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Analysis of blood drawn without warrant before–but tested after–McNeely held admissible

State v. Andrew J. Kuster, 2014AP109-CR, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

This seemingly run-of-the-mill OWI appeal has an interesting little wrinkle.  The police conducted a warrantless blood draw on Kuster before SCOTUS decided Missouri v. McNeely, 569 U.S.__, 133 S.Ct. 1552 (2013), but they didn’t have the blood tested until after the  decision came out.  This sequence of events did not trouble the court of appeals because it views the seizure and subsequent analysis of a person’s blood as a single event.

Kuster challenged the police officer’s decision to stop him for erratic driving, revving the engine, and lingering at a stop sign. He also challenged the officer’s decision to prolong the stop based upon odor of intoxicants and his varying statements about whether he had been drinking.  Those arguments went nowhere in the trial court and court of appeals. Nor did his argument that police lacked probable cause to arrest him for OWI. After all, Kuster showed 4 signs of intoxication on the HGN test and two signs on two other field sobriety tests.

What remained then was a McNeely issue.  Kuster asserted various grounds for why the police could not, in good faith, rely on State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).  But he also argued that even if seizure of his blood was constitutional under Bohling, once SCOTUS issued McNeely the State needed a warrant to test (search) his blood for alcohol. The court of appeals disagreed:

This court held in State v. VanLaarhoven, 2001 WI App 275, ¶¶16-17, 248 Wis. 2d 881, 637 N.W.2d 411, that the seizure and subsequent analysis of a person’s blood was a single event for warrant requirement purposes. McNeely simply holds that police may no longer rely solely on the rapid dissipation of alcohol in the blood to establish the exigent circumstances necessary for a warrantless blood draw. See McNeely, 133 S. Ct. at 1556. As acknowledged by the circuit court in this case, that change rendered the warrantless draw of Kuster’s blood unconstitutional. That constitutional violation does not merit suppression, however, if the State “relied in good faith on clear and settled law that was only subsequently changed.” State v. Dearborn, 2010 WI 84, ¶34, 327 Wis. 2d 252, 786 N.W.2d 97. At the time that Kuster’s blood was seized, State v. Bohling, 173 Wis. 2d 529, 547-48, 494 N.W.2d 399 (1993), provided that police did not need a warrant to draw his blood to obtain possible evidence of intoxication. At the time that his blood was searched (i.e., tested), VanLaarhoven provided—and still provides—that the State does not need a separate warrant to conduct a test. Thus, suppression was not required as both the seizure and search of Kuster’s blood was done in good faith reliance on clear and settled law at the time. Dearborn, 327 Wis. 2d 252, ¶34.  Slip op. ¶17.

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