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State v. Lund10/28/2004
A Rock County sheriff's deputy arrested Lund after observing him driving his vehicle erratically on the wrong side of the road. The deputy pulled him over and observed that his eyes were bloodshot and his speech slurred. When asked if he had been drinking, Lund replied that he had consumed "six to seven beers." The deputy administered field sobriety tests, on which Lund performed poorly. The deputy then arrested Lund for OMVWI and took him to the Edgerton Police Department for a breath test.
. The deputy issued Lund a citation for OMVWI, second offense, and read him the Informing the Accused form, which told Lund, among other things, that his drivers license would be revoked if he refused to take a requested test. Lund agreed to take a breath test and one was administered. The results were invalid, however, due to residual alcohol in Lund's mouth. The deputy then took Lund to the Rock County Sheriff's Department, where he again read Lund the Informing the Accused form and asked him if he would submit to an evidentiary chemical test of his blood. Lund agreed. The duty nurse at the Rock County jail, a licensed practical nurse (LPN), drew a sample of Lund's blood that was subsequently tested, revealing a blood-alcohol level of .222 g/100 mL.
. The State charged Lund with OMVWI, second offense, and the companion charge of operating a motor vehicle with a prohibited alcohol concentration (PAC). Lund moved to suppress the blood test results on the grounds that the person who administered the blood test was not authorized to do so under the implied consent law, Wis. Stat. § 343.305(5)(b). He also challenged it on Fourth Amendment grounds, asserting that exigent circumstances did not exist and the sample was not obtained in a reasonable manner. The trial court accepted Lund's arguments and ordered the test result suppressed. Specifically, the court concluded the State had not complied with § 343.305(5)(b), Lund had not voluntarily consented to the blood test, and the State had not established that exigent circumstances existed or that the blood draw had been done in a reasonable manner. The State appeals. See Wis. Stat. § 974.05(1)(d)2. (providing that the State may appeal an order suppressing evidence).
ANALYSIS
. Whether the procedures employed in obtaining a blood sample from someone suspected of OMVWI meet the requirements of the implied consent law involves the application of a statute to the facts of record and, thus, presents a question of law that we decide de novo. State v. Penzkofer, 184 Wis. 2d 262, 264, 516 N.W.2d 774 (Ct. App. 1994). By the same token, whether the blood evidence was obtained in violation of the Fourth Amendment is a question of constitutional law that we decide independently of the trial court. See State v. Thorstad, 2000 WI App 199, , 238 Wis. 2d 666, 618 N.W.2d 240. To the extent that either of these questions involve factual findings made by the trial court, we must accept those findings unless they are clearly erroneous. Village of Little Chute v. Walitalo, 2002 WI App 211, , 256 Wis. 2d 1032, 650 N.W.2d 891.*fn2
. We agree with the trial court that the blood test in this case did not meet the requirements of the implied consent law. Wisconsin Stat. § 343.305(5)(b) provides as follows:
Blood may be withdrawn from the person arrested for violation of s. 346.63 (1) ... to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician
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