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Pre-McNeely blood test results are admissible even if officer didn’t cite specific rule permitting the blood draw

Waukesha County v. Dushyant N. Patel, 2013AP2292, District 2, 5/14/14 (1-judge; ineligible for publication); case activity

The result of a blood draw done in violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013), are admissible under the good-faith exception to the exclusionary rule because police acted in conformity with clear, well-settled Wisconsin law that permitted the blood draw at the time it was done, even if the arresting officer didn’t cite that law in justifying the blood draw.

Citing McNeely, Patel moved to suppress the result of his blood test because his blood was drawn without a warrant and in the absence of exigent circumstances. But 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 the court of appeals has already held that under State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and Davis v. United States, 131 S. Ct. 2419 (2011), the good-faith exception to the exclusionary rule permits the admission of pre-McNeely blood test results obtained in reliance on the clear, well-settled precedent of Bohling. See State v. Reese, 2014 WI App 27.

Patel tries to evade Reese by arguing the arresting officer didn’t cite Bohling in justifying the blood draw, but only said that he was following “our policy at that time.” (¶¶3, 8). The court of appeals holds this immaterial because under Dearborn and Davis the test is an objective one. (¶¶9-10).

¶11      Patel has directed us to no law demonstrating that the particular officer directing that blood be drawn must know the specific case or statute upon which a policy he or she is following is based. Nor has he identified any law stating it is insufficient that a law enforcement officer’s actions were in fact consistent with “clear and settled Wisconsin precedent” as it existed at the time, whether or not the officer knew the specific law (statute or case law) that supported his acts.

¶12      While the deputy in this case did not articulate at the suppression hearing the specific case law supporting his procurement of the blood sample, he acted in conformity with clear, settled Wisconsin Supreme Court precedent in effect at the time. …

Other courts likewise read Davis as establishing a purely objective test, under which the issue is whether the officer’s conduct was consistent with case law, not whether the officer subjectively relied on that case law. See, e.g., United States v. Sparks, 711 F.3d 58, 66 n.5 (1st Cir. 2013); United States v. Madden, 682 F.3d 920, 927-28 (10th Cir. 2012).

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