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City of Fountain City v. Wilson5/2/2000
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
APPEAL from an order of the circuit court for Buffalo County: JOHN A. DAMON, Judge. Reversed and cause remanded.
. The City of Fountain City appeals an order suppressing the test results for blood drawn from Lance Wilson. Wilson was lawfully arrested for operating a motor vehicle while under the influence of intoxicants, but initially refused to give a blood sample as the primary requested test because he was afraid of needles. Instead, he offered to give a breath or urine sample as the primary test. After being advised that he had to take the blood test or his license would be revoked, he agreed to take the blood test while continuing to express his fear about the usage of needles. A county nurse at the police station then withdrew a sample of Wilson's blood, which tested at .159%.
. Without considering the reasonableness of Wilson's objection to the blood sample, the circuit court concluded that because there were no exigent circumstances to justify the taking of Wilson's blood, the blood test results must be suppressed. The order is reversed.
. Wilson argues that the blood test administered after his arrest violated the Fourth Amendment to the United States Constitution. He contends that the test was an unreasonable seizure of evidence since the City could have used a less intrusive breath or urine test. He also asserts that the warrantless blood draw was not justified by exigent circumstances because, in his case, a breath or urine test would have provided the same evidence.
. The City and Wilson stipulated to the underlying facts. When the material facts are undisputed, whether a search is permissible under the Fourth Amendment is a question of law this court reviews without deference to the circuit court. See State v. Seibel, 163 Wis. 2d 164, 171-72, 471 N.W.2d 226 (1991).
. In his challenge to the blood test, Wilson relies on Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998). In that case, the ninth circuit held that when an arrestee consents to a breath or urine test, and such tests are available, to require a blood test violates the Fourth Amendment because it is unreasonable and not justified by exigent circumstances. See id. at 1207. However, the Nelson court addressed California's implied consent law, which, at the time, allowed the arrestee to choose between a blood, breath or urine test. See id. at 1201. In contrast, Wisconsin's implied consent law allows the law enforcement agency to designate which test will be administered first. See Wis. Stat. § 343.305(2). Thus, the arresting officer's decision to administer a blood test on Wilson was justified by statute.
. In State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), our supreme court held that, as long as certain elements are met, the State is entitled to withdraw a sample of an intoxicated driver's blood regardless of whether the driver voluntarily submits to the testing. Bohling's analysis began with the United States Supreme Court's decision in Schmerber v. California, 384 U.S. 757 (1966). Although there the Court recognized that " he integrity of an individual's person is a cherished value of our society," Schmerber, 384 U.S. at 772, it held that withdrawing blood from an arrestee who had refused a breath test was reasonable. See id. at 770-71.
. Using the Schmerber analysis, the Bohling court concluded that under certain circumstances the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a permissible warrantless blood draw at the
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