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State v. Rose11/21/2002
r Fourth Amendment purposes. "When a first vessel crosses a sea to a desired harbor, there is no good purpose served by finding out whether a different ship could have made the same successful journey." Meyer v. Ludwig, 65 Wis. 2d 280, 292, 222 N.W.2d 679 (1974).
. 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.
. Rose does not address whether the blood draw meets all of the Bohling requirements. The State contends it does, and we agree. First, the laboratory seized the blood sample after the officer arrested Rose for operating a motor vehicle while intoxicated. Rose does not claim the police used the sample for any purpose other than to obtain evidence of his intoxication. Second, Rose told the officer he was drunk, failed two field sobriety tests, and smelled of alcohol. There was a clear indication the blood draw would produce evidence of intoxication. Third, St. Francis Hospital drew the blood sample. There is no evidence that the procedure was unreasonable. Fourth, Rose did not object to the test during the procedure. Therefore, the warrantless blood draw was permissible under Bohling.
. Rose also argues that testing the blood sample constituted a second search, for which there was neither consent nor exigent circumstances. We rejected this "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 ).
. Rose 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 the search; we rely upon the exigent circumstances exception to the Fourth Amendment of the United States Constitution. See 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 Rose'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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