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Exigency — Blood Alcohol

State v. Jacob J. Faust, 2004 WI 99, reversing 2004 WI App 243, 267 Wis. 2d 783, 672 N.W.2d 97
For Faust: Stephen M. Seymour

Issue“(W)hether, under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution, exigent circumstances exist for a nonconsensual warrantless blood draw after the police have obtained what the arresting officer believes to be a voluntary, satisfactory, and useable chemical breath test indicating that the individual arrested was operating a motor vehicle with a prohibited level of alcohol concentration.” (¶2)


¶16 In Bohling … We determined that the more reasonable interpretation of Schmerber was the former one: that exigent circumstances exist “based solely on the fact that alcohol rapidly dissipates in the bloodstream.” Id. at 539.7 In other words, we determined in Bohling that Schmerber stands for the proposition that the fact that alcohol rapidly dissipates in the bloodstream justifies an officer’s belief that he is faced with “an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] ‘the destruction of evidence[.]'” Schmerber, 384 U.S. at 770 (citation omitted).

¶18. Therefore, we concluded that exigent circumstances exist based solely on the rapid dissipation of alcohol from a person’s bloodstream, such that a warrantless blood sample could lawfully be taken under the following circumstances:

(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.

Bohling, 173 Wis. 2d at 533-34.

¶19. In Krajewski, we determined that the exigency justifying a warrantless blood draw–the fact that evidence is likely to be destroyed–does not disappear “as soon as a person agrees to submit to a breath test as opposed to a blood test.”Krajewski, 255 Wis. 2d 98, ¶36. …

¶22. The fact that the police have obtained a presumably valid chemical sample of the defendant’s breath indicating the defendant’s level of intoxication does not change the fact that the alcohol continues to dissipate from the defendant’s bloodstream….

¶23. Thus, we conclude, based on the rationale of Bohling and Krajewski, that the presence of one presumptively valid chemical sample of the defendant’s breath does not extinguish the exigent circumstances justifying a warrantless blood draw. “[T]he relevant basis for exigency here is that evidence is likely to be destroyed.” Krajewski, 255 Wis. 2d 98, ¶36. Regardless of whether the police had obtained a breath sample from Faust, the evidence of intoxication revealed by the blood test was on a course towards destruction. The nature of the evidence sought, not the existence of other evidence, determines the exigency. We have found no authority that stands for the proposition that the police are limited to obtaining only a single piece of evidence under the exigent circumstances doctrine.9

The court goes on to say that “reasonableness” also operates to limit police activity, in other words that the “holding does not mean that the police have carte blanche to take an unlimitednumber of tests as long as alcohol continues to dissipate from the bloodstream.” ¶31. However, the court declines to “determine the outer boundaries of the exigent circumstances exception to the warrant requirement and draw a bright line in order to answer questions such as whether the police may constitutionally take multiple blood tests or a combination of chemical breath samples, urine tests, and blood tests all without a warrant, for these are not the facts before us.” Id.

¶33 … Here, the police obtained a chemical breath sample, the testing of which indicted that Faust possessed an alcohol concentration of 0.09. As noted supra, while the police were made aware after this test was performed that Faust had incurred two previous alcohol-related driving convictions, they could not know whether one or both of these convictions would ultimately be admitted at trial. If either of them were ultimately determined to be inadmissible, the State would be required to prove that Faust was operating his vehicle with an alcohol concentration of 0.1 or higher. See Wis. Stat. § 885.235(1g)(c). The preliminary breath test that indicated Faust possessed an alcohol concentration of 0.13 would not have been admissible for this purpose. Wis. Stat. § 343.303. Additionally, the police had no way of knowing at the time the test was administered whether the chemical analysis of Faust’s breath sample would be useable at trial. Given the strong state interest in removing drunk drivers from Wisconsin’s roadways (especially reoffending drunk drivers), Faust’s two apparent drunk driving related convictions, and the results of the initial chemical breath test, we cannot say that requiring Faust to submit to a single warrantless blood draw was unreasonable.16


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