Both breath, blood tests cannot be taken.

Byline: David Ziemer

Once an individual arrested on probable cause for OWI has provided a satisfactory and useable breath test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist, the Wisconsin Court of Appeals held on Oct. 1.

On Feb. 19, 2002, Sheboygan police officer James Olsen conducted a traffic stop and suspected the driver, Jacob J. Faust, of being intoxicated. After Faust failed field sobriety tests, Olsen administered a preliminary breath test which returned a result of a .13 BAC.

Olsen then transported Faust to the station, where he agreed to provide a sample of his breath for chemical analysis. The breath test reflected a BAC of .09, which was over the legal limit because Faust already had two prior convictions.

Although Olsen was aware that Faust was therefore operating with a prohibited BAC, given his two prior convictions, he advised Faust that he would seek a blood test as well. Olsen read Faust an Informing the Accused form, and Faust refused to consent to a blood test. A forced blood sample was subsequently drawn from him at the hospital, and the sample revealed a BAC of .10.

Faust moved to suppress the blood test results, arguing that, since the breath test had already established that his blood alcohol exceeded the prohibited legal limit, there was no longer any exigency justifying a blood draw without a warrant. Sheboygan County Circuit Court Judge Gary Langhoff agreed and granted the motion.

The state appealed, but the court of appeals affirmed in a decision written by Judge Richard S. Brown, and joined by Judge Daniel P. Anderson. Judge Neal Nettesheim wrote a concurring opinion.

State v. Krajewski

The court concluded that the decision was governed by language of the Wisconsin Supreme Court in State v. Krajewski, 2002 WI 97, 255 Wis.2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089.

Krajewski was arrested on probable cause for OWI. When asked to submit to a blood test, Krajewski refused, citing a fear of needles. Krajewski instead offered to provide a breath or urine sample, but was forced to submit to a blood draw.

Krajewski acknowledged that the rapid dissipation of alcohol in a person's bloodstream creates an exigency justifying a forcible blood draw when a person refuses to submit to any chemical test, but argued that once the person offers to submit to an alternative chemical test, the exigency disappears and the officer may not proceed with an involuntary test without a...