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Warrantless Blood Draw – Medical Basis for Objection

State v. James Ralph Whitwell, 2011AP1342-CR, District 3/4, 5/24/12

court of appeals decision (not recommended for publication); for Whitwell: Jefren E. Olsen, Chandra N. Harvey, SPD, Madison Appellate; case activity

Whitwell challenges a warrantless blood draw, on related grounds: he objected at the time, informing officials that he suffered from a medical condition that made the draw dangerous absent certain precautionary measures; this objection to the draw was objectively reasonable. State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993), cited, for its 4-factor test for taking a warrantless blood sample (particular emphasis here on the 4th, “the arrestee presents no reasonable objection to the blood draw”). The court of appeals rejects the arguments.

The trial court found that Whitwell had said only that he was afraid of needles, a finding the court now upholds as not clearly erroneous, ¶¶16-22. The court proceeds to reject the idea that an objection not articulated at the time of the draw can subsequently be deemed reasonable:

¶24      Whitwell acknowledges that State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, and State v. Krause, 168 Wis. 2d 578, 484 N.W.2d 347 (Ct. App. 1992), both hold that expression of a fear of needles, in itself, is not a reasonable objection.[3] However, he asserts, both cases “appear to be premised on the fact that none of the defendants provided the court with a medical or religious basis to explain their fear.”  That is true; but neither case suggests that the court would have considered additional evidence presented at a suppression hearing explaining the basis of the defendant’s fear of needles, even if the defendant did not identify the basis for his fear at the time of the proposed blood draw.  Instead, the focus in both cases was on what the arrestee told the officer at the time of the blood draw.  See Krajewski 255 Wis. 2d 98, ¶¶49, 52; Krause, 168 Wis. 2d at 588.

¶26      We do not agree with Whitwell that the Krajewski court’s adoption of the standard from Wis. Stat. § 343.305(9)(a)5.c. supports the proposition that he may wait until the suppression hearing to identify the medical reasons for his objection. …

¶27      In addition to the absence of support in either Krause or Krajewski for Whitwell’s position, there is a more fundamental problem with his position: the evident illogic of determining the reasonableness of an officer’s conduct based on information the officer did not have at the time. …

¶30      In summary, we conclude Whitwell’s objection was not a reasonable objection because, as found by the circuit court, he told Deputy Coulthard and Hoff only that he was afraid of needles and not that he had a medical condition that made a blood draw dangerous absent special procedures.

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