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COURT OF APPEALS
DECISION                                                                                      NOTICE
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
October 19, 2000
                                                                                                                                                                A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                                petition  to  review  an  adverse  decision  by  the
                                                                                              Cornelia G. Clark
                                                                                                                                                                Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                              Clerk, Court of Appeals
                                                                                                                                                                RULE 809.62.
                                                                                              of Wisconsin
No.                                                                                           99-1384-CR
STATE OF WISCONSIN                                                                            IN COURT OF APPEALS
                                                                                              DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RICHARD A. EDWARDS,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
SARAH B. O’BRIEN, Judge.  Affirmed.
¶1                                                                                            DEININGER, J.1    Richard Edwards appeals a judgment convicting
him of  operating  a  motor  vehicle  while  under  the  influence  of  an  intoxicant
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (1997-98).
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.




No. 99-1384-CR
(OMVWI).    He claims the trial court erred in denying his motion to suppress
evidence of the results of a blood test that was administered following his arrest.
Because the issues Edwards raises in this appeal were decided in the State’s favor
in  State  v.  Thorstad,                                                                    2000  WI  App  199,  No.  99-1765-CR,  we  affirm  the
conviction.
BACKGROUND
¶2                                                                                          A City of Sun Prairie police officer arrested Edwards for OMVWI
and  transported  him to  have  a  sample  of  his  blood  withdrawn  by a  “trained
medical  professional.”    The  sample  was  analyzed  at  the  State  Laboratory  of
Hygiene, which reported an alcohol concentration of 0.213%.   Edwards moved to
suppress evidence of the blood test result because the blood sample was taken
without a warrant, and because it constituted an unreasonable seizure due to the
availability  of  an  alternative  means  of  obtaining  the  evidence,  specifically,  a
breath test.
¶3                                                                                          No evidentiary hearing was conducted, and the trial court denied the
suppression motion after hearing arguments of counsel.   The trial court concluded
that the taking of the blood sample from Edwards did not violate the Fourth
Amendment because he had given implied consent to the testing of his blood, and
because  the  taking  of  the  sample  was  justified  by  exigent  circumstances.
Subsequently,  Edwards  pleaded  no  contest  to  OMVWI,  and  he  now  appeals,
challenging the denial of the suppression motion.2
2  See WIS. STAT. 971.31(10).
2




No. 99-1384-CR
ANALYSIS
¶4                                                                                              The  question  presented  by  this  appeal  is  a  purely  legal  one,
specifically, whether a police officer violates the Fourth Amendment’s prohibition
against unreasonable searches and seizures when he or she obtains a blood sample
from an OMVWI arrestee, even though the arresting officer could have obtained a
breath test instead.   We decide the issue de novo, owing no deference to the trial
court’s conclusion on the matter.   See State v. Edgeberg, 188 Wis. 2d 339, 344-45,
524 N.W.2d 911 (Ct. App. 1994).
¶5                                                                                              Edwards argues that “blood testing cannot be a police reflex.”   He
claims that the holding in Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir.), cert.
denied, 525 U.S. 981 (1998), establishes that the operation of Wisconsin’s implied
consent law, which permits a police officer to designate whether a person arrested
for OMVWI should be subjected to a blood test as opposed to a breath test, may
result in unreasonable seizures under the Fourth Amendment.   He points out that
results of the testing of a driver’s blood or breath for alcohol concentration have
identical evidentiary impact.   See WIS. STAT. 885.235(1g).   Thus, according to
Edwards, a police choice to draw blood instead of obtaining a breath sample is
unreasonable because the blood test is more “intrusive.”3
¶6                                                                                              We have recently considered, and rejected, precisely the arguments
Edwards makes in this appeal.   See State v. Thorstad, 2000 WI App 199, No. 99-
3  Edwards summarizes his argument as follows:                                                  “Where, as here, there is a less-
intrusive and equally effective and available means of gathering evidence of intoxication and
prohibited alcohol concentration through at least equally available means, there can be no
justification for requiring the suspect to submit to blood analysis.”
3




No. 99-1384-CR
1765-CR.4    We concluded in Thorstad that, so long as the four requirements
outlined by the supreme court in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d
399  (1993), are met, there is no Fourth Amendment violation when the police
obtain a blood sample from an OMVWI arrestee.5   We specifically rejected the
Nelson v. City of Irvine analysis, concluding that we are bound by the supreme
court’s holding in Bohling.  See Thorstad, 2000 WI App 199 at ¶9.
¶7                                                                                                     Edwards asserts that Bohling is distinguishable because, there, the
defendant “created his own ‘exigency’” by refusing to submit to a proffered breath
test.   Edwards also argues that Bohling supports his position in this case because
the supreme court concluded that a delay in taking a blood sample may imperil the
evidence of blood concentration.   He claims that “it is obvious that breath testing
is vastly quicker than blood sampling.”   The problem with these arguments is that
there is no factual basis in the record to support them.    We do not know, for
instance, whether Edwards requested a breath test, or was offered one and refused
4  After this appeal was submitted for decision, Edwards moved to defer its consideration
and disposition pending the release of this court’s opinion in State v. Thorstad.  Edwards asserted
in his motion that “[t]he legal issue presented in this appeal is identical to that presented by the
State’s appeal in Thorstad.”  Further, Edwards informed us that he “believes that a decision in the
Thorstad appeal will be controlling precedent for that issue in this case and will, consequently,
control the decision of this case.”
5  The Bohling requirements are as follows:
(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.
State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993) (footnote omitted).
4




No. 99-1384-CR
it, or whether the police could have obtained a breath test more quickly than the
blood sample.
¶8                                                                                    Edwards  claims,  however,  that  the  lack  of  a  proper  evidentiary
record should not be held against him because the motion he filed requested an
evidentiary hearing.    We disagree.    During argument on Edward’s motion, the
prosecutor told the court, “I think we can dispose of this motion on a legal basis
without getting anywhere on the evidence.   I don’t think there is any dispute that
the officers requested that Mr. Edwards submit to a blood draw and ultimately that
blood that was taken was tested.”   Edwards’s counsel did not disagree with the
prosecutor’s statement, and made no objection to the court proceeding to decide
the motion without an evidentiary hearing.
CONCLUSION
¶9                                                                                    Because we conclude that the disposition of this appeal is controlled
by our holding in State v. Thorstad, we affirm the appealed judgment.
By the Court.—Judgment affirmed.
                                                                                      This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                             (b)4.
5

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