyder, 852 F.2d 471 (9th Cir. 1988), a case nearly identical to Hepler's. The Snyder court stated: "It seems clear, however, that Schmerber viewed the seizure and separate search of the blood as a single event for fourth amendment purposes." Snyder, 852 F.2d at 473-74, quoted in VanLaarhoven, 2001 WI App 275 at . Regardless of whether the police seized the sample pursuant to a warrant or an exception to the warrant requirement, drawing and testing a blood sample constitutes a single search. See VanLaarhoven, 2001 WI App 275 at .
By the Court. -- Judgment affirmed.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
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