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State v. Saich11/9/2000
ourth Amendment violation when the police obtain a blood sample from an OMVWI arrestee. We specifically rejected the Nelson v. City of Irvine analysis, concluding that we are bound by the supreme court's holding in Bohling. See Thorstad, 2000 WI App 199 at .
. Saich asserts that Bohling is distinguishable because, there, the defendant created his own exigency by refusing to submit to a proffered breath test. He argues that when the supreme court alluded to "the foregoing circumstances" when it set out the four requirements for the taking of warrantless blood samples (see footnote 6), the court was referring to a breath test refusal. See Bohling, 173 Wis. 2d at 533. We disagree. The cited language occurs in the third paragraph of the court's opinion. The only prior reference to the "circumstances" of the case occurs in the first paragraph:
The issue in this case is whether the fact that the percentage of alcohol in a person's blood stream rapidly diminishes after drinking stops alone constitutes a sufficient exigency under the Fourth Amendment to the United States Constitution and Article I Section 11 of the Wisconsin Constitution, to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication. Id. (emphasis added). These circumstances are also present in this case, just as they were in Thorstad, and thus, we affirm the trial court's denial of Saich's motions to suppress.
CONCLUSION
. Because we conclude that the disposition of this appeal is controlled by our holding in State v. Thorstad, we affirm the appealed judgment.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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