State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg
Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.
Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), State v. John C. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240 is met, ¶10:
a forcible warrantless blood draw does not violate the Fourth Amendment … (a)nd it makes no difference whether the suspect refuses the primary breath test and then submits to the blood test (Bohling) or the suspect submits to the primary blood test (Thorstad).
Unlike the defendants in those cases, Wodenjak asked for the alternative breath test first, but this factual distinction is insignificant; dissipation of blood alcohol constitutes an exigency that in and of itself justifies the draw under Bohling-Thorstad:
¶13. In summary, both the United States Supreme Court and the Wisconsin Supreme Court have put their constitutional stamp of approval on the warrantless taking of a blood draw subject to certain conditions and controls. Those conditions and controls do not require the police to consider alternate tests. Therefore, Wodenjak’s request for the less invasive breath test and the availability of such a test did not deprive Berg of his authority to obtain a blood sample from Wodenjak under Bohling.
(Court noting, id. n. 8, that the implied consent law, § 343.305(2), doesn’t provide the arrestee with the option of selecting the test; Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998) distinguished).