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State v. Grawey6/27/2002
yzer' test petitioner refused .... We need not decide whether such wishes would have to be respected." Id. at 771. In Wisconsin, dissipation of alcohol from a person's bloodstream constitutes exigent circumstances justifying a warrantless search and is reasonable under the Fourth Amendment if four criteria are met. Bohling, 173 Wis. 2d at 533-34. The fourth criterion is at issue here: "the arrestee presents no reasonable objection to the blood draw." Id. at 534.
. The reasonableness of a search or seizure under the Fourth Amendment is judged using an objective standard. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Grawey's testimony is unclear regarding what she told police officers of the reason for her refusal, and the court made no finding on this. For purposes of this discussion, we will assume she told the officers that she was afraid of needles because of her prior experience with a blood draw. Grawey contends that because of her prior bad experience with a blood draw, her refusal was reasonable. We disagree.
. The court in Schmerber expressly did not decide whether a wish for another type of test would have to be respected because of a person's fear of a blood draw; however, the language used clearly contemplates that if such an exception exists, it would be in very limited circumstances: "one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing." Schmerber, 384 U.S. at 771 (emphasis added). State v. Krause, 168 Wis. 2d 578, 588, 484 N.W.2d 347 (Ct. App. 1992), mentions some of the factors that bear on whether an objection based on fear might be considered a reasonable objection. There we held that isolated comments that the defendant "didn't believe in needles" and "d n't want AIDS," coupled with no evidence that indicated he preferred an alternative test or that the police refused a reasonable request for an alternative test, made it "reasonable to assume that refusal and belligerence were born of his intoxication, rather than arising from a genuine fear or health concern." Id. Of course, the facts in this case are different from Krause-there is no evidence Grawey was belligerent and she did, on the facts we are assuming, tell the officer of her prior bad experience with needles as an explanation for her fear. However, Krause is instructive in that we there considered it relevant whether Krause asked for an alternative test.
. When an officer is faced with an objection to a blood draw based on a fear of needles-even when supported by the prior incident Grawey experienced-the officer has very little basis for evaluating the reasonableness of that objection. How is the officer to know whether the objection is based on a genuine and intense fear, or on a very common preference not to have one's skin pierced with a needle, or on a desire not to permit the gathering of evidence of intoxication? If, however, the person objecting also offers to take an alternative test, the officer at least has an objective basis for eliminating the possibility that the person's refusal is based on a desire to prevent gathering evidence of intoxication. We also observe that Schmerber speaks in terms of whether "such wishes" would have to be respected-that is, the preference for another test. Schmerber, 384 U.S. at 771. Schmerber thus frames the possible exceptions not in terms of blanket refusals, but in terms of a preference for other tests.
. In this case Grawey told the officers she was afraid of needles because of a prior bad experience, but did not offer to take an alternative test. We conclude that an officer, acting reasonably, could decide that her objection was therefore not reasonable. Accordingly, the trial cou
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