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State v. Faust7/2/2004
The operative facts of this case are undisputed. On February 19, 2002, Officer James Olsen of the Sheboygan Police Department was on routine patrol and was inspecting the license plates of vehicles parked behind a local tavern. Upon checking the plates of a 1998 Chevrolet coupe, Officer Olsen discovered that the plates were registered to an Audi coupe. A short time thereafter, Officer Olsen observed the vehicle leave the parking lot. Officer Olsen initiated a routine traffic stop, and the driver of the vehicle, the defendant, identified himself as one Jacob J. Faust. Officer Olsen noticed a "strong odor of intoxicants" emanating from the vehicle and observed that Faust was slurring his speech and exhibited bloodshot, glassy eyes. Upon questioning, Faust indicated to Officer Olsen that he had consumed "five brandies" before driving.
. Officer Olsen thereafter administered a field sobriety test that Faust failed to successfully complete. Faust then voluntarily submitted to a preliminary breath test under Wis. Stat. § 343.303 (2001-02),*fn2 the result of which indicated Faust possessed an alcohol concentration of 0.13.*fn3 Officer Olsen placed Faust under arrest and transported him to police headquarters. Upon arriving, Faust consented to provide a sample of his breath for chemical analysis. The results of the breathalyzer indicated that Faust possessed an alcohol concentration of 0.09 grams of alcohol per 210 liters of breath. Officer Olsen then performed a search of Faust's criminal driving record, the result of which indicated that Faust had two prior convictions for operating a motor vehicle while intoxicated. As an individual with two or more prior convictions for operating a motorized vehicle while intoxicated, Faust was subject to the prohibited alcohol concentration of 0.08. Wis. Stat. § 885.235(1g)(cd).
. Officer Olsen then requested that Faust provide a blood sample. After Officer Olsen read Faust the Informing the Accused form,*fn4 Faust refused to submit to the blood test without giving any reason. Officer Olsen then issued a Notice of Intent to Revoke Faust's license for refusing the blood test.*fn5 Faust was transported to the hospital where, following routine procedures, a phlebotomist administered the blood test. The result from the blood test indicated that Faust possessed a blood alcohol concentration of 0.1 grams of alcohol per 100 milliliters of blood. Officer Olsen did not request a drug analysis of Faust's blood sample. It is undisputed that Officer Olsen at no time sought a warrant for the blood test.
III. PROCEDURAL POSTURE
. On March 7, 2002, the State filed a criminal complaint against Faust, alleging violations of Wis. Stat. § 346.63(1)(a)(operating while intoxicated) and Wis. Stat. § 346.63(1)(b)(operating with a prohibited alcohol concentration). On October 15, 2002, Faust filed a motion to suppress the results of the blood test, arguing that the warrantless test was taken in violation of the United States and Wisconsin Constitutions because exigent circumstances did not exist due to the fact that the arresting officer already had obtained what he believed to be a voluntary and sufficient breath test that indicated Faust's level of intoxication was in excess of the legal limit. At the motion hearing, Officer Olsen indicated that while it was not department procedure to request a blood test in all drunken driving cases, he sought a blood test for the purpose of gathering additional evidence because the previous two tests were very near the legal limit. Officer Olsen also testified that at the time the breathalyzer was administered, he believed it to be a voluntary and satisfactory test. The circuit court granted Faust's motion to suppress on February 25, 2
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