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State v. Powers10/19/2000
APPEAL from a judgment of the circuit court for Sauk County: VIRGINIA WOLFE, Judge. Affirmed.
. Timothy Powers 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 motion to suppress evidence of the results of a blood test that was administered following his arrest. Because the issues Powers raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, we affirm the conviction.
BACKGROUND
. A Sauk County Sheriff's Deputy arrested Powers for OMVWI and transported him to a hospital to have a sample of his blood withdrawn. The sample was analyzed at the State Laboratory of Hygiene, which reported an alcohol concentration of 0.213%. Powers 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 deputy testified at the suppression hearing that he requested Powers to give a blood sample solely because it was it was the "standard practice and policy" of his department "that any person who is charged with [OMVWI] second or above be taken for a blood draw." He also acknowledged that "an intoxilyzer machine ... was available to use that evening." The trial court concluded that the taking of the blood sample from Powers did not violate the Fourth Amendment because he had given implied and actual consent to the testing of his blood, and because " e did not express a preference for one type of test over another." The court also noted that the "fact that there would be a less intrusive measure available, I don't believe is controlling, since it is the agency's statutory right to set the primary test." Subsequently, Powers pleaded no contest to OMVWI, and he now appeals, challenging the denial of the suppression motion.
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).
. Powers argues that "implied consent" is a legal fiction, that his consent to a blood test was coerced, and thus, that he gave no valid consent to the drawing of his blood for purposes of the Fourth Amendment. He also asserts that "blood testing cannot be a police reflex." According to Powers, the holding in Nelson v. City of 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, in Powers's view, a police officer's choice to draw blood without a warrant, instead of obtaining a breath sample, constitutes an unreasonable search and seizure, and thus violates the Fourth Amendment.
. We have recently considered, and rejected, the arguments Powers makes in this appeal. See State v. Thorstad, 2
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