Date: 03-20-2003

Case Style: State v. Spencer S. Henderson

Case Number: 02-2023-CR

Judge: Michael J. Mulroy

Court: Wisconsin State of Appeals Fourth District

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description:

1. DYKMAN, J.1 Spencer Henderson appeals from a judgment of conviction for operating while intoxicated, a violation of Wis. Stat. § 346.63(1)(a) as a second offense. He asserts that the trial court erred when it denied his motions to suppress the results of the blood draw taken incident to his arrest. We affirm.

2. Henderson was arrested on March 2, 2001, after Wisconsin State Patrol Officer Brad Bray observed him driving at night without his headlights on and drifting between the fog lines on the highway at a high rate of speed, finally crossing the right side fog line. After Henderson was stopped and failed the field sobriety tests, Officer Bray handcuffed him and took him to Gundersen/Lutheran Hospital for a blood draw. When they arrived, Officer Bray read Henderson the "Informing the Accused" form in compliance with Wis. Stat. § 343.305(4).2 Henderson then submitted to the blood draw. The sample was mailed to the Laboratory of Hygiene where it was analyzed and determined that Henderson's blood alcohol concentration was 0.276 percent. Henderson was charged with violating Wis. Stat. § 346.63(1)(a) and (b), as a second offense. After the trial court denied his motions to suppress the evidence of his intoxication, Henderson entered a no contest plea. The trial court dismissed the prohibited alcohol content charge and sentenced Henderson to forty-five days in jail.

3. Henderson does not challenge the probable cause for his arrest and therefore we are presented solely with questions of law regarding the constitutionality of Wis. Stat. § 343.305(2) and the analysis of Henderson's blood sample. Accordingly, our review is de novo. State v. Krajewski, 2002 WI 97, 17, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, Krajewski v. Wisconsin, 123 S. Ct. 704 (U.S. Wis. Dec. 16, 2002).

4. Henderson's first issue, that the blood draw was a warrantless seizure in violation of the Fourth Amendment, is, as he concedes, controlled by the holdings in Krajewski, and State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240. It is by now a settled point of law in Wisconsin that the exigent circumstances exception to the Fourth Amendment allows the police, following an arrest for OWI supported by probable cause, to perform a blood test for alcohol concentration, regardless of the existence of a breathalyzer or other less intrusive test. Krajewski, 2002 WI 97 at 63-64; Thorstad, 2000 WI App 199 at 5-6.

5. Next, Henderson argues that implied consent statute, Wis. Stat. § 343.305(2), is unconstitutional because it violates the Fourth Amendment's protections against coerced consent to a search. The statute requires an individual arrested for OWI to make the Hobson's choice of submitting to a blood draw or immediately losing his or her driving privileges. Whether the provisions of § 343.305(4) are unreasonably coercive was, as Henderson acknowledged in his brief, recently addressed in State v. Wintlend, 2002 WI App 314, ___Wis. 2d ___, 655 N.W.2d 745, review denied (Wis. Jan. 14, 2003) (No. 02-0965-CR). Section 343.305(2) is not unconstitutional because, even if the coercive event occurs when the officer reads the "Informing the Accused" form, as opposed to when the individual applies for a driver's license, the limited intrusion posed by a blood draw is reasonable when weighed against the State's interest in protecting the public from intoxicated drivers. Id. at 17-18.

6. Finally, Henderson's remaining contention, that the chemical analysis of his blood after it was drawn constitutes a second warrantless search not meeting the exigent circumstances exception to the Fourth Amendment, is unavailing. We held in State v. Riedel, 2003 WI App 18, ___Wis. 2d ___, 656 N.W.2d 789, that the analysis of blood after it is drawn, even without consent, is not a second search subject to Fourth Amendment protections.3 This is because 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." Id. at 16 (quoting State v. VanLaarhoven, 2001 WI App 275, 16, 248 Wis. 2d 881, 637 N.W.2d 411).

7. The trial court properly denied Henderson's motions to suppress the results of his blood test and correctly concluded that the implied consent statute is constitutional.

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Click the case caption above for the full text of the Court's opinion.

Outcome: By the Court.-Judgment affirmed.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: Reported by A.Winger