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State v. Rose11/21/2002
. Jon Rose appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OMVWI), second offense. Rose contends the circuit court erred in denying his motions to suppress evidence. He argues that Wisconsin's Implied Consent Law, Wis. Stat. § 343.305, violates the Fourth Amendment to the United States Constitution and that the police may not analyze a blood sample seized from an intoxicated driver without obtaining a warrant. We disagree and therefore affirm.
. On October 16, 2000, an officer arrested Rose for OMVWI after Rose failed two field sobriety tests and refused to submit to other field tests, proclaiming, "I'm drunk and you're going to arrest me anyway." The officer read the "Informing the Accused" form to Rose in compliance with Wis. Stat. § 343.305(4). Rose submitted to a blood draw at St. Francis Hospital.
. Rose raises two issues: (1) May police draw blood from a driver arrested for OMVWI when a statutory breath test of equal evidentiary value and equally easy admissibility could have been administered instead? (2) May the police analyze, without first obtaining a warrant, a blood sample drawn from a driver who has been arrested without a warrant for OMVWI?
. Rose first claims the arresting officer had a duty to administer a breathalyzer test in lieu of a blood test. Rose's briefs concede that this case is controlled by State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, and mention the then-pending supreme court case of State v. Krajewski. The supreme court recently decided Krajewski, wherein it held that a warrantless nonconsensual blood draw from a person arrested on probable cause for a drunk driving offense is constitutional based on the exigent circumstances exception to the warrant requirement of the Fourth Amendment, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement, provided that the blood draw complies with the factors enumerated in Bohling. State v. Krajewski, 2002 WI 97, , ___ Wis. 2d ___, 648 N.W.2d 385.
Moreover, there is no evidence in the record that Rose requested an alternate test or objected to the blood draw. We need not explore this issue further.
. Rose next argues that Wisconsin's Implied Consent Law compels consent, thereby violating the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution. Both constitutions guarantee citizens the right to be free from unreasonable searches and seizures. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). We interpret the Wisconsin Constitution in accordance with the Supreme Court's interpretations of the search and seizure provisions of the federal constitution. See State v. Fry, 131 Wis. 2d 153, 172-73, 388 N.W.2d 565 (1986). The Supreme Court "`has consistently held that warrantless searches are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions.'" State v. Bohling, 173 Wis. 2d 529, 536, 494 N.W.2d 399 (1993) (quoting State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990)). We review the application of constitutional principles to undisputed facts on a de novo basis. State v. VanLaarhoven, 2001 WI App 275, , 248 Wis. 2d 881, 637 N.W.2d 411.
. Exigent circumstances are an exception to the Fourth Amendment and permit a warrantless blood draw without consent. See Schmerber v. California, 384 U.S. 757, 770-71 (1966). Because exigent circumstances justified a warrantless blood test after a lawful arrest, we need not consider whether the Wisconsin Implied Consent Law constitutes a coercive measure that invalidates consent fo
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