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Police had probable cause to arrest, and exigent circumstances to conduct warrantless blood draw

State v. Kent W. Hubbard, 2014AP738-CR, District 2, 8/13/14 (1-judge; ineligible for publication); case activity

The totality of the circumstances established probable cause to arrest Hubbard for operating with a detectable level of restricted controlled substance. Further, the warrantless blood draw was justified under the exigent circumstances test articulated in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), because there was evidence that Hubbard had used marijuana and alcohol, and evidence regarding the latter would be lost if the police took time to get a warrant.

Hubbard was stopped for an equipment violation. He had red, bloodshot eyes, admitted he’d had two shots and smoked “weed” earlier, and performed poorly on field sobriety tests. A consensual search of his car discovered evidence of marijuana use. (¶2). Despite the lack of erratic driving, the absence of an odor of alcohol or marijuana, and a .02 PBT result, the evidence supported a reasonable belief that Hubbard had a detectable amount of a restricted controlled substance in his blood:

7        …. The most persuasive evidence known to the officer was Hubbard’s own admission that he smoked marijuana (“weed”) within nine hours of driving. The officer’s training instructed that this would be recent enough for marijuana to be detected in his blood. Hubbard’s red, bloodshot eyes and the officer’s experience also told him that Hubbard might have smoked marijuana more recently than he admitted. The officer also discovered marijuana in Hubbard’s car along with two pipes that could be used to smoke the drug.

As to the blood draw, under the circumstances it was reasonable to believe the delay in procuring a warrant would risk destruction of evidence of alcohol in Hubbard’s blood:

12      When Hubbard was arrested for having a detectable amount of a restricted controlled substance in his blood, the particular facts at the time of his arrest also gave rise to reasonable suspicion that Hubbard operated his vehicle while under the influence of a combination of intoxicating and controlled substances. Hubbard was stopped early in the morning and admitted to drinking alcohol, and a PBT result indicated that some alcohol was in his system. Hubbard also admitted to smoking marijuana and his red, bloodshot eyes indicated that he might have been operating a motor vehicle while under the influence of alcohol, controlled substances, or a combination of substances. Additionally, prior to the blood test, the officer learned that Hubbard had a previous conviction for operating under the influence, see State v. Goss, 2011 WI 104, ¶22 & n.19, 338 Wis. 2d 72, 806 N.W.2d 918, and that he was a recovering drug addict. Under the circumstances known to the officer at the time of the blood draw, a reasonable police officer would have had a “particularized and objective basis” to believe that a blood test would uncover evidence of alcohol and/or controlled substances in Hubbard’s blood and that, at least in the case of alcohol, this evidence would be lost if the officer delayed a test to wait for a warrant. 

Bohling‘s per se rule that the dissipation of alcohol alone provides a sufficient exigency was abrogated by Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1556 (2013). But Hubbard didn’t argue that McNeely mandates suppression of the blood test results—an argument precluded, in any event, by State v. Reese, 2014 WI App 27, ¶¶18, 22, 353 Wis. 2d 266, 844 N.W.2d 396. (¶11 n.4). Instead, Hubbard essentially argued the Bohling exigency test wasn’t met here because of the slower dissipation of THC compared to alcohol. Hubbard’s alcohol use dooms that argument, but it will obviously be stronger in a case where the evidence shows only drug use.

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