STATE v. MUNSCH, 99-1908-CR (Wis.Ct.App. 12-27-2000)

Court of Appeals of Wisconsin.
Case No. 99-1908-CR.
Opinion Released: December 27, 2000 Opinion Filed: December 27, 2000

This opinion will not be published.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: ROBERT HAWLEY, Judge. Affirmed.

¶ 1. ANDERSON, J.[1]

James A. Munsch appeals from his conviction for a second offense of operating a motor vehicle while intoxicated in violation of Wis. Stat. § 346.63(1)(a). He is challenging the trial court’s refusal to suppress the results of a blood draw performed to gain evidence of his blood alcohol concentration. On appeal, he contends that the blood draw was an “unreasonable” search and seizure because the arresting officer had a less intrusive means of obtaining evidence of his blood alcohol concentration.

¶ 2. Prior to Munsch filing his reply brief, we decided State v.Thorstad, 2000 WI App 199, 238 Wis.2d 666, 618 N.W.2d 240, review denied, ___ Wis.2d ___, 619 N.W.2d 93 (Wis. Oct. 17, 2000) (No. 99-1765-CR). In Thorstad, we were presented with the same issue that was raised by Munsch. We held that the blood draw “was admissible because it met the constitutional requirements for warrantless blood tests set out in [State v.] Bohling.” Thorstad, 2000 WI App 199 at ¶ 1 (citingState v. Bohling, 173 Wis.2d 529, 533-34, 494 N.W.2d 399 (1993)).

¶ 3. In lieu of a reply brief, Munsch filed a letter advising this court that he “cannot ethically submit a reply brief and argue that the trial court erred in denying his suppression motions in light of the current state of the law.” We have independently reviewed the record in this appeal as well as the written legal argument submitted by Munsch and the State before the publication of Thorstad, and we conclude thatThorstad directly governs this appeal. Therefore, we affirm.

¶ 4. It is a rare occasion for appellate counsel to concede that new authority is factually indistinguishable from the case on appeal and controls the disposition of the appeal. We take the opportunity to commend Attorney

Michele A. Tjader, appellate counsel for Munsch, for her adherence to the high ethical standards of this profession.