COURT OF APPEALS
DECISION
DATED AND FILED
April 4, 2001
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.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
State
of Wisconsin,
Plaintiff-Respondent,
v.
David
K. Osman,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Winnebago County: William h. carver, Judge. Affirmed.
¶1 BROWN, P.J.[1] David K. Osman appeals a conviction for operating a vehicle while intoxicated, third offense. He argues that the trial court erred in denying his motion to suppress a blood test result. Because the issue Osman raised at his motion to suppress and again on appeal is governed by State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, review denied, 239 Wis. 2d 310, 619 N.W.2d 93 (Wis. Oct. 17, 2000) (No. 99-1765-CR), this court affirms the judgment of conviction.
¶2 The pertinent facts are that Osman was arrested for driving while intoxicated and was driven to the hospital following his arrest. He gave permission for a blood draw and the results showed that he had a prohibited concentration of alcohol in his system. At the motion to suppress, Osman posited that since other alternative tests were available besides a blood draw and because these other two tests are far less intrusive than a blood draw, exigent circumstances justifying a warrantless drawing of his blood did not exist. Osman theorized that the blood test therefore amounted to an unreasonable search under the Fourth Amendment. The trial court rejected his theory. On appeal, Osman acknowledges that his theory of relief was rejected in Thorstad and that we are bound by Thorstad. However, he nonetheless wishes to raise this issue so as to preserve it pending a Petition for Writ of Certiorari in the United States Supreme Court.
¶3 As acknowledged by Osman, the Thorstad court squarely confronted the same issue raised by Osman and rejected it. The opinion is published and this court is bound by it. Therefore, we affirm.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.