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State v. VanLaarhoven10/10/2001
As amended October 11, 2001.
APPEAL from a judgment of the circuit court for Winnebago County: BRUCE SCHMIDT, Judge. Affirmed.
. Paul J. VanLaarhoven appeals from a judgment of conviction for operating a motor while intoxicated, third offense, in violation of Wis. Stat. §§ 346.63(1)(a) and 346.65(2)(c). VanLaarhoven challenges the denial of his motion to suppress the results of a chemical test of his blood. Specifically, VanLaarhoven contends that the police were required to obtain a search warrant before submitting his blood sample for testing. We reject his argument and affirm the judgment of conviction.
. The facts are not in dispute. VanLaarhoven was arrested for operating a motor vehicle while intoxicated. He was advised under the Implied Consent Law and consented to submit to a chemical test of his blood. A blood sample was drawn from VanLaarhoven only after he provided two insufficient breath samples. Some days later, the sample was submitted to the Wisconsin State Hygiene Laboratory for analysis. The results established a blood alcohol concentration of 0.173%.
. VanLaarhoven filed a series of motions. Included in the blizzard of motions was a motion to suppress on the grounds that regardless of whether the initial seizure of the blood sample without a warrant was lawful, the subsequent analysis of the blood sample required a warrant because there were neither exceptions to the warrant requirement nor exigent circumstances that justified the warrantless analysis of his blood. The trial court rejected VanLaarhoven's argument that the police could not conduct a search of his blood sample without first obtaining a warrant. VanLaarhoven then pled no contest, and he appeals from the judgment of conviction.
. VanLaarhoven suggests that his blood sample, once obtained, cannot be analyzed for evidentiary purposes without obtaining a second search warrant. Whether a search warrant is required before a blood draw was recently addressed in State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, review denied, 2000 WI 121, 239 Wis. 2d 310, 619 N.W.2d 93 (Wis. Oct 17, 2000) (No. 99-1765-CR), cert. denied, Thorstad v. Wisconsin, 121 S. Ct. 1099 (U.S. Wis. Feb. 20, 2001) (No. 00-1145). There, citing to Schmerber v. California, 384 U.S. 757, 769-70 (1966), we acknowledged that the seizure of an Implied Consent Law blood sample falls under the "exigent circumstances" exception to the warrant requirement. Thorstad, 2000 WI App 199 at (" ecause the human body rapidly eliminates alcohol from the system, `the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.'"). However, VanLaarhoven contends that the exigency is over once the blood sample is obtained and the authority of the police to act further, without a judicially issued warrant, is terminated.
. The issue VanLaarhoven presents on appeal requires the application of the constitutional principles of search and seizure. The application of constitutional principles to the undisputed facts is a question of law that we decide without deference to the circuit court's decision. State v. Foust, 214 Wis. 2d 568, 571-72, 570 N.W.2d 905 (Ct. App. 1997). Despite our de novo standard of review, we nonetheless value the trial court's decision on the issues. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).
. Before addressing VanLaarhoven's arguments, it is necessary to briefly review search and seizure principles and Wisconsin's Implied Consent Law. Both the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution forbid unreasonable sear
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