Hay was pulled over in the early morning and blew a .032 on the PBT. He had several drunk-driving priors, so it would be illegal for him to drive with a BAC over .02. The officer never sought a warrant; instead he searched the car (though another officer on-scene could have done that), waited for another officer to show up to “sit” with the vehicle until a tow truck came, then headed to the hospital with Hay. Only then–about an hour after the initial stop–did the officer ask Hay whether he’d agree to a blood test. When Hay refused, the officer, in consultation with an ADA, decided the situation was exigent. The thinking was that given the low PBT result, further passage of time might reduce Hay’s BAC to .00 thus and make a blood test useless as evidence. So, the officer ordered a warrantless blood draw. Because there was only one phlebotomist in the hospital, that draw didn’t actually happen until 35 minutes had passed. Hay had no alcohol in his blood, but there was cocaine, so he was charged with the “restricted controlled substance” variety of OWI. He moved for suppression, the circuit court granted it, and the state appealed.
The court of appeals affirms, and issues an important holding: it rejects the state’s argument that exigency is assessed as of the moment a motorist refuses to consent to a test.
Significantly, the State contends that whether exigent circumstances exist to justify drawing a suspect’s blood without a warrant should be analyzed only from the moment a defendant refuses to submit to a blood draw and not before. The State cites no case law in support of this position but relies upon a driver’s implied consent under WIS. STAT. § 343.305(2), (3)(a), stating that “Hay, like all drivers, impliedly consented to an officer’s request for a blood sample when the officer had probable cause that he had operated with a prohibited alcohol concentration … in his blood.” The State maintains that “[a] reasonable officer would believe that Hay would want to avoid revocation and other penalties for refusal” and, thus, would not withdraw his consent. This “reasonable belief” is seemingly not specific to Hay and, of course, would in every case justify an officer waiting until after a suspect refuses to submit to a blood draw before the officer considers beginning the effort to secure a warrant. Because significant time often passes between the time of arrest and the time of refusal, which frequently occurs, as in this case, after arrival at the health care facility, by the time of refusal, it may be too late to secure a timely warrant, yet had the officer begun the warrant process earlier, a response on the warrant application may well have been received from a judge before a blood sample could be drawn. So, in short, the rule sought by the State—that an officer never needs to consider beginning the warrant application process unless and until a suspect refuses a blood draw—will in some cases create exigent circumstances that would not have existed had the process been started earlier. As we have held, however, “the government cannot justify a search on the basis of exigent circumstances that are of the law enforcement officers’ own making.” State v. Guard, 2012 WI App 8, ¶30, 338 Wis. 2d 385, 808 N.W.2d 718 (2011) (citation omitted).
(¶14). The court goes on to point out that several binding cases, including Missouri v. McNeely, 569 U.S. 141 (2013), have analyzed exigency by reference to factors that would necessarily, or at least typically, precede a request to consent to a blood draw.
From there, it’s a typical fact-focused inquiry aptly summed up by the circuit court’s observation that “this case is marked by the lack of complication and absence of chaos.” (¶19). The state presented little to no evidence tending to show that seeking a warrant would have interfered with any other pressing needs, so there’s no exigency and the blood test results were properly suppressed.