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State. v. Prochaska11/12/1998
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.
APPEAL from a judgment of the circuit court for Dane County: JACK F. AULIK, Judge. Reversed.
John Prochaska appeals from a judgment finding him guilty of causing injury by the intoxicated use of a motor vehicle. He claims that evidence of a blood test administered without his consent should have been suppressed. While Prochaska raises alternative arguments, we see the dispositive issue as whether he had been "arrest " by the police prior to administration of the test, which the supreme court stated in Scales v. State, 64 Wis.2d 485, 494, 219 N.W.2d 286, 292 (1974), "must precede the taking of the blood sample." And we conclude that, on this record, Prochaska had not been arrested by the officers prior to the non-consensual drawing of his blood.
After being involved in a one-car rollover accident in which one or more persons were injured, Prochaska was found at his home and taken to the hospital for treatment of injuries he sustained in the accident. Dane County Sheriff's Deputies Kurt Pierce and Mark Olson, after being dispatched to the scene, where they had noticed a smell of intoxicants on Prochaska's person and learned that, by his own admission, he had consumed three beers earlier in the evening, followed Prochaska to the hospital. According to the State's brief, the deputies then "told [Prochaska] that they would be charging him with causing injury by [operating a vehicle while intoxicated]," to which he replied: "For what? Only having four beers?" Olson then read Prochaska the "Informing-the-Accused" form required by the Implied Consent Law, and filled out a Uniform Traffic Citation charging him with the violation and notifying him to appear in court at a specified later date. Because Prochaska was being seen by a doctor at the time, Olson placed the citation with his personal belongings (which, we gather, were in the immediate area), and told him that a blood sample would be taken, which it was shortly thereafter. After completing the citation, Olson told Prochaska that a blood sample would be taken without his consent, which it was. Pierce and Olson departed as soon as the blood was drawn, leaving Prochaska at the hospital, from which we presume he was released following treatment for his injuries. At no time did either officer tell Prochaska that he was being placed under arrest, nor was that word used in any of their conversations with him, either at his home or at the hospital.
The State does not dispute Prochaska's assertion that, under Scales, a valid arrest must precede the taking of a blood sample. Rather, the State argues that, under the applicable law, Prochaska was under arrest when the sample was taken.
Whether a person is "in custody" or under arrest-especially where, as here, the material facts are undisputed-is a question of law subject to independent review on appeal. State v. Swanson, 164 Wis.2d 437, 445, 475 N.W.2d 148, 152 (1991). The test is "whether a reasonable person in the defendant's position would have considered himself or herself to be in custody, given the degree of restraint under the circumstances." State v. Gruen, 218 Wis.2d 581, 593, 582 N.W.2d 728, 732 (Ct. App. 1998). We consider "the totality of the circumstances" in making that determination, and we have said that those circumstances
include such relevant factors as the defendant's freed
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