COURT OF APPEALS

DECISION

DATED AND FILED

 

July 18, 2002

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

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. 

 

 

 

 

Appeal No. 

02-0048

 

Cir. Ct. Nos.  00-TR-12110

00-TR-12111

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT IV

 

 

 

 

County of Dane,

 

                        Plaintiff-Respondent,

 

              v.

 

Todd M. Oimoen,

 

                        Defendant-Appellant.

 

 

 

 

            APPEAL from a judgment of the circuit court for Dane County:  robert de chambeau, Judge.  Affirmed. 

1                        DYKMAN, J.[1]   Todd Oimoen appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, in violation of Wis. Stat. § 346.63(1)(a).  Oimoen raises two issues regarding a blood draw that was conducted after his arrest:  (1) that the warrantless blood draw was unconstitutional because the police could have obtained evidence through a less-invasive breath test; and (2) even if the blood draw was lawful, police required a warrant to analyze the blood because no exigent circumstances existed after the blood was seized.

2                        Oimoen concedes that the first issue was resolved by State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, but he suggests that Thorstad could be undermined by a case pending before the supreme court at the time of briefing, State v. Krajewski, No. 99-3165-CR.  Krajewski has now been decided.  See 2002 WI 97.  Rather than overrule Thorstad, however, Krajewski extended its holding, concluding that warrantless blood draws were constitutionally permissible even when the suspect offers to take an alternative test.  Id. at ¶3.  Because Oimoen does not contend that he was “unable to reasonably submit to a blood test,” Krajewski forecloses Oimoen’s first argument.  Id. at ¶52.

3                        With regard to the second issue, Oimoen also concedes that State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, has decided that issue against him.  We are bound by published decisions of the court of appeals.  See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).  We therefore affirm the judgment of conviction.

            By the Court.—Judgment affirmed.

            Not recommended for publication in the official reports.  See Wis. Stat. Rule 809.23(1)(b)4.

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(g) (1999-2000).  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.