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State v. Willenkamp10/3/2000
APPEAL from a judgment and an order of the circuit court for Outagamie County: JAMES T. BAYORGEON, Judge.
Affirmed.
. Kyle Willenkamp appeals his judgment of conviction and an order denying his motion to suppress the results of a blood test taken in connection with his arrest for operating a motor vehicle while under the influence of an intoxicant in violation of Wis. Stat. § 346.63(1)(a). Willenkamp advances two arguments: (1) the implied consent law is unconstitutional as applied; and (2) a deputy's modification of the implied consent warning improperly coerced Willenkamp to submit to the blood test by threatening revocation for lack of compliance. We reject Willenkamp's arguments and affirm.
BACKGROUND
. Outagamie County Sheriff's Deputy Sarah Fauske stopped Willenkamp for suspected drunk driving . After failing field sobriety tests, Willenkamp was placed under arrest. The deputy read the required implied consent warning, with one modification. See Wis. Stat. § 343.305(4). In addition to stating that she wanted to test one or more samples of Willenkamp's breath, blood or urine, the deputy added the phrase "our policy is blood."
. Willenkamp indicated that he would take the blood test. He did not indicate any reservations about having blood taken nor did he ask for an alternative form of testing. The deputy transported Willenkamp to St. Elizabeth Hospital where blood was drawn. The test revealed an alcohol concentration of .231 %.
. Willenkamp was subsequently charged with operating a motor vehicle while under the influence of an intoxicant (second offense), contrary to Wis. Stat. § 346.63(1)(a), and operating a motor vehicle with a prohibited alcohol concentration (second offense), contrary to Wis. Stat. § 346.63(1)(b). He sought suppression of the blood test results by filing a motion challenging the manner in which his consent to testing had been obtained. The trial court denied his motion. Willenkamp then entered a plea of no contest and was found guilty. This appeal followed.
DISCUSSION
. When the material facts are undisputed, the reasonableness of a search is a question of constitutional law that we review independently. See State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992).
. In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court recognized that " he integrity of an individual's person is a cherished value of our society." Id. at 772. However, the Court held that withdrawing blood from an arrestee who had refused a breath test was reasonable. See id. at 770-71. The Court expressly reserved the question of whether the government could take blood when other tests were available or requested. See id. at 771.
. Using the Schmerber analysis, State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993), concluded that under certain circumstances the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw at the direction of a law enforcement officer. The court explained that a warrantless blood draw is permissible when:
(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime,
(2) there is a clear indication that the blood draw will produce evidence of intoxication,
(3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and
(4) the arrestee presents no reasonable objection to the blood draw. Id.
. Willenkamp argues that the sheriff's department policy of having blood as the
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