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State v. Saich11/9/2000
APPEAL from a judgment of the circuit court for Dane County: STEVEN D. EBERT, Judge.
Affirmed.
. Michael Saich appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OMVWI). He claims the trial court erred in denying his motions to suppress evidence of the results of a blood test that was administered following his arrest. Because the issues Saich raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, (Wis. Oct. 17, 2000) we affirm the conviction.
BACKGROUND
. A Wisconsin State Patrol Trooper arrested Saich for OMVWI and transported him to have a sample of his blood withdrawn. The sample was analyzed at the State Laboratory of Hygiene, which reported an alcohol concentration of .150%. Saich moved to suppress evidence of the blood test result because the blood sample was taken without a warrant, and because it constituted an unreasonable seizure due to the availability of an alternative means of obtaining the evidence, specifically, a breath test.
. The trooper testified at the suppression hearing that he requested Saich give a blood sample because he believed that Saich was borderline over the legal limit and taking medication. He also acknowledged that he "would have access ... to the Intoxilyzer at the Dane County Sheriff's Office," which was approximately one mile closer than the hospital. The trial court concluded that the taking of the blood sample from Saich did not violate the Fourth Amendment because he had given implied consent to the testing of his blood, and because the United States Supreme Court has "repeatedly refused to declare that only the `least intrusive' search practicable can be reasonable under the Fourth Amendment." See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995). Subsequently, a jury found Saich guilty of OMVWI, and he now appeals, challenging the denial of the suppression motions.
ANALYSIS
. The question presented by this appeal is a purely legal one, specifically, whether a police officer violates the Fourth Amendment's prohibition against unreasonable searches and seizures when he or she obtains a blood sample from an OMVWI arrestee, even though the arresting officer could have obtained a breath test instead. We decide the issue de novo, owing no deference to the trial court's conclusion on the matter. See State v. Edgeberg, 188 Wis. 2d 339, 344-45, 524 N.W.2d 911 (Ct. App. 1994).
. Saich argues that "blood testing cannot be a police reflex." He claims that the holding in Nelson v. Irvine, 143 F.3d 1196 (9th Cir.), cert. denied, 525 U.S. 981 (1998), establishes that the operation of Wisconsin's implied consent law, which permits a police officer to designate whether a person arrested for OMVWI should be subjected to a blood test as opposed to a breath test, may result in unreasonable seizures under the Fourth Amendment. He points out that results of the testing of a driver's blood or breath for alcohol concentration have identical evidentiary impact. See Wis. Stat. § 885.235(1g). Thus, according to Saich, a police choice to draw blood instead of obtaining a breath sample is unreasonable because the blood test is more "intrusive."
. As Saich concedes in his reply brief, we have recently considered, and rejected, precisely the arguments he makes in this appeal. See State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, (Wis. Oct. 17, 2000). We concluded in Thorstad that, so long as the four requirements outlined by the supreme court in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), are met, there is no F
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