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State v. Swansby1/30/2003
. Carol Swansby appeals a judgment convicting her of operating a motor vehicle under the influence of an intoxicant (OMVWI). She claims the trial court erred in denying her motions to suppress evidence of the result of a blood test administered following her arrest. Specifically, Swansby argues that (1) police may not constitutionally request a blood sample from an OMVWI arrestee when a breath test of "equal evidentiary value" was readily available, and (2) Wisconsin's "implied consent" law is unconstitutional because it is impermissibly coercive. Because the issues Swansby raises have been conclusively decided adversely to her in precedents that are binding on this court, we reject her arguments and affirm the appealed judgment.
BACKGROUND
. The parties stipulated to the following facts for purposes of Swansby's motions to suppress the blood test result. Swansby was arrested for OMVWI and was thereafter requested to submit to a blood test for alcohol concentration. The requirements under Wis. Stat. § 343.305(4) for "informing the accused" were complied with, and Swansby submitted to the drawing of a blood sample. The sample was subsequently sent to the Wisconsin State Laboratory of Hygiene for analysis, which was performed "several days after collection" of the sample. No warrants were issued for either the drawing of the blood or its analysis.
. After the court denied her suppression motions, Swansby pleaded no contest and the court entered a judgment convicting her of second-offense OMVWI, a traffic crime. She appeals, citing as error the denial of her motions to suppress the blood test result.
ANALYSIS
. Swansby's first claim of error is easily disposed of. She acknowledges that the supreme court in State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 123 S. Ct. 704 (2002), and this court in State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, cert. denied, 531 U.S. 1153 (2001), have concluded that an officer may constitutionally request an OMVWI arrestee to submit to a blood test without regard to the availability of a breath test. Swansby asserts that, knowing we are bound by these precedents, she has raised the issue only in order to preserve the possibility of obtaining review in the U.S. Supreme Court. We accept Swansby's concession that her first claim of error lacks merit under the present state of the law in Wisconsin.
. The same is true with respect to Swansby's second contention.
. She argues in her opening brief that even if the arresting officer could constitutionally obtain a sample of her blood without a warrant, the sample should not have been analyzed without a warrant. Swansby contends that our holding in State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, to the contrary is distinguishable because it rests on the defendant's "implied consent" under Wis. Stat. § 343.305(2) to the testing of his or her blood for alcohol concentration. Here, Swansby challenges the constitutionality of the allegedly "coercive" implied consent statute, and thus, in her view, VanLaarhoven is not controlling.
. Neither, according to Swansby, is Village of Little Chute v. Walitalo, 2002 WI App 211, , 256 Wis. 2d 1032, 650 N.W.2d 891, review denied, 2002 WI 121, 257 Wis. 2d 120, 653 N.W.2d 892 (Wis. Sep. 26, 2002) (No. 01-3060), where we concluded that reading a defendant the "informing the accused" form, which threatens the loss of driving privileges if a test is refused, is not "coercion" that invalidates consent under the Fourth Amendment. Walitalo is not applicable, according to Swansby, because we did not address in Walitalo the constituti
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