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Religious objection to blood draw is not relevant at a refusal hearing

State v. Victoria M. Milewski, 2013AP1323, District 4, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

After being arrested for OWI Milewski refused a blood test, saying her Christian Scientist beliefs prohibited her from allowing a needle to be inserted in her body; she offered to provide a urine sample instead. (¶¶2-3). At her refusal hearing she asserted her refusal to submit to the blood test for religious reasons was a reasonable objection under State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d 399 (1993). Under Bohling a warrantless blood draw is permitted only where, in addition to three other factors, “the arrestee presents no reasonable objection” to the taking of the blood sample. (¶¶5-11).

But Bohling doesn’t apply here because it’s a Fourth Amendment case addressing suppression of evidence seized during an unreasonable search. (¶¶13-14). A refusal hearing, by contrast, is limited to four issues: 1) whether the officer had probable cause to believe that the person was operating a vehicle under the influence and lawfully placed the person under arrest; 2) whether the officer read the person the “Informing the Accused” form; 3) whether the person refused to permit the test; and 4) whether that refusal was due to a physical inability to submit. See § 343.305(9)(a)5. and (c). (¶16). Thus, a physical inability to submit to a requested test is the only reasonable ground for exonerating a refusal under the implied consent law, State v. Neitzel, 95 Wis. 2d 191, 202, 289 N.W.2d 828 (1980). Milewski did not claim she was physically unable to submit to the test, so the circuit court was correct to find she refused in violation of the implied consent law. (¶17).

To the extent Milewski meant to argue the implied consent law is unconstitutional as applied to her for not allowing her to refuse based on her religious beliefs, she failed to develop the argument, and the court of appeals expresses no opinion about the merits of such a claim. (¶18). She also failed to develop an argument that her offer to provide a urine sample means she didn’t refuse, and in any event that argument is foreclosed by both the statute, § 343.305(2), and State v. Krajewski, 2002 WI 97, ¶55, 255 Wis. 2d 98, 648 N.W.2d 385 (the implied consent statute authorizes a law enforcement officer to request his or her choice among the three chemical tests). (¶19).

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