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State v. Thayer2/12/2002
that she had a right to refuse the test when in fact the police can require her to submit to a blood test even if she refuses. She claims the warning should have told her that she had no right to refuse the test. Hence, she reasons that she was denied due process and the blood test results must be suppressed.
. However, this is a prosecution for OWI. It is not a proceeding based on a refusal to take the requested breath test or for the imposition of statutory consequences for improperly refusing to take the requested test. The blood test was taken at the hospital without Thayer's consent. Therefore, the real issue is whether the involuntary blood test was taken as part of an unlawful search or seizure.
. In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court held that a state-compelled blood test following a person's arrest for OWI does not violate the Fourth, Fifth or Fourteenth Amendments to the United States Constitution. Thus, an arrestee's understanding or comprehension of the information required to be provided under Wis. Stat. § 343.305(4) is not needed to legitimize a knowing and informed waiver of constitutional rights, as is the case with Miranda warnings.
. From this premise, the court in State v. Zielke, 137 Wis. 2d 39, 51-52, 403 N.W.2d 427 (1987), concluded that evidence obtained without compliance with implied consent law procedures did not have to be suppressed. " othing in the statute or its history permits the conclusion that failure to comply with sec. 343.305(3)(a), Stats., prevents the admissibility of legally obtained chemical test evidence in the separate and distinct criminal prosecution for offenses involving intoxicated use of a vehicle." Id. at 51. "To so hold would give greater rights to an alleged drunk driver under the fourth amendment than those afforded any other criminal defendant." Id. at 51-52. Therefore, Zielke held that "if evidence is otherwise constitutionally obtained, there is nothing in the implied consent law which renders it inadmissible in a subsequent criminal prosecution." Id. at 52.
. Accordingly, we agree with the State. The claimed defects in the Informing the Accused form are irrelevant to the admissibility of the independently obtained blood test. In fact, Wis. Stat. § 343.305(3)(c) recognizes this. It specifically provides that the implied consent law does not prevent law enforcement from using other lawful means to obtain evidence. Moreover, blood may be drawn involuntarily, and without a warrant, from a person lawfully arrested for a drunk-driving related offense. State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993).
. Consequently, any challenge to the blood test taken independently of the implied consent law would have to be made under the Fourth Amendment as an unreasonable search or seizure. However, Thayer does not challenge the lawfulness of the blood draw on that basis. Thus, we agree with the circuit court's denial of Thayer's motion to suppress the blood test results.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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