COURT OF APPEALS

DECISION

DATED AND FILED

 

November 9, 2000

 

Cornelia G. Clark

Clerk, Court of Appeals

of Wisconsin

 

NOTICE

 

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62.

 

 

No.    99-1601

 

STATE OF WISCONSIN                        IN COURT OF APPEALS

                        DISTRICT IV

 

 

County of Iowa,

 

                             Plaintiff-Respondent,

 

              v.

 

Stephen C. Bidwell,

 

                             Defendant-Appellant.

 

 

                        APPEAL from an order of the circuit court for Iowa County:  WILLIAM D. DYKE, Judge.  Affirmed.

            1            DEININGER, J.[1]   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

            2            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Iowa County Sheriff’s Deputy arrested Bidwell for OMVWI and transported him to a hospital to have a sample of his blood withdrawn.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. 

            3            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

            4            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).

            5            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.”[2] 

            6            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).[3]  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.[4]  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 ¶9.

            7            Bidwell asserts that Bohling is no longer good law because its view of “exigent circumstances” has been overruled in Richards v. Wisconsin, 520 U.S. 385 (1997), and Wilson v. Arkansas, 514 U.S. 927 (1995).  Bidwell interprets these cases to mean “exigency isn’t determined by the nature of the offense being investigated,” but rather by a case-by-case analysis of the totality of the circumstances.  We reject Bidwell’s argument. 

            8            Contrary to Bidwell’s contentions, the County has shown exigency in this case.  As we stated in Thorstad, “[t]he Bohling court specifically noted that … warrantless blood tests [are permitted] because the rapid dissipation of alcohol from the bloodstream constitutes exigent circumstances.”  Thorstad, 2000 WI App at ¶6 (citing Bohling, 173 Wis. 2d at 539-40).  This also applies in the present case.  In any event, Bidwell’s reliance on Richards is misplaced.  The United States Supreme Court there rejected the “overgeneralization” that, when executing a search warrant in a felony drug investigation, a police officer never needs to knock due to concerns for safety and preservation of evidence.  See Richards, 520 U.S. at 387-88, 393.  In contrast, we are dealing here with an undisputed statement, recognized by the United States Supreme Court, that alcohol rapidly dissipates from the bloodstream.  See Schmerber v. California, 384 U.S. 757, 770 (1966).  In sum, exigent circumstances existed, justifying a warrantless search.

CONCLUSION

            9            Because we conclude that the disposition of this appeal is controlled by our holding in State v. Thorstad, we affirm the appealed order.

                        By the Court.—Order affirmed.

                        This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4.

 

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (1997-98).  All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

[2]  Bidwell summarizes his argument as follows:  “Where, as here, there is an available means of gathering evidence of intoxication and prohibited alcohol concentration – breath testing – which has the same evidentiary weight and admissibility as blood test results, there can be no Constitutionally acceptable justification for requiring the suspect to submit to blood analysis.” 

[3]  After this appeal was submitted for decision, Bidwell moved to defer its consideration and disposition pending the release of this court’s opinion in State v. Thorstad.  Bidwell asserted in his motion that “[t]he legal issue presented in this appeal is identical to that presented by the State’s appeal in Thorstad.”  Further, Bidwell informed us that he “believes that a decision in the Thorstad appeal will be controlling precedent for that issue in this case and will, consequently, control the decision of this case.” 

[4]  The Bohling requirements are as follows:

(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.

 

State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993) (footnote omitted).