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State v. Grawey6/27/2002
. Dawn Grawey appeals a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense, in violation of Wis. Stat. § 346.63(1), and the circuit court's order denying her motion to reconsider its decision not to suppress evidence of her refusal to submit to a blood draw. The issue on appeal is whether Grawey's refusal of a blood draw was reasonable under State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d 399 (1993). We hold her refusal was not reasonable. Accordingly, we affirm.
BACKGROUND
. Grawey moved to suppress evidence of her refusal to submit to a blood draw, asserting that her refusal was justified because a warrantless seizure of her blood would be an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution. Grawey testified as follows at the hearing on her motion to suppress. On March 6, 1999, she was arrested by Avoca Police Officer Travis Wiegel for operation of a motor vehicle while under the influence of an intoxicant. After Grawey arrived at the Iowa County Sheriff's Department, she was asked to submit to a blood draw, which she refused. Officer Wiegel questioned Grawey, and there was another officer present as well. Grawey testified that she refused to submit to the blood draw because the last time she submitted to a draw in conjunction with a July 1998 OWI arrest, the needle was "erroneously removed" from her arm, leaving her bleeding, her arm "gaping open," and a scar on the arm. When asked what was going through her mind when she made the decision to refuse the blood draw, Grawey replied, "Fear, fear of this happening again, fear of needles now." On cross-examination Grawey stated she did not recall whether she told the officer that she had suffered the previous experience with a blood draw. On redirect, however, Grawey testified that she remembered having mentioned the previous experience, but said she did not remember whether she told Officer Wiegel or the other officer present.
. The court denied the motion, concluding that Grawey's refusal to submit to the test was admissible as consciousness of guilt. Following a trial on stipulated facts to the court, Grawey was convicted of OWI. Grawey filed a post-conviction motion challenging the court's ruling admitting evidence of her refusal. She contended the court did not have an adequate opportunity to rule on whether Grawey's refusal was reasonable. The court denied the motion stating that it had decided the refusal was not reasonable.
DISCUSSION
. On appeal Grawey renews her argument that the Fourth Amendment applies to her refusal to submit to a blood test even though her blood was never actually seized. According to Grawey, a driver's refusal to submit to a blood test cannot be used in court where, if blood had actually been drawn in spite of that refusal, the test results would have been inadmissible because the draw was an unconstitutional seizure. We will assume without deciding that this premise is correct.
. The Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution guarantee the right "against unreasonable searches and seizures." Warrantless searches are generally unreasonable. See Schmerber v. California, 384 U.S. 757, 770 (1966). In Schmerber, the U.S. Supreme Court held that the warrantless taking of blood over the defendant's objection did not violate the defendant's Fourth Amendment rights. Id. at 772. The Court also stated, "Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the `Breathal
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