Date: 03-20-2003

Case Style: State v. Thomas L. Salzwedel

Case Number: 02-2573-CR

Judge: James R. Beer

Court: Wisconsin State of Appeals Fourth District

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description:

1. VERGERONT, P.J.1 Thomas Salzwedel appeals the judgment of conviction for driving while intoxicated in violation of Wis. Stat. § 346.63(1)(a), second offense. We reject his challenges to the admissibility of the results of the chemical test performed on his blood and his constitutional challenge to Wis. Stat. § 343.305, the implied consent statute. We affirm the judgment and order.

2. Salzwedel was arrested for driving while intoxicated and was read the "Informing the Accused" form in compliance with Wis. Stat. § 343.305(4). He submitted to an evidentiary chemical test of his blood. Salzwedel moved to suppress the test result as violations of his Fourth Amendment right against unreasonable searches and seizures. He contended a warrant was needed for the blood draw and that the implied consent statute was unconstitutional because it compels a person to choose between abandoning the Fourth Amendment protection against unreasonable searches and seizures on the one hand, and suffering the sanctions of lost driving privileges on the other.2 The trial court denied the motion.

3. Because the facts are undisputed, the application of constitutional principles to those facts presents questions of law, which we review de novo. State v. VanLaarhoven, 2001 WI App. 275, 5, 248 Wis. 2d 881, 637 N.W.2d 411. Challenges to the constitutionality of a statute also present a question of law. State v. Smith, 215 Wis. 2d 84, 572 N.W.2d 496 (Ct. App. 1997).

4. Salzwedel concedes that under State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, the warrantless seizure of his blood did not violate the Fourth Amendment because it comes within the exception to the warrant requirement for exigent circumstances.3 However, he contends, the analysis of his blood is a separate search that must be justified by an exception separate from that for the seizure of his blood, and exigent circumstances do not justify the analysis of his blood once it has been drawn. We have recently rejected this very argument in State v. Riedel, 2003 WI App 18, ___ Wis. 2d ____, ____N.W. 2d ____ (2002), ordered published January 29, 2003.

5. As Salzwedel also recognizes, we have recently rejected the argument that the implied consent law is unconstitutional because it compels drivers to consent to submitting to a chemical test by threatening loss of driving privileges. State v. Wintlend, 2002 WI App. 314, ___ Wis. 2d ___, 655 N.W.2d 745.4

6. Accordingly, we hold the trial court properly denied Salzwedel's motion to suppress the results of the chemical test of his blood.

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

Outcome: By the Court.-Judgment and order affirmed.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: Reported by A.Winger