COUNTY OF COLUMBIA v. LINDE-RAY, 2003 WI App 1

259 Wis.2d 482, 655 N.W.2d 546

County of Columbia, Plaintiff-Respondent v. Cheryl Linde-Ray, Defendant-Appellant.

Court of Appeals of Wisconsin.
Appeal No. 02-0535.
November 14, 2002. This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

APPEAL from a judgment of the circuit court for Columbia County: JAMES O. MILLER, Judge. Affirmed.

¶ 1. LUNDSTEN, J.[1]

[1] This appeal is decided by one judge pursuant to Wis. Stat. §752.31(2)(b) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

Cheryl Linde-Ray appeals a judgment of the circuit court convicting her of operating while intoxicated as a first offense. Linde-Ray argues that the trial court improperly denied her motions to suppress. We disagree and affirm.

Background¶ 2. Linde-Ray filed a number of motions to suppress before the trial court, two of which are at issue here. One motion alleged that the evidence obtained from a blood draw was unreasonably obtained because a less intrusive means, i.e., a breath test, was available to the officers. The second motion alleged that the evidence from the blood draw should be suppressed on the grounds that exigent circumstances did not exist to justify seizure without a warrant.

Discussion¶ 3. Linde-Ray raises two issues in her appellate brief. One, whether police may draw blood, without a warrant, from a driver arrested for drunk driving when a statutory breath test could have been administered instead, and two, whether the police may, without a warrant, subsequently analyze the blood drawn from a person who has been arrested for drunk driving.

¶ 4. Linde-Ray concedes that the first issue is controlled by Statev. Thorstad, 2000 WI App. 199, ¶ 17, 238 Wis.2d 666, 618 N.W.2d 240. The ruling in Thorstad was recently upheld by the supreme court in Statev. Krajewski, 2002 WI 97, ¶ 63, ___ Wis.2d ___, 648 N.W.2d 385. “The court of appeals is bound by the prior decisions of the Wisconsin Supreme Court.” Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339
(Ct.App. 1979).

¶ 5. Linde-Ray concedes that the second issue is controlled by Statev. VanLaarhoven, 2001 WI App. 275, ¶ 17, 248 Wis.2d 881, 637 N.W.2d 411. “[T]he court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.” Cook v. Cook, 208 Wis.2d 166, 190, 560 N.W.2d 246 (1997). Therefore, we affirm on both issues.

By the Court. — Judgment affirmed.