WI Court of Appeals rules drunk driver's blood test need not be conducted at a hospital.

• Author: Ziemer, David

Byline: David Ziemer

When testing a suspected drunk driver's blood for evidence of intoxication, the blood draw need not be taken at a hospital to be reasonable, the Wisconsin Court of Appeals held on Dec. 11.

Facts and Procedure

Dennis L. Daggett was arrested for operating a motor vehicle while intoxicated. Deputy Tom Gunderson transported Daggett to the Pierce County jail, where he requested Daggett to submit to a blood test.

Daggett refused, but his blood was nevertheless withdrawn in the booking room of the jail. The blood was drawn by a doctor while two officers restrained Daggett.

The draw indicated a blood alcohol concentration of .336% and Daggett was charged with third offense drunk driving. Daggett moved to suppress the results of the blood test, arguing that the draw was unlawful because it took place in the jail rather than a hospital.

Gunderson testified that the department policy was to go to the hospital for the draw only if a doctor was unavailable to come to the jail, which is less expensive than an emergency room visit.

Judge Robert W. Wing granted the suppression motion, and the State appealed. The Court of Appeals reversed and remanded in a decision by Judge Thomas Cane.

The Court's Reasoning

Under the test set forth in State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993), a warrantless blood draw is constitutional if four conditions are met: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime; (2) there is a clear indication that the blood draw will produce evidence of intoxication; (3) the method used to take the blood sample is a reasonable one and is performed in a reasonable manner; and (4) the arrestee presents no reasonable objection to the blood draw.

Only the third condition was at issue here. In support of his argument, Daggett cited to Bohling, as well as Schmerber v. California, 384 U.S. 757 (1966) and State v. Thorstad, 2000 WI App 199, 238 Wis.2d 666, 618 N.W.2d 240, all of which involved blood draws taken at a hospital.

In Schmerber, the U.S. Supreme Court stated, "We are ... not presented with the serious questions which would arise if a search ... were made ... in other than a medical environment - for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain."

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