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City of Berlin v. Bartol6/9/2004
The facts are brief and undisputed. While on patrol on February 22, 2003, Officer Eric Olson of the City of Berlin Police Department stopped, detained, and arrested Bartol for OWI, first offense, contrary to Wis. Stat. § 346.63(1)(a). Olson transported Bartol to Berlin Memorial Hospital and read to her the Informing the Accused form. Olson asked Bartol if she would submit to a chemical test of her blood, and she said yes. Based upon this test result, Olson also cited Bartol for operating a motor vehicle with a prohibited alcohol concentration, first offense, contrary to § 346.63(1)(b). Bartol pled not guilty to both charges.
. Prior to trial, Bartol moved for suppression of the blood test results, arguing that the non-criminal nature of her case did not merit the level of intrusion a blood test entails and that Olson should have requested a less intrusive chemical test.*fn2 The court denied her motion. A jury found Bartol guilty on both charges, and she appeals.
DISCUSSION
. Bartol argues that Olson's choice of the chemical blood test was unreasonable because Bartol's offense was civil, not criminal, in nature. She contends that the Fourth Amendment protection against unreasonable search and seizure should prohibit arresting officers from using "the most invasive form of chemical test as the primary test under Wisconsin's Implied Consent Law" when the offense is a civil violation. The application of a constitutional standard to undisputed facts presents a question of law, which we review de novo. State v. Foust, 214 Wis. 2d 568, 571-72, 570 N.W.2d 905 (Ct. App. 1997).
. Our analysis begins with the implied consent law. The relevant statutory language is as follows:
(2) Implied consent. Any person who ... drives or operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol[.]
(3) Requested or required. (a) Upon arrest of a person for violation of s. 346.63(1) ... a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2).
Wis. Stat. § 343.305(2), (3)(a). Through the implied consent statute, the legislature authorized a law enforcement officer to request his or her choice among chemical tests of blood, breath or urine. State v. Krajewski, 2002 WI 97, , 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, Krajewski v. Wisconsin, 537 U.S. 1089 (2002). We presume that the legislature had good reasons for giving law enforcement officers the right to choose among chemical tests. Id.
. Bartol argues that law officers should be constrained to use the "least intrusive means" available when performing a chemical test in a first offense situation because the legislature has deemed a first offense to be civil rather than criminal. Relying on our decision in State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, we reject the argument raised by Bartol. Thorstad was subjected to a warrantless blood draw, to which he agreed after being informed of Wisconsin's implied consent law. Id., . Likewise, Bartol acknowledges that she consented to the blood test after Olson read her the Informing the Accused form. In Thorstad, we held that where the requirements under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), are met, there is no Fourth Amendment violation when the law enforcement officer chooses to obtain a blood sample under Wis. Stat. § 343.305(3)(a). Thorstad, 238 Wis. 2d 666, . Blood draws are permissible when the following four require
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