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Exigency — Blood Alcohol — Probable Cause as Substitute for Actual Arrest

State v. Cara A. Erickson, 2003 WI App 43, PFR filed

Issue: Whether a warrantless draw of blood satisfies State v. Bohling, 173 Wis. 2d 529, 533- 34, 494 N.W.2d 399 (1993) where there is probable cause but not an actual arrest.


¶12. .. (I)n the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation or crime satisfies the first prong of Bohling. Furthermore, this same probable cause necessarily satisfies the second prong of Bohling, that “there is a clear indication that the blood draw will produce evidence of intoxication,” Bohling, 173 Wis. 2d at 534, because the probable cause standard used in Bentley is more demanding than the “clear indication” standard. See State v. Seibel, 163 Wis. 2d 164, 173, 471 N.W.2d 226 (1991) (“clear indication” is the equivalent of “reasonable suspicion”).

State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979) (probable cause to arrest substitutes for the predicate act of lawful arrest) followed; State v. Swanson, 164 Wis. 2d 437, 449-50, 475 N.W.2d 148 (1991), distinguished: “Swanson does not address the situation before this court in Bentley, the admissibility of evidence resulting from a search based on probable cause that evidence will be found and exigent circumstances. Thus, Swanson did not overrule Bentley.” ¶10. The quoted sentence is awkwardly worded, but the import is plain nonetheless; it’s exigent circumstances that take you out of Swanson, and dissipation of blood alcohol is certainly an exigency. So, the formulation should be, Probable cause to arrest and probable cause to believe an exigency is present substitute for formal arrest.


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