Supreme Court OKs Forced Blood - After 3 Breath Tests
Information courtesy of Lawrence Taylor - DUIblog
On January 18, 2005, the U.S. Supreme Court declined to review a state supreme court case endorsing the nonconsensual extraction of a blood sample from a DUI suspect -- after he had already consented to three earlier breath tests.
On February 19, 2002, police in Wisconsin pulled over Jacob Faust as he left a bar. Faust admitted that he had five brandies and failed the field sobriety tests. He voluntarily submitted to a roadside breath test; the results indicated a blood-alcohol concentration of .13% -- well above Wisconsin's .08% legal limit. He was arrested and, at the police station, agreed to take another breath test. Two separate tests on the breathalyzer indicated BACs of .09%.
The officer then asked Faust to submit to the withdrawal of a blood sample. Having already taken three breath tests, Faust finally refused further testing. He was immediately served with a notice of license suspension for refusing and taken to a hospital where a blood sample was drawn. The result of the blood test was .10%, almost the same as at the station.
At a suppression hearing, the officer admitted it was not departmental policy to demand further tests and he did not suspect the use of drugs: he simply wanted "additional evidence" because Faust was only .01% over the limit. The trial court granted the motion to suppress, and the Court of Appeals affiirmed:
"Once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exists."
In a 4-3 decision, the Wisconsin Supreme Court reversed, holding that "(t)he nature of the evidence sought -- that is, the rapid dissipation of alcohol from the bloodstream -- not the existence of other evidence, determines the exigency." (Of course, by this reasoning the police can take as many chemical tests -- 15 or 20 -- as they want; there is almost no limit since alcohol