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State v. Edwards10/19/2000
APPEAL from a judgment of the circuit court for Dane County: SARAH B. O'BRIEN, Judge. Affirmed.
. Richard Edwards 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 Edwards 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 A City of Sun Prairie police officer arrested Edwards for OMVWI and transported him to have a sample of his blood withdrawn by a "trained medical professional." The sample was analyzed at the State Laboratory of Hygiene, which reported an alcohol concentration of 0.213%. Edwards 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 motion after hearing arguments of counsel. The trial court concluded that the taking of the blood sample from Edwards 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, Edwards 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).
. Edwards argues that "blood testing cannot be a police reflex." He claims that 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, according to Edwards, 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 Edwards makes in this appeal. See State v. Thorstad, 2000 WI App 199, No. 99-1765-CR. 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 .
. Edwards asserts that Bohling is distinguishable because, there, the defendant "created his own `exigency'" by refusing to submit to a proffered breath test. Edwards also argue
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