State v. Colleen B. Dunn

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COURT OF APPEALS DECISION DATED AND FILED November 22, 2000 Cornelia G. Clark Clerk, Court of Appeals of Wisconsin NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. No. 99-1311-CR STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. COLLEEN B. DUNN, DEFENDANT-APPELLANT. APPEAL from a judgment and an order of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Affirmed. ¶1 SNYDER, J.1 On October 4, 1998, Colleen B. Dunn was arrested in Walworth county for operating a motor vehicle while under the influence of an intoxicant (OAWI), as a repeat offender, contrary to WIS. STAT. §§ 346.63(1)(a) 1 This case is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (1997-98). All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise stated. No. 99-1311-CR and 346.65(2). A blood alcohol sample was then seized which resulted in a prohibited blood alcohol test report. After Dunn s motion to suppress the alcohol test results was denied, she entered a plea to the OAWI charge.2 She appeals from the denial of her suppression motion and from the OAWI conviction. ¶2 After her arrest, Dunn was transported to the Lakeland Medical Center and was asked to submit to a blood sample withdrawal. The arresting officer requested a blood sample rather than a breath sample because [i]t is the policy of the sheriff s department that if a person is arrested for operating while intoxicated, if it is the second offense, which is a criminal offense, we take and draw blood. After Dunn refused to consent to a blood withdrawal, a blood sample was obtained at the officer s direction based upon department policy. During this time, an operating Intoxilyzer machine was available for breath sample test purposes. ¶3 Dunn concedes that the appellate issue, whether police can constitutionally require blood withdrawal for alcohol test purposes when an alternative breath analysis system is available, is legally identical to the issue presented in State v. Thorstad, 2000 WI App 199, ___ Wis. 2d ___, 618 N.W.2d 240.3 Based upon the Thorstad holding, we affirm the order denying Dunn s suppression motion and the OAWI judgment of conviction. 2 Dunn was also cited for a violation of WIS. STAT. § 346.63(1)(b), as a repeater based upon the test results, but stands convicted of the OAWI charge. 3 On October 12, 1999, Dunn moved this court to suspend her appeal pending release of Thorstad because the legal issue presented in this appeal is identical to that presented by the State s appeal in Thorstad. The Thorstad decision was released on August 17, 2000, and this court inquired whether Dunn wished to pursue her appeal in light of the decision, recommended for publication, being unfavorable to her appellate position. Dunn declined to withdraw the appeal but made no request to brief or distinguish the Thorstad holding, and makes no argument that State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), was not followed in her case. 2 No. 99-1311-CR ¶4 Dunn contends that State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), is no longer controlling law in Wisconsin concerning police obtaining a warrantless blood test. This is erroneous. Thorstad reaffirms the validity of Bohling and concludes that Bohling establishes the constitutional standard for the administration of a warrantless blood test in Wisconsin, that a warrantless blood sample taken at the direction of a law enforcement officer is permissible, that Bohling permits warrantless blood tests because the rapid dissipation of alcohol from the bloodstream constitutes exigent circumstances, and that exigent circumstances is an exception to the Fourth Amendment s warrant requirement. See Thorstad, 2000 WI App 199 at ¶6. Thorstad also reiterates that Bohling does not require that the subject of the blood test consent or voluntarily submit to the blood withdrawal. See Thorstad, 2000 WI App 199 at ¶10. We are duty bound to follow controlling precedent. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997). ¶5 Dunn cites to the holding in Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), and maintains that in Wisconsin a coerced blood sample is unconstitutionally unreasonable because the evidentiary significance of breath and blood samples is the same and that blood testing cannot be a police reflex. We reject the Nelson analysis because we are bound by the supreme court s holding in Bohling. See Thorstad, 2000 WI App 199 at ¶9. ¶6 Lastly, Dunn suggests in her reply brief that an officer has a constitutional duty to first request a breath sample because Bohling conditions the admission of warrantless blood sample evidence on the arrestee presenting no reasonable objection to the blood draw. We are unable to read Bohling to include such a duty and Dunn fails to cite to any such constitutional directive. Because 3 No. 99-1311-CR Thorstad controls the disposition of Dunn s appeal, we affirm the order denying the suppression motion and the judgment of conviction. By the Court. Judgment and order affirmed. This opinion will not be published. 809.23(1)(b)4. 4 See WIS. STAT. RULE

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