State v. Richard A. Walford

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COURT OF APPEALS DECISION DATED AND FILED March 20, 2003 Cornelia G. Clark Clerk of Court of Appeals Appeal No. 02-2570-CR STATE 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. Cir. Ct. No. 99-CT-172 IN COURT OF APPEALS DISTRICT IV STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. RICHARD A. WALFORD, DEFENDANT-APPELLANT. APPEAL from a judgment of the circuit court for Green County: JAMES R. BEER, Judge. Affirmed. ¶1 DYKMAN, J.1 Richard Walford appeals from a judgment of conviction for a violation of WIS. STAT. § 346.63(1)(a), operating while intoxicated, as a second offense. He asserts that the trial court erred when it 1 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2001-02). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. No. 02-2570-CR denied his motions to suppress the results the blood draw taken incident to his arrest. We affirm. ¶2 The facts are not in dispute. On September 25, 1999, Deputy Charles Worm of the Green County Sheriff s Department stopped Walford after observing him make a left turn while his right turn signal was activated and his emergency flashers were on. While Worm was talking to Walford, he noticed that Walford s eyes were bloodshot, his speech was extremely slurred, and there was a strong smell of intoxicants on his breath. Walford failed field sobriety tests and a preliminary breath test reading was .24 percent. Deputy Worm then took Walford to the Monroe Clinic emergency room for a blood draw. When they arrived, Deputy Worm read Walford the Informing the Accused form in compliance with WIS. STAT. § 343.305(4)2 and Walford submitted to the blood draw. The sample was sent to the Laboratory of Hygiene where it was analyzed and determined that Walford s blood alcohol level was 0.259 percent. ¶3 Walford 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, Walford entered a no contest plea to operating while intoxicated. The prohibited blood alcohol content charge was dismissed. Walford appeals. ¶4 Walford does not challenge the probable cause for his arrest. Thus we are presented solely with questions of law regarding the constitutionality of 2 Under WIS. STAT. § 343.305(2), any person operating a motor vehicle is deemed to have given consent to tests to determine the presence or amount of alcohol in the person s breath or blood when the person is arrested for a violation of WIS. STAT. § 346.63(1). Refusal to submit to the tests results in license revocation. Section 343.305(3)-(10). 2 No. 02-2570-CR WIS. STAT. § 343.305(4) and the analysis of Walford 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). ¶5 Walford concedes that under Krajewski, it is 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 consumption, regardless of the existence of a breathalyzer or other less intrusive test. Krajewski, 2002 WI 97 at ¶¶63-64. He also acknowledges that we rejected the argument that the implied consent law, WIS. STAT. § 343.305(2), is unconstitutionally coercive 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 a 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 ¶¶1718. Nor is a separate search warrant required before a blood sample drawn without consent is analyzed. State v. Riedel, 2003 WI App 18, ___Wis. 2d ___, 656 N.W.2d 789. ¶6 The trial court properly denied Walford s motions to suppress the results of his blood test and correctly concluded that the implied consent statute is not unconstitutional. We therefore affirm. 3 No. 02-2570-CR By the Court. Judgment affirmed. Not recommended for publication in the official reports. See WIS. STAT. RULE 809.23(1)(b)4. 4

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