 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Mahler4/18/2000
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 Eau Claire County: PAUL J. LENZ, Judge. Reversed and cause remanded.
. The State appeals an order suppressing the test results from blood involuntarily drawn from Shane Mahler. Mahler was lawfully arrested for operating a motor vehicle while under the influence of intoxicants but refused to give a blood sample because he claimed he was afraid of needles and feared the possibility of contracting HIV. Instead, he offered to give a breath sample as an alternative test. Without considering the reasonableness of Mahler's objection to the blood sample, the circuit court decided that Mahler's request for an alternative test was reasonable. The court relied on its finding that the alternative test was available and that administering the alternative initial test would not have been overly burdensome to the State's prosecution efforts. Based on those considerations, the circuit court concluded that the blood draw was unreasonable.
. This court concludes, however, that a police officer is not required to consider a lawfully arrested suspect's request for an alternative test. Absent a reasonable objection, the officer has the authority to use a reasonable procedure in drawing blood. Because Mahler's objection for refusing a blood draw was not reasonable, the circuit court's order is reversed.
Background
. Eau Claire police officer James Southworth stopped Mahler on May 28, 1998, just after 2 a.m. Mahler does not contest that Southworth lawfully placed him under arrest for operating a motor vehicle while intoxicated and, accordingly, this court will not go into greater detail regarding the arrest.
. Southworth transported Mahler directly to a nearby hospital. At the hospital, Southworth asked Mahler if he would consent to a blood test. Mahler refused, explaining that he disliked needles and was afraid of HIV. Mahler offered to give a breath sample as a substitute test. Southworth nevertheless ordered Mahler's blood drawn. Mahler did not physically resist, and a laboratory technician drew his blood shortly after 2:30 a.m.
. At the suppression hearing, Southworth testified that the Eau Claire Police Department has a policy of obtaining blood tests from intoxicated drivers. He has personally witnessed approximately fifty blood draws for OWI-related offenses and has experienced no problems with the procedure. With regard to breath testing, however, Southworth explained that he has witnessed a variety of problems. Southworth also stated that in his opinion blood samples can be obtained faster and easier than breath samples. He was unsure at the time whether the necessary equipment and a certified operator were available for a breath test.
Discussion
. The State does not challenge any of the trial court's factual findings. 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 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 i
Page 1 2 3 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|