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Warrantless, forced blood draw was reasonable

State v. Keith A. Wall, 2017AP2367-CR, District 4, 5/17/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Wall sought the suppression of the results of the test of his blood, which showed he had a BAC of 0.178 after his arrest for OWI. He argues the blood was seized unlawfully because police didn’t have a warrant and they used excessive force to draw the blood. The court of appeals rejects both claims.

The challenge to the lack of a warrant fails because of timing: Wall’s blood was taken in March 2013, under the rule adopted in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), which allowed warrantless seizures of blood in OWI cases on the theory the dissipation of alcohol was a per se exigent circumstance. Bohling was, of course, effectively overruled by Missouri v. McNeely, 569 U.S. 141 (2013), but that happened about a month after Wall’s blood was taken. Because the police who took Wall’s blood were acting in good-faith reliance on Bohling, the seizure was lawful. (¶¶8-11).

As for the challenge to the reasonableness of the blood draw due to the use of excessive force, Wall’s refusal to consent and “increasing agitation” led the arresting officer to call for backup and get a restraint chair. Wall voluntarily sat in the chair and was initially cooperative as the officers applied the restraints, but when Wall’s handcuffs were removed he resisted the officers and refused to move his arms. One officer applied a pressure point technique which caused the release of Wall’s right arm and allowed the other officers to place Wall’s arm in the strap. Wall eventually calmed down, and the blood technician was able to draw Wall’s blood. (¶¶3-4). “[W]hether the force used was excessive is determined by an evaluation of ‘whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.’” State v. Krause, 168 Wis. 2d 578, 484 N.W.2d 347 (Ct. App. 1992). Under that test the use of force in this case wasn’t excessive:

¶14     Here, Wall’s blood was drawn in a reasonable environment, Divine Savior Hospital and by trained personnel. Additionally, as the court noted in Krause, operation of a motor vehicle while intoxicated is a crime with significant social costs. Id. at 590. Wall, while initially cooperative with the officers, began actively resisting in a manner that could have injured himself or the officers present. Wall was resisting in a manner that required, at one point, as many as three officers to restrain him in order for the technicians to safely administer the blood draw. He also clearly indicated that he would not agree to the blood draw. These circumstances demonstrate that the officers’ use of force was reasonable. Therefore, I agree with the circuit court’s conclusion.

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