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State v. Tangye1/23/2003
. Jerrold N. Tangye appeals his conviction for operating a motor vehicle while intoxicated (OMVWI), contrary to Wis. Stat. § 346.63(1)(a). Tangye argues that Wis. Stat. § 343.305(2), Wisconsin's "implied consent" law, is unconstitutional because it coerces consent to a chemical "search" for intoxicants of blood drawn pursuant to an arrest for drunk driving. We conclude that any pressure employed by § 343.305(2) to obtain consent is reasonable and does not violate Fourth Amendment protections. Accordingly, we affirm the circuit court's judgment of conviction.
BACKGROUND
. In August 2000, deputy Bradley J. Gilbert was dispatched by the Green County Sheriff's Department to investigate a one-car rollover accident. Gilbert arrived at the accident scene and spoke with Tangye, the driver of the vehicle, who was standing in a ditch holding some personal belongings. While speaking with Tangye, Gilbert noticed a strong odor of intoxicants, that Tangye's speech was slurred and that his eyes appeared glassy and his face was flushed. Tangye agreed to submit to a preliminary breath test (PBT) and to perform field sobriety tests. The PBT indicated that Tangye had a .26% blood alcohol level and he also failed the sobriety tests. Gilbert arrested Tangye for OMVWI and transported him to Monroe Clinic Hospital for a blood test.
. At the hospital, Gilbert issued Tangye an OMVWI citation and read him the Informing the Accused form, as required by Wis. Stat. § 343.305(4). Tangye agreed to submit to an evidentiary chemical test of his blood, which revealed that he had a blood alcohol level of .10%. Tangye moved to suppress the evidence contending that the blood draw was obtained without a warrant in violation of his Fourth Amendment right against unreasonable search and seizures. In the alternative, Tangye argued that § 343.305 is unconstitutional and therefore, the chemical analysis of his blood obtained without valid consent or a search warrant was legally impermissible. Following a hearing on the issues, the circuit court denied the motion and convicted Tangye of OMVWI. Tangye appeals.
DISCUSSION
Standard of Review.
. Whether a statute is constitutional presents a question of law that we review de novo. State v. Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74, 83 (1993).
Wisconsin Stat. § 343.305.
. Wisconsin Stat. § 343.305(2) provides in relevant part:
Implied consent. 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 ....
If a person improperly refuses to submit to testing, his or her operating privileges are revoked. Section 343.305(10).
. Tangye argues that Wis. Stat. § 343.305 is unconstitutional because it coerces consent to a chemical "search" for intoxicants of blood "seized" pursuant to an arrest for drunk driving . He maintains that the threatened sanction of a loss of driving privileges for refusing to submit to a search for blood alcohol content invalidates his consent for Fourth Amendment purposes. Therefore, because his consent to the chemical analysis of the sample was coerced and because the officers did not obtain a search warrant prior to analyzing the sample, the chemical test must be suppressed. We disagree.
. We addressed this issue in State v. Wintlend, 2002 WI App 314, _ Wis. 2d ___, ___ N.W.2d ___. In Wintlend, we considered whether Wis. Stat. § 343.305 unreasonably coerced a motorist's consent to a blood alcohol test. W
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