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COA holds exigency justified warrantless blood draw

State v. Yancy Kevin Dieter, 2020 WI App 49; case activity (including briefs)

Dieter called 911 at about 6 in the morning and reported that he’d crashed his car after drinking at a bar. The crash happened about four hours before Dieter made the call; he was badly injured and the car’s other occupant was killed.

A responding officer spoke to Dieter on the scene; he then drove to the local hospital while Dieter was being taken there by ambulance. At the hospital he requested Dieter’s consent for a blood draw and Dieter refused. The officer ordered the draw anyway without ever attempting to get a warrant. The circuit court suppressed the blood evidence, concluding that the officer had time to seek a warrant and thus that there was no exigency.

The court of appeals reverses. The opinion is fact-intensive; it revolves largely around the state’s argument that, given the passage of time since the crash, the officer had reason to think Dieter’s BAC might be approaching zero, at which point all evidentiary value would be lost. Per the court, that fact, the officer’s other activities on-scene, and his experience of how long it would take to get a warrant rendered his judgment of exigency reasonable. For a recent decision going the other way (and rejecting the state’s argument, also offered here, that an officer only has to think about getting a warrant once he’s asked for consent and been refused) see State v. Hay.

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