drunk-driving related violation in Wisconsin

2014See Schmerber, 384 U.S. at 770 (noting that "the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol"); State v. Erickson, 2003 WI App 43, ¶ 12 , 260 Wis. 2d 279 , 659 N.W.2d 407 (noting that "in the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving related violation or crime" necessarily satisfies the first and second prongs of Bohling). (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested fo

2014See Schmerber, 384 U.S. at 770 (noting that "the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol"); State v. Erickson, 2003 WI App 43, ¶ 12 , 260 Wis. 2d 279 , 659 N.W.2d 407 (noting that "in the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving related violation or crime" necessarily satisfies the first and second prongs of Bohling). (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested fo

2014Further, "[i]t is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not." Id. (quoting State v. Paszek, 50 Wis. 2d 619, 624-25 , 184 N.W.2d 836 (1971)). ¶22 In the context of an arrest for a drunk-driving related violation or crime, a law enforcement officer may consider numerous factors in order to determine probable cause to arrest.

2014Further, "[i]t is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not." Id. (quoting State v. Paszek, 50 Wis. 2d 619, 624-25 , 184 N.W.2d 836 (1971)). ¶22 In the context of an arrest for a drunk-driving related violation or crime, a law enforcement officer may consider numerous factors in order to determine probable cause to arrest.

2014Bohling, 173 Wis. 2d at 534 n.1 (citing State v. Bentley, 92 Wis. 2d 860, 863-64 , 286 N.W.2d 153 (Ct. App. 1979)).

2014Bohling, 173 Wis. 2d at 534 n.1 (citing State v. Bentley, 92 Wis. 2d 860, 863-64 , 286 N.W.2d 153 (Ct. App. 1979)).

2014These cases illustrate that "[p]robable cause is a 'flexible, common-sense measure of the plausibility of particular conclusions about human behavior.'" Lange, 317 Wis. 2d 383, ¶20 (quoting State v. Higginbotham, 162 Wis. 2d 978, 989 , 471 N.W.2d 24 (1991)). ¶23 Here, the facts known to Officer Asselin are undeniably sufficient to support a finding of probable cause that Kennedy committed a drunk-driving related violation or crime.

2014These cases illustrate that "[p]robable cause is a 'flexible, common-sense measure of the plausibility of particular conclusions about human behavior.'" Lange, 317 Wis. 2d 383, ¶20 (quoting State v. Higginbotham, 162 Wis. 2d 978, 989 , 471 N.W.2d 24 (1991)). ¶23 Here, the facts known to Officer Asselin are undeniably sufficient to support a finding of probable cause that Kennedy committed a drunk-driving related violation or crime.

2014Further, "[i]t is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not." Id. (quoting State v. Paszek, 50 Wis. 2d 619, 624-25 , 184 N.W.2d 836 (1971)). ¶22 In the context of an arrest for a drunk-driving related violation or crime, a law enforcement officer may consider numerous factors in order to determine probable cause to arrest.

2014Further, "[i]t is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not." Id. (quoting State v. Paszek, 50 Wis. 2d 619, 624-25 , 184 N.W.2d 836 (1971)). ¶22 In the context of an arrest for a drunk-driving related violation or crime, a law enforcement officer may consider numerous factors in order to determine probable cause to arrest.

2002(Footnote omitted.) 5 The court in State v. Thorstad, 2000 WI App 199, ¶ 5 , 238 Wis. 2d 666 , 618 N.W.2d 240 , citing Schmerber v. California, 384 U.S. 757, 769-70 (1966), recognized the existence of "exigent circumstances" in drunk driving situations "because the human body rapidly eliminates alcohol from the system, 'the delay *927 necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.'" 6 We also reject Riedel's assertion that State v. Betterley, 191 Wis. 2d 406 , 629 N.W.2d 216 (1995), and Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1

1993This conclusion rests on four supports: (1) a logical reading of Schmerber , (2) the Supreme Court's decision in Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989), (3) interpretations of Schmerber by other courts, and (4) an examination of Wisconsin's interest in enforcing its drunk driving laws.

2021Howes, 373 Wis. 2d 468, ¶24 . ¶85 When exigent circumstances are present in an OWI case, there are four additional considerations that bear on the reasonableness of the search. (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.

2021Id., ¶25 (quoting State v. Kennedy, 2014 WI 132, ¶17 , 359 Wis. 2d 454 , 856 N.W.2d 834 ). "[C]lear indication" is supported by the same facts that yield probable cause to arrest.

2017And, "the test for determining 10 No. 2014AP1870-CR the existence of exigent circumstances is an objective one." Robinson, 327 Wis. 2d 302, ¶30 . ¶25 If exigent circumstances are present, we have distilled four additional requirements that a warrantless blood draw in a drunk driving case must satisfy to be reasonable under the Fourth Amendment: (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

2014See, e.g., Gregg v. State, 374 So. 2d 1301, 1303-04 (Miss. 1979) (reasoning that the metabolism of alcohol in the blood alone constitutes a sufficient exigency to justify a warrantless search); State v. Baker, 502 A.2d 489, 493 (Me. 1985) (holding same); State v. Woolery, 116 Idaho 368, 370 , 775 P.2d 1210 (1989), overruled on other grounds by State v. Wulff, 337 P.3d 575 (Idaho 2014), abrogated by McNeely, 133 S. Ct. 1552 (holding same). 15 No. 2011AP1673-CRNM ¶38 As a result of our decision in Bohling, a warrantless nonconsensual blood draw taken at the direction of a police officer was cons

2014See, e.g., Gregg v. State, 374 So. 2d 1301, 1303-04 (Miss. 1979) (reasoning that the metabolism of alcohol in the blood alone constitutes a sufficient exigency to justify a warrantless search); State v. Baker, 502 A.2d 489, 493 (Me. 1985) (holding same); State v. Woolery, 116 Idaho 368, 370 , 775 P.2d 1210 (1989), overruled on other grounds by State v. Wulff, 337 P.3d 575 (Idaho 2014), abrogated by McNeely, 133 S. Ct. 1552 (holding same). 15 No. 2011AP1673-CRNM ¶38 As a result of our decision in Bohling, a warrantless nonconsensual blood draw taken at the direction of a police officer was cons

2014See, e.g., Gregg v. State, 374 So. 2d 1301, 1303-04 (Miss. 1979) (reasoning that the metabolism of alcohol in the blood alone constitutes a sufficient exigency to justify a warrantless search); State v. Baker, 502 A.2d 489, 493 (Me. 1985) (holding same); State v. Woolery, 116 Idaho 368, 370 , 775 P.2d 1210 (1989), overruled on other grounds by State v. Wulff, 337 P.3d 575 (Idaho 2014), abrogated by McNeely, 133 S. Ct. 1552 (holding same). 15 No. 2011AP1673-CRNM ¶38 As a result of our decision in Bohling, a warrantless nonconsensual blood draw taken at the direction of a police officer was cons

2014However, McNeely does state that "[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so."15 ¶101 To obtain a warrant, probable cause to search the body is of course required.16 McNeely permits an exception to the 13 See Bohling, 173 Wis. 2d at 537 . 14 State v. Seibel, 163 Wis. 2d 164, 186 , 471 N.W.2d 226 (1991) (Abrahamson, J., dissenting). 15 Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013).

2014However, McNeely does state that "[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so."15 ¶101 To obtain a warrant, probable cause to search the body is of course required.16 McNeely permits an exception to the 13 See Bohling, 173 Wis. 2d at 537 . 14 State v. Seibel, 163 Wis. 2d 164, 186 , 471 N.W.2d 226 (1991) (Abrahamson, J., dissenting). 15 Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013).

2002NOTES [†] Petition to review filed. [1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. [2] "[A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (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 m

2002NOTES [†] Petition to review filed. [1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. [2] "[A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (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 m

2002(Footnote omitted.) 5 The court in State v. Thorstad, 2000 WI App 199, ¶ 5 , 238 Wis. 2d 666 , 618 N.W.2d 240 , citing Schmerber v. California, 384 U.S. 757, 769-70 (1966), recognized the existence of "exigent circumstances" in drunk driving situations "because the human body rapidly eliminates alcohol from the system, 'the delay *927 necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.'" 6 We also reject Riedel's assertion that State v. Betterley, 191 Wis. 2d 406 , 629 N.W.2d 216 (1995), and Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1

2002(Footnote omitted.) 5 The court in State v. Thorstad, 2000 WI App 199, ¶ 5 , 238 Wis. 2d 666 , 618 N.W.2d 240 , citing Schmerber v. California, 384 U.S. 757, 769-70 (1966), recognized the existence of "exigent circumstances" in drunk driving situations "because the human body rapidly eliminates alcohol from the system, 'the delay *927 necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.'" 6 We also reject Riedel's assertion that State v. Betterley, 191 Wis. 2d 406 , 629 N.W.2d 216 (1995), and Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1

2002(Footnote omitted.) 5 The court in State v. Thorstad, 2000 WI App 199, ¶ 5 , 238 Wis. 2d 666 , 618 N.W.2d 240 , citing Schmerber v. California, 384 U.S. 757, 769-70 (1966), recognized the existence of "exigent circumstances" in drunk driving situations "because the human body rapidly eliminates alcohol from the system, 'the delay *927 necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.'" 6 We also reject Riedel's assertion that State v. Betterley, 191 Wis. 2d 406 , 629 N.W.2d 216 (1995), and Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1