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State v. Wodenjak8/1/2001
APPEAL from a judgment of the circuit court for Winnebago County: WILLIAM H. CARVER, Judge.
Affirmed.
. Robert W. Wodenjak appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI) pursuant to Wis. Stat. § 346.63(1)(a) (1999-2000). Wodenjak was convicted as a fourth-time repeat offender pursuant to § 346.63(2)(d). Wodenjak challenges the trial court's denial of his motion to suppress the results of a blood test. Wodenjak argues that there was no exigency under the Fourth Amendment permitting the police to perform a blood test because he had previously offered to submit to a breath test. We reject Wodenjak's argument and affirm the judgment of conviction.
FACTS
. The underlying facts are not in dispute. Wisconsin State Trooper Timothy Berg arrested Wodenjak for OWI on March 7, 1999, in Winnebago county. Berg had access to a functioning Intoxilyzer machine at the time of the arrest. However, state patrol policy provided that the primary test for repeat OWI offenders was a blood test. Therefore, Berg transported Wodenjak to a local hospital for a blood test. At the hospital, Berg advised Wodenjak under the Implied Consent Law, Wis. Stat. § 343.305(4), and asked Wodenjak if he would submit to a blood test. In response, Wodenjak asked if he could take a breath test. Berg rejected this request, stating that the blood test was the primary test for repeat offenders. Wodenjak then refused the blood test and Berg noted the refusal on the implied consent form.
. Berg then advised Wodenjak that, despite the refusal, state patrol policy required a blood sample from a repeat offender with or without the offender's consent. Wodenjak then changed his mind and submitted to the blood test.
. The State filed a criminal complaint charging Wodenjak with OWI as a repeat offender. Wodenjak followed with a motion to dismiss arguing that the blood test procedure was unreasonable under the Fourth Amendment because he had volunteered to submit to the less invasive breath test procedure. The trial court denied the motion. Thereafter Wodenjak entered a no contest plea to the OWI charge, and he appeals from the ensuing judgment of conviction.
DISCUSSION
. On appeal, Wodenjak renews his trial court argument that the taking of his blood was unreasonable under the Fourth Amendment because he was willing to submit to the less invasive breath test procedure. The question of whether the reasonableness standard of the Fourth Amendment is satisfied presents a question of constitutional law that we review de novo. State v. Thorstad, 2000 WI App 199, , 238 Wis. 2d 666, 618 N.W.2d 240, review denied, 239 Wis. 2d 310, 619 N.W.2d 93, 2000 WI 121 (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).
. Two Wisconsin cases are relevant to the appellate issue. The first, and most important, is State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). There, the police informed Bohling under the Implied Consent Law and asked him to submit to a breath test. Id. at 534. Bohling refused. Id. The police then informed Bohling that, despite his refusal, they would seek a blood sample and that force, if necessary, would be used. Id. at 534-35. As a result, Bohling submitted to the blood test. Id. By motion to suppress, Bohling challenged the blood test on Fourth Amendment grounds. Id. at 533. Bohling contended that the test was unreasonable because there were no exigent circumstances justifying the warrantless draw of his blood. Id.
. The supreme court rejected Bohling's argument. Id. at 533-34. The court's opinion
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