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Reasonable objection to blood draw must be articulated at time of blood draw

State v. James Michael Warren, 2014AP792-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), which was the law at the time of Warren’s arrest, a person must present their reasonable objection and the basis for the objection at the time of the blood draw, and failure to do so means the person can’t raise it later in the case.

Bohling173 Wis. 2d at 533-34, held that a warrantless blood sample, taken at the direction of law enforcement, would be permissible under the following conditions:

(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Warren argues that he could raise his reasonable objection to the blood draw for the first time in a suppression motion, but the court disagrees:

¶10      We agree with the State that Bohling allowed a warrantless blood draw if law enforcement satisfied the first three conditions at the time of the draw, so long as “the arrestee present[ed] no reasonable objection to the blood draw.” Bohling, 173 Wis. 2d at 534. Bohling did not require police officers to ask arrestees whether they had any objections to blood testing. It required only that a warrantless, nonconsensual blood draw not occur if the arrestee offered a reasonable objection to it. We are persuaded of this conclusion by the fourth condition’s use of “the arrestee” as its subject and “presents” as its verb. The court in Bohling could have mandated that an officer ascertain whether an arrestee had a reasonable objection to a blood draw before he or she could order one; it did not do so.

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¶12      In addition, we observe the fourth Bohling condition—along with the rest of the conditions—is written in the present tense. This wording strongly suggests an arrestee must “present” his or her reasonable objection at or before the time of the testing. Indeed, the third and fourth prongs of the Bohling test are both concerned with reasonableness, and we consider it illogical to require examination of the reasonableness of an officer’s decision based on information not made available to the officer at the time he or she ordered the blood draw. See Bohling, 173 Wis. 2d at 533-34. Further, Bohling refers to an arrestee presenting a reasonable objection, rather than a defendant, as one would be at the time of a suppression hearing. In addition, Bohling itself states that the determination of whether exigent circumstances exist so as to be excepted from the warrant requirement rests upon law enforcement’s knowledge at the time: “whether a police officer[,] under … circumstances known to the officer at the time[,] reasonably believes that delay in procuring a warrant would … risk destruction of evidence….” Id. at 538 (citation omitted) (omissions in original). In short, both Bohling generally and its four conditions for a permissible warrantless blood draw contemplated a determination of exigency based on what is known at the time of the blood draw….

¶13      In this case, Warren had a reasonable objection to having his blood drawn. However, the onus is on an arrestee to explain the basis for his or her objection at the time of the blood draw, and Warren cannot overcome, after the fact, his failure to do so. Law enforcement officers must be able to rely on their knowledge at the time they are acting. The only objection Warren contemporaneously raised was not a reasonable basis to refuse consent. In addition, despite Warren’s argument otherwise, a suppression hearing still is necessary to assess the validity and actuality of the arrestee’s alleged objection, rather than as the forum to present such an objection in the first instance.

Bohling‘s primary holding—that dissipation of alcohol from the blood is a per se exigency justifying a warrentless blood draw—was abrogated by Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013); see State v. Kennedy, 2014 WI 132, ¶¶25-32. The fourth prong of the test should, however, still apply to warrantless blood draws that are justified by exigency as determined under the totality of the circumstances.

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