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[T] State v. Miller4/30/2003
. Robert H. Miller appeals from a judgment of the trial court denying a motion to suppress the results of the analysis of a blood sample. Miller argues that the arresting officer used unreasonable force to secure the blood draw and that a forcible blood draw over religious objections is unconstitutional. Because we find that the amount of force was not unreasonable under the circumstances and that Miller has not shown an honestly held religious conviction, we affirm.
. The parties stipulate that there was probable cause to arrest the defendant for drunk driving . When Deputy Ty Dick informed Miller that he would be taken to Waukesha Memorial Hospital to have blood drawn for testing, Miller refused the test. When Dick said that since it was Miller's second offense, the blood would be taken by force, Miller said he would "resist or fight ... all the way."
. Miller then objected to the blood test on the grounds of being a Jehovah's Witness. Dick asked if Miller had any proof of that. Members of the Jehovah's Witness sect are known to object to blood transfusions and many carry church-supplied cards to that effect, lest in the event of an accident or illness they be given medical treatment incompatible with their beliefs. Miller said he had no card and offered no other evidence of membership in the church.
. On the way to the hospital, Dick notified his dispatch center that Miller was going to resist the forced blood draw. The dispatcher contacted the City of Waukesha Police Department and when Miller and Dick arrived at the hospital's police escort room, they were met by two officers and a sergeant from the police department and by Deputy Carini from the sheriff's department. Dick instructed Miller to sit down. Miller said that he would stand; the deputy repeated his instructions, and one of the officers from the city escorted Miller to the chair.
. Dick issued citations to Miller, read him the Implied Consent form, and asked if he would submit to the blood test. Miller refused. When the phlebotomist arrived to take the blood sample, Sergeant Engel advised Miller that either he could submit or the officers would remove the equipment from the room, immobilize him on the floor, and take the blood sample. Miller repeated that it was against his religion to give a blood sample.
. Dick then removed the tables and chairs from the room and the other officers placed Miller face down on the floor with one officer holding each limb. As the phlebotomist attempted unsuccessfully to draw blood from Miller's left arm, he began to move his arm. The phlebotomist decided she needed a smaller needle, and while she was getting one, Miller said that he would cooperate if he were allowed to sit up. Dick told him that he had been given an opportunity to cooperate and "this is the route that we were taking and that this is what we were going to do."
. When the phlebotomist tried again with a smaller needle, Miller again began to move. At that point, Carini took hold of Miller's head to hold him still. Miller objected that what was happening was "not natural" based on his experience of giving blood six years ago. The phlebotomist was finally able to draw two vials of blood from Miller.
. In reviewing a motion to suppress, we will uphold the trial court's findings of historical facts unless they are clearly erroneous. However, the reasonableness of a warrantless blood draw is a legal question that we decide de novo. In State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), the Wisconsin Supreme Court held that
a warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circ
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