STATE v. BESSERT, 2002 WI App 165

256 Wis.2d 693, 647 N.W.2d 467

Court of Appeals of Wisconsin.
No. 01-1144.
Opinion Released: May 1, 2002. Opinion Filed: May 1, 2002. This opinion will not be published.[*] See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from a judgment of the circuit court for Winnebago County: THOMAS J. GRITTON, Judge. Affirmed.

¶ 1. NETTESHEIM, P.J.[1]

James Bessert appeals from a forfeiture judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC) pursuant to Wis. Stat. § 346.63(1)(b). Bessert challenges the trial court’s ruling denying his motion to suppress evidence of a blood test. We affirm the judgment.[2]

¶ 2. The relevant facts are not in dispute. On August 29, 1999, Bessert was arrested for PAC and operating a motor vehicle while intoxciated.[3] Following the arrest, the police informed Bessert of his rights and obligations under the implied consent law. See Wis. Stat. § 343.305(4). In response, Bessert agreed to submit to a blood test. The result was a blood alcohol concentration of .22%.

¶ 3. Bessert brought a motion to suppress the blood test evidence, challenging the constitutionality of the implied consent law that permits the warrantless taking of a suspect’s blood sample. In addition, Bessert moved to suppress the warrantless testing of his blood sample. The core of his argument, renewed on appeal, was that the State does not have the constitutional option of requiring a suspect to submit to an intrusive blood test when a breath test with identical statutory evidentiary weight and admissibility is available. The trial court denied Bessert’s motions to suppress. The State and Bessert then entered into a stipulation as to the facts. Bessert pled no contest and he takes this appeal.

¶ 4. Bessert acknowledges that his challenges to the constitutionality of the implied consent law and the warrantless taking of his blood sample are currently governed by this court’s decision inState v. Thorstad, 2000 WI App 199, 238 Wis.2d 666, 618 N.W.2d 240 review denied, 2000 WI 121, 239 Wis.2d 310, 619 N.W.2d 93 (Wis. Oct. 17, 2000) (No. 99-1765-CR), cert. denied, Thorstad v. Wisconsin, 531 U.S. 1153
(U.S. Wis. Feb. 20, 2001) (No. 00-1145), which interpreted our supreme court’s decision in State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399
(1993). In Bohling, the supreme court held that a warrantless blood sample taken at the direction of a law enforcement officer is permissible if the following conditions are met:

(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.

Id. at 533-34 (footnote omitted).[4]

¶ 5. We acknowledge that the supreme court is revisiting this issue see State v. Krajewski, No. 99-3165-CR, unpublished order (WI App Dec. 5, 2000), review granted, 2001 WI 88, 246 Wis.2d 165, 630 N.W.2d 219
(Wis. May 8, 2001), and we have considered whether we should hold this case until the supreme court has issued its opinion. However, inKrajewski, the defendant registered an objection to the blood test based on a fear of needles. Id. at 2. That markedly sets this case off fromKrajewski. In this case, Bessert did not register any objection to the blood test. As a result, Bessert mounts a much broader assault, arguing that the implied consent law, as a matter of law, coerces a suspect’s consent. Bohling rejected that argument, and instead set out the criteria under which a warrantless blood draw would be constitutional. Bohling, 173 Wis.2d at 534. Bessert makes no argument that those criteria were not satisfied in this case.

¶ 6. We are not persuaded that the supreme court will be revisiting the constitutionality of the implied consent law in Krajewski. Rather, it appears the court will be examining if a blood draw survives the test of reasonableness under the Fourth Amendment when the suspect has expressed a fear of needles and asked for a breath test rather than a blood draw. Bessert cannot make that argument under the facts of this case.

¶ 7. As to his challenge to the warrantless testing of his blood sample, Bessert acknowledges this court’s recent holding in State v.VanLaarhoven, 2001 WI App 275, 248 Wis.2d 881, 637 N.W.2d 411, that a warrant is not required for the testing of evidence otherwise lawfully seized. Id. at ¶ 17. Bessert argues that VanLaarhoven is not satisfied because his blood sample was not lawfully seized in the first instance because of the unconstitutionality of the implied consent law. But, as we have noted, Thorstad says otherwise.

¶ 8. We reject Bessert’s constitutional challenges. We affirm the judgment of conviction.

By the Court. — Judgment affirmed.