The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.
¶10 As our supreme court noted in Tullberg, and the State points out in this case, “[i]f a blood sample is taken more than three hours after an automobile accident, the blood draw evidence is admissible only if an expert testifies to its accuracy.” Tullberg, 359 Wis. 2d 421, ¶19 n.7; see WIS. STAT. § 885.235(1g), (3). Thus, procuring a sample from Dalton beyond the three-hour time frame would have significantly undermined the efficacy of the search, in that the test result from the procured blood sample would have lost its otherwise “automatic admissibility.” See State v. Piddington, 2001 WI 24, ¶34, 241 Wis. 2d 754, 623 N.W.2d 528 (blood test result automatically admissible pursuant to § 885.235); State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987) (State entitled to “automatic admissibility” of results under implied consent law where it complies with the requirements of WIS. STAT. § 343.305). A law enforcement officer need not wait for a warrant to secure a blood sample in a “drunk-driving investigation” if one cannot be “reasonably obtain[ed]” prior to the expiration of this three hour time limit. See McNeely, 133 S. Ct. at 1561 (“In those drunk driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”). The complaint, which was filed a month and a half after the date on the arresting deputy’s report and was sworn to by a different member of the sheriff’s department, in most respects closely tracks the arresting deputy’s report; however, the member added in the complaint that “due to the distance and time in obtaining a search warrant, [the arresting deputy] proceeded without a search warrant” in procuring a blood sample.
¶11 On its face, Dalton’s motion alleges facts indicating the blood draw was performed without a warrant and does not allege facts clearly demonstrating, nor does the record otherwise clearly show, that exigent circumstances existed.7 According to the arresting deputy’s report, it may well be that the State would not have been able to meet its burden at a suppression hearing of showing by clear and convincing evidence that exigent circumstances existed to justify procuring the blood sample from Dalton without a warrant. It appears that at the time the arresting deputy ordered the nurse to procure a blood sample, there was approximately one hour left before “automatic admissibility” of the sample results would be lost. Further, it also appears from the report that there was at least one other deputy who had been assisting with the crash investigation who may have been able to assist with timely procurement of a warrant. In our modern age of technology, law enforcement may have been able to “reasonably obtain” a warrant prior to expiration of the three-hour time limit for automatic admissibility of the blood test results. See id. at 1562-63 (“[T]echnological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency.”).
Note that if trial counsel had filed the suppression motion, the State would have born the burden of showing the existence of exigent circumstances, and the circuit court would have had to consider the officer’s ability to use technological advancements to expedite warrant approval. ¶12.
This decision makes several additonal helpful points: First, penalizing a defendant for refusing to submit to a warrantless blood draw violates the 4th Amendment. ¶14 (citing Birchfield v. North Dakota, 579 U.S. __ at 1 (2016)). Second, the State cannot submit a postconviction affidavit showing that exigent circumstances existed at the time of the blood draw in order to prevent the defendant from obtaining a hearing on his ineffective assistance of trial counsel claim. ¶11 n.7. Third, trial counsel’s belief that a motion to suppression would have failed does not automatically establish that his performance was satisfactory. ¶13 n.8.