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State v. Erickson1/16/2003
. Cara Erickson appeals judgments of the circuit court convicting her of homicide by intoxicated use of a vehicle contrary to Wis. Stat. § 940.09(1)(a) (1997-98), and causing injury by intoxicated operation of a vehicle contrary to Wis. Stat. § 346.63(2)(a)1. Erickson argues that her suppression motion should have been granted because police obtained a blood sample from her in violation of the requirements set forth in State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993). In particular, Erickson complains that the blood draw was invalid because (1) it was drawn without consent and without a warrant before she was arrested, and (2) police did not have probable cause to arrest her for a drunk-driving violation or crime. We affirm the circuit court.
Background
. On August 27, 2000, at approximately 5:40 a.m., Erickson crashed her pickup truck into a vehicle, setting the vehicle on fire. One occupant of the struck vehicle was killed and another was seriously injured. Erickson was questioned at the scene and was transported to the hospital for treatment of minor injuries she sustained. After continuing his investigation at the hospital, the officer directed hospital personnel to draw a blood sample from Erickson. At the time of the blood draw, Erickson had not been placed under arrest, the officer had not acquired a warrant, and Erickson had not given valid consent. Erickson's blood-alcohol content was 0.103% by weight. After the blood draw, Erickson was arrested and charged with several crimes arising out of the collision.
. Erickson moved to suppress evidence obtained from the blood draw, and the circuit court denied the motion. Erickson pled no contest to and was convicted of homicide by intoxicated use of a vehicle and causing injury to another by intoxicated operation of a vehicle.
Standard of Review
. The material facts are not disputed. When material facts are undisputed, the constitutional reasonableness of a search presents a question of law, which we review without deference to the circuit court. State v. Swanson, 164 Wis. 2d 437, 449-50, 475 N.W.2d 148 (1991).
Discussion
Whether Probable Cause to Search is a Substitute for a Formal Arrest under Bohling
. After the truck Erickson was driving struck a vehicle, killing one occupant and injuring another, the investigating police officer directed medical personnel to take a blood sample from Erickson without a warrant and without Erickson's consent. The parties agree that evidence obtained from the blood sample is admissible if the four prongs of Bohling are satisfied. In Bohling, the supreme court held that evidence resulting from a warrantless nonconsensual blood draw, taken at the direction of a law enforcement officer, is admissible 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. Bohling, 173 Wis. 2d at 534 (footnote omitted).
. The first dispute in this case centers on the first prong above and on a footnote in Bohling qualifying that prong. The footnote relies on our decision in State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979), and reads: "Probable cause to arrest substitutes for the predicate act of lawful arrest." Bohling, 173 Wis. 2d at 534 n.1. Erickson contends this footnote is both dicta and er
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