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Pre-McNeely blood test results deemed admissible under good-faith exception to exclusionary rule

State v. Neil A. Morton, 2013AP2366-CR, District 4, 4/17/14 (1-judge; ineligible for publication); case activity

This is another OWI case holding that a warrantless blood draw that would now be unlawful under Missouri v. McNeely is admissible under the good-faith exception to the exclusionary  rule.

Déjà vu.  Morton appealed an OWI conviction arguing that the circuit court should have suppressed the results of his blood test because they were obtained without a warrant and in the absence of exigent circumstances.  He cited Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013).  However, the law in effect at the time of his blood draw was State v. Bohling, 173 Wis. 2d 529, 494 N.W2d 399 (1993).  And just 2 months ago the court of appeals held that in these circumstances the good-faith exception to the exclusionary rule applies à la  State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.  See State v. Reese, 2014 WI App 27 and On Point’s analysis here.  Thus, this one-judge opinion holds:

¶6  I am bound by this court’s decision in Reese. See Cook v. Cook, 208 Wis. 2d 166, 185–190, 560 N.W.2d 246 (1997) (the court of appeals is bound by published decisions of the court of appeals). Accordingly, I conclude that in this case, where a warrantless blood draw was obtained after Bohling but prior to McNeely, and where the appellant has not argued that the officer was not following clear, well-settled Wisconsin precedent when obtaining the warrantless blood draw, the good faith exception precludes suppression of the blood draw evidence. Accordingly, I affirm the decision of the circuit court denying Morton’s motion to suppress and the judgment of conviction.

There are 3 cases now being briefed in the Wisconsin Supreme Court re: McNeely‘s application to Wisconsin and Dearborn‘s good-faith exception to the exclusionary rule. Click here for On Point’s analysis of those case. Watch for oral argument and a decision on these issues next term.


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