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County of Iowa v. Bidwell11/9/2000
APPEAL from an order of the circuit court for Iowa County: WILLIAM D. DYKE, Judge.
Affirmed.
. Stephen Bidwell appeals an order 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 Bidwell 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
. An Iowa County Sheriff's Deputy arrested Bidwell for OMVWI and transported him to a hospital to have a sample of his blood withdrawn.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 .169%. Bidwell 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.
. No evidentiary hearing was conducted, and the trial court denied the suppression motions after hearing arguments of counsel. The trial court concluded that the taking of the blood sample from Bidwell did not violate the Fourth Amendment because he had given implied consent to the testing of his blood, and because the taking of the sample was justified by exigent circumstances. Subsequently, Bidwell stipulated to a set of facts, based on which the trial court found him guilty. 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).
. Bidwell 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 Bidwell, a police choice to draw blood instead of obtaining a breath sample is unreasonable because the blood test is more "intrusive."
. We have recently considered, and rejected, precisely the arguments Bidwell 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 Fourth 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 .
. Bidwell asserts that Bohling is no longer good law because its view of "exige
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