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At approximately 9:18 p.m. on July 7, 2013, Deputy

Robert Schiro of the Dane County Sheriff's Office received a

call from dispatch indicating that an individual had been in a

motorcycle crash with a deer. Dispatch detailed that the driver

was unconscious. Deputy Schiro arrived at the scene of the

accident and found the deceased deer and the motorcycle in the

middle of the road. The driver of the motorcycle was the

defendant in the present case, David Howes. He was positioned

approximately 40 feet away from the deer and was seriously 4 Because we conclude that the search was reasonable under the totality of circumstances presented herein, we need not reach whether Wis. Stat. § 343.305(3)(b) is facially unconstitutional. See generally, State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) ("When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.").

injured and unconscious. When the deputy arrived, Emergency

Medical Services (EMS) was already attending to Howes.

¶5 At the scene, there were several bystanders situated

near EMS and the ambulance. The deputy unsuccessfully searched

for a witness that had observed the accident. Though

unsuccessful, the deputy testified that an individual approached

him and, referring to Howes, stated he smelled an odor of

intoxicants. As the lone police officer at the scene, the

deputy had multiple responsibilities relating to containing the

accident scene and was unable to obtain the individual's name.

¶6 While EMS continued to attend to Howes, the deputy had

to ensure the safety of those traveling through the accident

scene because a dead deer and a motorcycle were partially

blocking the road. The deputy began to direct traffic lanes

that ran through the scene of the accident. The deputy also

ensured that no one moved the motorcycle and preserved other

evidence relating to the accident. The deputy asked bystanders

to move out of EMS's way. During his investigation, other

officers arrived, and Howes, still unconscious, was transported

to the hospital.

¶7 The deputy then left to go to the hospital to follow

up with Howes. During the drive to the hospital, the deputy

checked Howes' Department of Transportation records. He

testified that his purpose was to confirm that the motorcycle

driver was in fact Howes and to check Howes' driving record. As

a result of this record check, the deputy discovered that Howes

had three prior OWI/PAC convictions. These prior convictions

signaled to the deputy that Howes had a PAC threshold more

restrictive than the usual 0.08 percent. Specifically, Howes

violated the law if he had operated the motorcycle with a blood

alcohol concentration of as little as 0.02 percent.5

¶8 After the deputy arrived at the hospital, he

immediately spoke with the two Emergency Medical Technicians

(EMTs), who were in the ambulance with Howes as he was

transported to the hospital. The deputy inquired about whether

either of the EMTs had smelled alcohol on Howes' breath. The

deputy testified that the EMT positioned in the ambulance near

Howes' head smelled a "high odor of intox coming from" Howes.

The EMT positioned in the ambulance at Howes' feet did not smell

intoxicants.

¶9 The deputy proceeded to the emergency room in which

medical staff was treating Howes. The deputy testified that

"numerous nurses and medical staff [were] attending to [Howes]

at the time." The ongoing medical treatment prevented the

deputy from approaching Howes. However, one nurse told the

deputy that there was a strong odor of intoxicants in Howes'

room.

¶10 The deputy observed that Howes had not regained

consciousness and that he was intubated to assist his breathing.

The deputy spoke with a physician with regard to Howes' medical

condition. The physician said that Howes was in critical

condition and possibly had a brain injury. He said that Howes

needed a CT scan to further evaluate his injuries.

¶11 At approximately 10:15 p.m., the deputy arrested Howes

for operating a motor vehicle with a prohibited alcohol

concentration. The deputy testified that he arrested Howes for

the following reasons: (1) three different individuals smelled

an odor of intoxicants emanating from Howes; (2) Howes had a

prohibited alcohol concentration threshold of 0.02 percent due

to his previous drunk-driving convictions; and (3) the crash.

¶12 After arresting Howes, and while Howes was still

unconscious, the deputy read Howes the informing the accused

form. The deputy asked Howes if he would submit to an

evidentiary chemical test of his blood, and Howes did not

respond.6 The deputy then instructed hospital staff to draw a

blood sample to test for alcohol concentration.

¶13 At 11:17 p.m., roughly two hours after the accident

and an hour after the deputy asked hospital staff to draw Howes'

blood, a phlebotomist completed the blood draw. The deputy

testified that the hour delay occurred either because medical

personnel at the hospital were too busy to draw the blood, or

Howes may have had a CT scan during this interim period.7 The unconscious because he thought he was legally required to do so.

7 If a CT scan occurred during this period, it would be consistent with a physician's statement to the deputy shortly after the deputy arrived at the hospital that Howes needed to have a CT scan.

report of the blood test stated that Howes had a 0.11 percent

blood alcohol concentration. This was well in excess of the

0.02 percent prohibited alcohol concentration threshold to which

he was subjected due to his prior drunk-driving convictions.

¶14 Howes was charged with operating a vehicle while

intoxicated (OWI) (fourth offense while having a prior OWI

within five years) in violation of Wis. Stat. § 346.63(1)(a) and

operating a vehicle with a prohibited alcohol concentration

(PAC) (fourth offense while having a prior PAC within five

years) in violation of § 346.63(1)(b). Howes moved to suppress

the report that resulted from the blood draw. The circuit court

granted Howes' motion. First, the circuit court concluded that

the deputy had probable cause to arrest Howes. The court based

its conclusion, in part, on the statements to the deputy by

various individuals indicating that there was a smell of

intoxicants coming from Howes. The court also concluded that

"central to the probable cause determination [was] that this was

a gentleman who had three prior convictions," and was subject to

a PAC threshold of 0.02 percent, rather than 0.08 percent. As

part of this determination, the court found that the deputy had

searched Howes' driving record prior to arresting Howes; and

therefore, he knew that Howes was subject to a PAC threshold of

0.02 percent.

¶15 Next, the circuit court addressed the

constitutionality of Wisconsin's implied consent statute as it

relates to unconscious persons, Wis. Stat. § 343.305(3)(b). The

court concluded that § 343.305(3)(b), which allows withdrawal of

blood from an unconscious person, is unconstitutional if the

blood draw is done without a warrant or the presence of exigent

circumstances. After finding the statute unconstitutional, the

circuit court, without analysis, concluded that there were no

exigent circumstances presented by this case.

¶16 The State appealed and the court of appeals certified

the case for our review. We now reverse.

II. DISCUSSION

A. Standard of Review

¶17 "Our review of an order granting or denying a motion

to suppress evidence presents a question of constitutional

fact." State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421,

857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327

Wis. 2d 302, 786 N.W.2d 463). "When presented with a question

of constitutional fact, this court engages in a two-step

inquiry." Robinson, 327 Wis. 2d 302, ¶22.

¶18 First, the circuit "court's findings of evidentiary or

historical fact will not be overturned unless they are clearly

erroneous." State v. Richter, 2000 WI 58, ¶26, 235 Wis. 2d 524,

612 N.W.2d 29. Next, we "independently determine whether the

historical or evidentiary facts establish exigent circumstances

sufficient to justify the warrantless" search. Id.

¶19 In the present case, we apply this two-step inquiry to

determine whether the warrantless blood draw was reasonable

under the Fourth Amendment of the United States Constitution and

Article I, Section 11 of the Wisconsin Constitution.



B. General Principles



¶20 A blood draw is a search of the person. Tullberg, 359

Wis. 2d 421, ¶31 ("A blood draw to uncover evidence of a crime

is a search within the meaning of the Fourth Amendment."). At

issue in the present case is whether the deputy acted reasonably

in instructing hospital personnel to draw Howes' blood when he

did not have a warrant. Accordingly, we must determine whether

the deputy's warrantless search of Howes was permissible under

the Fourth Amendment and Article I, Section 11.

¶21 "The Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution protect the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures." Id., ¶29 (quoting Robinson, 359 Wis. 2d

421, ¶24). "The touchstone of the Fourth Amendment is

reasonableness." Id. (internal quotation marks omitted). As

such, "[t]he Fourth Amendment does not proscribe all state

initiated searches and seizures; it merely proscribes those

which are unreasonable." Id. (internal quotation marks

omitted). "An action is 'reasonable' under the Fourth

Amendment, regardless of the individual officer's state of mind,

'as long as the circumstances, viewed objectively, justify [the]

action.'" Brigham City, Utah v. Stuart, 547 U.S. 398, 404

(2006) (quoting Scott v. United States, 436 U.S. 128, 138

(1978)).

¶22 Absent from the text of the Fourth Amendment is the

obligation that the government must obtain a warrant to conduct

a search. However, it is axiomatic that "warrants must

generally be obtained." Missouri v. McNeely, 133 S. Ct. 1552,

1569 (2013) (Roberts, C.J., concurring in part and dissenting in

part). Consistent with these principles, "[a] warrantless

search is presumptively unreasonable." Tullberg, 359 Wis. 2d

421, ¶30.

¶23 To overcome this presumption, a warrantless search

must fall under an exception to the warrant requirement. See

State v. Foster, 2014 WI 131, ¶32, 360 Wis. 2d 12, 856 N.W.2d

847 ("Consistent with the United States Supreme Court's

interpretation of the Fourth Amendment, we have adhered to the

basic principle that warrantless searches are per se

unreasonable unless they fall within a well-recognized exception

to the warrant requirement."). "One exception to the warrant

requirement is the exigent circumstances doctrine, which holds

that a warrantless search complies with the Fourth Amendment if

the need for a search is urgent and insufficient time to obtain

a warrant exists." Tullberg, 359 Wis. 2d 421, ¶30.

¶24 "There are four well-recognized categories of exigent

circumstances . . . 1) hot pursuit of a suspect, 2) a threat to

the safety of a suspect or others, 3) a risk that evidence will

be destroyed, and 4) a likelihood that the suspect will flee."

Richter, 235 Wis. 2d 524, ¶29. The burden is on the government

to establish that its actions fit into one of the well

recognized exceptions. State v. Phillips, 2009 WI App 179, ¶7,

322 Wis. 2d 576, 778 N.W.2d 157. And, "the test for determining

the existence of exigent circumstances is an objective one."

Robinson, 327 Wis. 2d 302, ¶30.

¶25 If exigent circumstances are present, we have

distilled four additional requirements that a warrantless blood

draw in a drunk driving case must satisfy to be reasonable under

the Fourth Amendment:

(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 performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

State v. Kennedy, 2014 WI 132, ¶17, 359 Wis. 2d 454, 856 N.W.2d

834 (quoting State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d

399 (1993) abrogated in part by Missouri v. McNeely, 133 S. Ct.

1552 (2013)). We have "explained that probable cause to arrest

for a drunk-driving related violation or crime 'substitutes for

the predicate act of lawful arrest' under the first factor."

Id. (quoting Bohling, 173 Wis. 2d at 534 n.1). "The second

factor, whether there is a clear indication that the blood draw

will produce evidence of intoxication, in this case is also

satisfied by the same facts that support a finding of probable

cause to arrest." Id. (internal quotation marks omitted).

¶26 In the present case, there is no dispute as to the

presence of the third and fourth factors. The blood was drawn

in a reasonable manner; it was taken in a hospital by a person

authorized to draw blood. See State v. Krajewski, 2002 WI 97,

¶47, 255 Wis. 2d 98, 648 N.W.2d 385 ("Krajewski and the State

stipulated that the blood draw was taken in a hospital by a

registered nurse. Thus, the blood draw was effected in a

reasonable manner."). Similarly, with respect to the fourth

factor, the suspect did not present a reasonable objection to

the type of search the deputy sought to conduct, a blood draw.8

Accordingly, we must examine whether the deputy lawfully 8 An analysis under the fourth factor does not require us to determine whether an individual consented to a search; instead, it refers to an objection to the type of search the officer chose to conduct (e.g., a blood draw as opposed to a breathalyzer). See State v. Krajewski, 2002 WI 97, ¶48, 255 Wis. 2d 98, 648 N.W.2d 385. As this Court in State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834 recognized, the fourth factor is derived from the Supreme Court's decision in Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the Supreme Court explained that an analysis under the fourth factor is reserved for those instances in which an individual has raised a legitimate and significant objection to having his or her blood drawn. The Court concluded that the defendant in that case did not raise a reasonable objection to the blood draw because the defendant was "not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the 'Breathalyzer' test petitioner refused." Schmerber, 384 U.S. at 771. See also State v. Krause, 168 Wis. 2d 578, 588, 484 N.W.2d 347 (Ct. App. 1992) ("Krause asserts, however, that his refusal still is constitutionally protected because he told Officer Dornfeld that he 'didn't believe in needles' and 'd[id]n't want AIDS.' This argument fails. These isolated comments do not establish that Krause is 'one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing' whose wishes the Schmerber Court declined to address."). Consequently, the fourth factor speaks to the reasonableness of the type of search employed, not whether a warrant was required to conduct the search. As such, to say that Howes made no objection to the type of search is not to say that Howes impliedly consented to being searched. Each inquiry is analytically distinct.

arrested Howes based on probable cause that Howes had driven

with a prohibited alcohol concentration, i.e., 0.02 percent or

higher. Next, we must determine whether exigent circumstances

existed such that the deputy was justified in proceeding without

a warrant.



C. Probable Cause to Arrest



¶27 With respect to the probable cause analysis, the

deputy in this case arrested Howes; therefore, the dispositive

inquiry is whether the deputy had probable cause to conduct this

arrest. We conclude that the deputy had probable cause to

arrest Howes for operation of a vehicle with a prohibited

alcohol concentration under the facts as found by the circuit

court.

¶28 "Warrantless arrests are unlawful unless they are

supported by probable cause." State v. Blatterman, 2015 WI 46,

¶34, 362 Wis. 2d 138, 864 N.W.2d 26. "Probable cause to arrest

... refers to that quantum of evidence within the arresting

officer's knowledge at the time of the arrest that would lead a

reasonable law enforcement officer to believe that the defendant

was operating a motor vehicle [at a prohibited alcohol

concentration]." Id. (quoting State v. Lange, 2009 WI 49, ¶19,

317 Wis. 2d 383, 766 N.W.2d 551). "The burden is on the state

to show [it] had probable cause to arrest." Id. (internal

quotation marks omitted). And, "[w]e evaluate the existence of

probable cause objectively, concerned with whether law

enforcement acted reasonably." Robinson, 327 Wis. 2d 302, ¶26.

¶29 We look at the "totality of the circumstances to

determine whether probable cause . . . existed." Tullberg, 359

Wis. 2d 421, ¶33. "In dealing with probable cause, . . . as the

very name implies, we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983)

(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

"This standard is case-specific: '[t]he quantum of information

which constitutes probable cause to arrest must be measured by

the facts of the particular case.'" Blatterman, 362 Wis. 2d

138, ¶35 (quoting State v. Paszek, 50 Wis. 2d 619, 625, 184

N.W.2d 836 (1971)).

¶30 A number of factors may be relevant to a determination

of probable cause in the context of an arrest for a drunk

driving related offense. As we have previously detailed,

"factors sufficient to support a finding of probable cause have

included bloodshot eyes, an odor of intoxicants, and slurred

speech, together with a motor vehicle accident or erratic

driving." Kennedy, 359 Wis. 2d 454, ¶22.

¶31 Additionally, "[p]olice may properly consider prior

convictions in a probable cause determination." Blatterman, 362

Wis. 2d 138, ¶36; see also State v. Goss, 2011 WI 104, ¶24, 338

Wis. 2d 72, 806 N.W.2d 918. "Prior convictions are especially

relevant in this case because the statute reduced the PAC

threshold applicable to [the defendant] from 0.08% to 0.02%

alcohol concentration." Blatterman, 362 Wis. 2d 138, ¶36.

¶32 In this case, the deputy checked Howes' driving

record, which indicated that Howes had three prior OWI/PAC

convictions. This lowered Howes' PAC threshold to 0.02 percent.

The circuit court properly found this highly relevant in

determining that the deputy had probable cause to arrest Howes.

¶33 Moreover, three people told the deputy that Howes

smelled of intoxicants: (1) an individual at the scene of the

accident; (2) one of the EMTs who rode in the ambulance with

Howes; and (3) a nurse at the hospital. Taken together with the

vehicle accident, these facts were sufficient to provide the

deputy with probable cause to arrest Howes for operating a

vehicle with a prohibited alcohol concentration.

¶34 We note that probable cause in this case developed

over a period of time. At the accident scene, one bystander

mentioned that Howes may have smelled of intoxicants. While on

his way to the hospital, the deputy learned that Howes' PAC

threshold had been lowered to 0.02 percent because of his prior

convictions for OWI/PAC. Then, at the hospital, the deputy

spoke with EMT personnel, one of whom said that Howes smelled of

intoxicants and later he spoke with a nurse who also said that

Howes smelled of intoxicants. At that point, the deputy

reasonably believed that he had probable cause to conclude that

Howes had operated his motorcycle with a prohibited alcohol

concentration of 0.02 percent. He then placed Howes under

arrest. We agree that the deputy had probable cause to believe

that Howes had violated Wis. Stat. § 346.63(1)(b) under the

provisions of Wis. Stat. § 340.01(46m)(c).





D. Exigent Circumstances



¶35 We next examine whether the warrantless blood draw was

justified by exigent circumstances. To determine if a

warrantless blood draw was permissible under the Fourth

Amendment, we look at the totality of the circumstances and

engage in a "careful case-by-case assessment of exigency."

McNeely, 133 S. Ct. at 1561.

¶36 "Like our analysis of probable cause, the test for

determining the existence of exigent circumstances is an

objective one." Tullberg, 359 Wis. 2d 421, ¶41 (quoting

Robinson, 327 Wis. 2d 302, ¶30). It follows that we give no

weight to the subjective belief of an officer.9 See United

States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000)

(reasoning "a police officer's subjective belief that exigent

circumstances exist is insufficient to make a warrantless

search. Instead, as is normally the case for Fourth Amendment

inquiries, the test is objective . . . ."). Accordingly, we

independently examine the facts known to the officer at the time

of the warrantless search.

¶37 An officer is justified in conducting a warrantless

search to prevent the destruction of evidence. And, "[e]vidence

of a crime is destroyed as alcohol is eliminated from the

bloodstream of a drunken driver." Tullberg, 359 Wis. 2d 421,

¶42. While the natural dissipation of alcohol is not, under all 9 Accordingly, the deputy's testimony that he had time to obtain a warrant in this case is irrelevant to our analysis.



circumstances, an exigent circumstance sufficient to allow an

officer to conduct a warrantless blood draw, there are

situations in which the totality of the circumstances would

justify such a search. "[A] warrantless blood draw [need not]

always require a 'now or never' situation in order to be

justified by exigent circumstances. Rather, exigent

circumstances justify a warrantless blood draw if delaying the

blood draw would 'significantly undermin[e] [its] efficacy.'"

Id., ¶50 (quoting McNeely, 133 S. Ct. at 1561); cf. State v.

Parisi, 2016 WI 10, ¶40, 367 Wis. 2d 1, 875 N.W.2d 619 ("Under

the circumstances, Officer Fenhouse might reasonably have feared

that if he attempted to obtain a warrant before drawing Parisi's

blood, Parisi's condition could again lapse, causing Officer

Fenhouse to miss his window of opportunity.").

¶38 The United States Supreme Court's decision in

Schmerber v. California, 384 U.S. 757 (1966), illustrates a

circumstance in which a warrantless blood draw in the context of

a drunk-driving offense is reasonable. In Schmerber, an

individual was "arrested at a hospital while receiving treatment

for injuries suffered in an accident involving the automobile

that he had apparently been driving." Id. at 758. Without

obtaining a warrant, the officer instructed a physician at the

hospital to draw the defendant's blood. Id. "The chemical

analysis of this sample revealed a percent by weight of alcohol

in his blood at the time of the offense which indicated

intoxication, and the report of this analysis was admitted in

evidence at the trial." Id. at 759. The defendant objected to

the admission of the report and contended, in part, that these

results "should be excluded from evidence as the product of an

unlawful search and seizure in violation of the Fourth and

Fourteenth Amendments." Id. at 766.

¶39 The United States Supreme Court rejected the

defendant's contention that the warrantless blood draw was

unreasonable and concluded that the officer's search was

justified by exigent circumstances. Id. at 770. The Court, in

part, premised its decision on the defendant's injuries that had

delayed the officer's ability to secure a blood draw from the

defendant. Specifically, the Court reasoned:

We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.

Id. at 770-71. Consequently, the Court surmised that "[t]he

officer . . . might reasonably have believed that he was

confronted with an emergency, in which the delay necessary to

obtain a warrant, under the circumstances, threatened the

destruction of evidence." Id. (internal quotation marks

omitted).

¶40 Following Schmerber, the Supreme Court in McNeely

reaffirmed the principle that dissipation of alcohol from the

blood stream may lead to the destruction of evidence, and

therefore constitute an exigent circumstance sufficient to

justify a warrantless blood draw. McNeely, 133 S. Ct. at 1560

(reasoning, "our analysis in Schmerber fits comfortably within

our case law applying the exigent circumstances exception.").

The Court clarified that its decision in Schmerber was not

predicated solely on the natural dissipation of alcohol from the

bloodstream; rather, there were "special facts" that made the

blood draw reasonable under the totality of circumstances

present in Schmerber. Id. These "special facts" were that the

defendant was injured and in the hospital, and that the officer

had to investigate the scene of the accident. The Court

reasoned,

Regardless of the exact elimination rate, it is sufficient for our purposes to note that because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence.

Id. at 1560-61. These facts made the officer's need to draw

blood more urgent and, given this urgency, the officer's actions

were justified under the exigent circumstances doctrine. Id. at

1560 ("We added that '[p]articularly in a case such as this,

where time had to be taken to bring the accused to a hospital

and to investigate the scene of the accident, there was no time

to seek out a magistrate and secure a warrant.'" (quoting

Schmerber, 384 U.S. at 770-71).

¶41 Moreover, we note that our decision is consistent with

the Supreme Court's narrow holding in McNeely that dissipation

of alcohol from the bloodstream, standing alone, does not always

constitute an exigent circumstance. The Supreme Court in

McNeely did not simultaneously create that which it sought to

eradicate. Stated otherwise, McNeely did not create a per se

rule that a warrantless blood draw based on the natural

dissipation of alcohol from the blood stream is never

reasonable. Id. at 1568 ("The relevant factors in determining

whether a warrantless search is reasonable, including the

practical problems of obtaining a warrant within a timeframe

that still preserves the opportunity to obtain reliable

evidence, will no doubt vary depending upon the circumstances in

the case.").

¶42 Instead, the Court in McNeely validated the foundation

of its decision in Schmerber; specifically, dissipation of

alcohol from the bloodstream may justify an officer's

warrantless blood draw. The Court in McNeely went so far as to

recognize that delay in obtaining a warrant, even without the

presence of extraneous factors, may justify a warrantless blood

draw. The Court stated, "an individual's alcohol level

gradually declines soon after he stops drinking, a significant

delay in testing will negatively affect the probative value of

the results." Id. at 1561; see also id. at 1568 ("No doubt,

given the large number of arrests for this offense in different

jurisdictions nationwide, cases will arise when anticipated

delays in obtaining a warrant will justify a blood test without

judicial authorization, for in every case the law must be

concerned that evidence is being destroyed.").

¶43 As is evident from the Court's analysis in Schmerber

and McNeely, certain facts are particularly relevant to an

exigent circumstances analysis in drunk-driving cases. Whether

an officer was delayed in obtaining a blood draw due to the

defendant's medical condition is one such fact. Additionally,

whether the officer was delayed because time had to be taken to

investigate the scene of the accident is also highly relevant.

See Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

("On the specific facts of [Schmerber], where time had already

been lost taking the driver to the hospital and investigating

the accident, the Court found no Fourth Amendment violation even

though the warrantless blood draw took place over the driver's

objection.").

¶44 The Minnesota Supreme Court, relying on these factors,

concluded that exigent circumstances justified a search under

circumstances similar to that of Schmerber. See Minnesota v.

Stavish, 868 N.W.2d 670, 676-77 (Minn. 2015). In Stavish, the

Minnesota Supreme Court concluded that, under the totality of

circumstances, a warrantless blood draw of a hospitalized

individual was justified by exigent circumstances. The Court

reasoned, "Stavish's medical condition and need for treatment

rendered his future availability for a blood draw uncertain.

[The officer] did not know how long Stavish was likely to remain

at the same hospital or whether further medical care would

preclude obtaining a sample even if Stavish stayed at the same

hospital." Id. at 678. As a result, "it was objectively

reasonable for [the officer] to conclude that he was faced with

an emergency in which the delay necessary to obtain a warrant

threatened the destruction of evidence." Id.

¶45 The circumstances of a critically injured driver who

needed immediate medical care that justified the warrantless

blood draw in Schmerber and Stavish are present in the case at

hand. And in addition, Howes' prohibited alcohol concentration

threshold of 0.02 percent increased the need for a prompt blood

draw. Dissipation or dilution of alcohol in his bloodstream due

to the passage of time and medical treatments threatened the

State's ability to prove the crime for which he was arrested.

This is so because "[a]lcohol dissipates from the bloodstream at

a rate of 0.01 percent to 0.025 percent per hour." McNeely, 133

S. Ct. at 1570-71 (Roberts, C.J., concurring in part and

dissenting in part) (citing Richard Stripp, Forensic and

Clinical Issues in Alcohol Analysis, in Forensic Chemistry

Handbook 440 (Lawrence Kobilinsky ed., 2012)). If Howes

violated his restricted PAC with a blood alcohol concentration

of 0.02 percent, it would take approximately an hour for Howes'

blood alcohol level to go to 0.00 percent. This is roughly the

amount of time that elapsed between Howes' accident and the time

in which the deputy first had probable cause necessary to obtain

a warrant. As each minute passed, the likelihood that Howes'

blood alcohol level would diminish to 0.00 percent increased

significantly. At 0.00 percent, it would be impossible to

calculate what his blood alcohol level was at the time of the

accident.

¶46 In addition, similar to the officer in Schmerber, the

deputy's responsibilities at the accident scene led to a

significant delay in the ability of the deputy to obtain a blood

draw. For example, he was required to secure evidence relating

to the accident and ensure the safety of those traveling on

roads through the scene of the accident. The investigation of

the accident took time. During this time, reliable evidence of

Howes' blood alcohol concentration was being destroyed by the

passage of time and treatment at the hospital.10

¶47 Furthermore, akin to the defendant in Schmerber, Howes

was in critical condition. The severity of Howes' condition

made the deputy's ability to obtain a blood draw in the future

uncertain. This uncertainty was exacerbated because at least

one hour already had passed since the accident and the deputy

had no knowledge about the time at which Howes stopped drinking.

¶48 Howes was unconscious, and it was unknown whether he

had suffered brain damage. Importantly, a physician indicated

that Howes would need a CT scan.11 The deputy could reasonably

have concluded that waiting for a CT scan before obtaining a

blood draw would "significantly undermin[e] the efficacy" of the

blood analysis to prove Howes violated his PAC threshold of 0.02

percent. See Tullberg, 359 Wis. 2d 421, ¶50 n.26 (quoting

McNeely, 133 S. Ct. at 1561).

¶49 Additionally, as we have explained, the deputy did not

have probable cause to arrest Howes until he arrived at the

hospital, talked with EMTs and talked with the nurse who told

him that she also smelled alcohol. Accordingly, the present

case is not one in which the officer could have obtained a

warrant on the way to the hospital because he did not have

probable cause to obtain a warrant then. Applying for a warrant

after his conversations with Howes' care-givers would have led

to additional delay and the further dissipation of alcohol from

Howes' bloodstream. See id., 359 Wis. 2d 421, ¶48 n.25 ("We

note that Deputy Hoffman could not have had other officers

assist him in obtaining a warrant while he investigated the

accident because he did not have probable cause to have

Tullberg's blood drawn until immediately before it was drawn.").

¶50 Accordingly, we conclude that the warrantless blood

draw from Howes was permissible under the Fourth Amendment of

the United States Constitution and Article I, Section 11 of the

Wisconsin Constitution because under the totality of

circumstances the exigent circumstance of destruction of

evidence existed.