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Warrant to take blood allows testing of blood

State v. Benjamin Schneller, 2016AP2474, 6/22/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Benjamin Schneller was arrested for OWI and refused to submit to a blood draw, so the police got a warrant and took the blood anyway. He argues on appeal that the warrant only authorized the police to draw his blood, and that a separate warrant was required for them to test it.

The court rejects the claim on the ground that it is foreclosed by State v. Riedel, 2003 WI App 18, 259 Wis. 2d 921, 656 N.W.2d 789, which said “the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant.” (¶7).

Schneller argues that Riley v. California, 134 S.Ct. 2473, 2494-95 (2014), which required the police to get a warrant to search a cell phone seized incident to arrest, overruled Riedel. The court of appeals views Riley as addressing only cell phones, and only those seized incident to arrest, and thus concludes Riedel continues to bind it. As the court notes, Schneller remains free to attack Riedel in our supreme court. (¶9).

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