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State v. Faust10/1/2003
. The question here is whether exigent circumstances still exist for a nonconsensual and warrantless blood draw even after the State has already obtained a voluntary chemical breath test producing a valid sample. In State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089 (2002), our supreme court undertook to determine the parameters by which law enforcement could conduct a warrantless and nonconsensual blood draw in the context of an arrest for operating a motor vehicle while intoxicated pursuant to the exigent circumstances exception to the Fourth Amendment. Our supreme court instructed that " he exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Id., . We are bound by this statement. Accordingly, we hold that once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist. We therefore affirm the circuit court's order granting Jacob J. Faust's motion to suppress the results of the blood test.
. The facts are undisputed. On February 19, 2002, Sheboygan police officer James Olsen conducted a traffic stop in the city of Sheboygan. Prior to the stop, Olsen had observed that the license plate displayed on the car Faust was driving was registered to a 1988 Chevrolet Coupe, but was in fact attached to an Audi Coupe. Upon pulling the vehicle over and identifying the driver of the vehicle as Faust, Olsen noted a strong odor of intoxicants emanating from the vehicle and that Faust's speech was slurred and his eyes bloodshot and glassy. Olsen asked Faust how much he had to drink before driving and Faust admitted to downing "five brandies." After Faust failed field sobriety tests, Olsen administered a preliminary breath test which returned a result of a .13 g/100 ml blood alcohol content.
. Olsen then transported Faust to the Sheboygan police department, where he agreed to provide a sample of his breath for chemical analysis. The breath test reflected a blood alcohol content of .09 grams of alcohol per 210 liters of breath, which is .01 above the prohibited alcohol concentration (.08) pertinent to Faust as a third offender pursuant to Wis. Stat. § 885.235(1g)(cd) (2001-02). Although Olsen was aware that Faust was therefore operating with a prohibited blood alcohol level given his two prior convictions, he advised Faust that he would seek a blood test as well. Olsen then read Faust an Informing the Accused form. Faust refused to consent to the blood test, and a forced blood sample was subsequently drawn from him at the hospital. The blood sample ultimately reflected a blood alcohol level of .10 g/100 ml of blood.
. On October 16, 2002, Faust filed a motion to suppress the blood test results, arguing that since the breath test had already established that his blood alcohol exceeded the prohibited legal limit, there was no longer any exigency justifying a blood draw without a warrant. At the first motion hearing, Faust conceded that for the purposes of the hearing he was not challenging that the officer had probable cause to stop or arrest him. After a second motion hearing, the circuit court granted Faust's motion to suppress the blood test results, reasoning that "exigent circumstances did not exist to justify the warrantless taking of Faust's blood and ... the blood test was taken outside of statutory parameters." This appeal followed.
. For purposes of this appeal, there are no genuine issues of material fact. We are presented with the question of whether a forced blood draw meets the exigent circumstances exception
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