State v. Melvin P. Vongvay, 2015AP1827-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity (including briefs)
Wisconsin Stat. § 885.235(1g) makes a blood alcohol test automatically admissible in a drunk driving prosecution if the blood is drawn within three hours of the alleged driving. The court here holds that an officer who was running up against the end of that three-hour window was justified in drawing blood without seeking a warrant.
Vongvay was stopped for speeding and ultimately arrested for drunk driving. Vongvay told the officer that he had no prior OWI arrests; the dispatch computer system was down so the officer could not verify this. First-offense OWI is, of course, not a crime in Wisconsin, so at the time the officer did not believe he had grounds to get a warrant.
(Note that this situation should not arise in future cases. 2015 Wisconsin Act 183, which went into effect in March, amended Wis. Stat. § 968.13(1)(b) to authorize warrants for all OWI offenses, even first-time civil forfeitures.)
A bit more than two hours after stopping Vongvay (who was still in custody because he could not post bond on the citations), the officer received word from dispatch that Vongvay did have a prior. After consulting with his chief and an ADA, the officer read Vongvay the informing the accused form and Vongvay refused to consent to a blood draw. The officer then took Vongvay to a medical facility where his blood was taken without his consent just a few minutes shy of three hours after his stop.
On appeal, Vongvay notes that in the absence of consent a warrantless blood draw requires both probable cause and exigent circumstances. See Missouri v. McNeely, 133 S. Ct. 1552 (2013). Vongvay concedes probable cause, but argues that there were no exigent circumstances (McNeely having held that the natural dissipation of alcohol in the blood does not constitute exigent circumstances per se). The court disagrees, also relying on McNeely, which noted that differing factual circumstances and warrant procedures may create exigency in the individual case:
In McNeely, the Court explained that “longer intervals may raise questions about the accuracy of the [blood alcohol concentration] calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.” McNeely, 133 S. Ct. at 1563.
Goetsch followed all the proper procedures after stopping Vongvay, and he did not improperly delay in obtaining a warrant. Goetsch specifically asked Vongvay if he had ever been arrested for an OWI, which Vongvay denied. Goetsch’s lack of knowledge of Vongvay’s prior OWI was a result of the TIME system being inoperable. Had Vongvay acknowledged that he had a prior OWI, Goetsch could have easily begun the process of obtaining a search warrant for the blood draw immediately upon arriving at the police station. When Vongvay was arrested and when he was processed at the police station, Goetsch did not have probable cause to believe that Vongvay had committed a criminal offense. See State v. Goss, 2011 WI 104, ¶22 & n.19, 338 Wis. 2d 72, 806 N.W.2d 918. Once Goetsch learned that Vongvay had a prior OWI, over two hours after the initial traffic stop, he reasonably concluded that if he completed the warrant application process he would have risked the destruction and admissibility of the evidence. Under the circumstances, Goetsch acted reasonably, which is “the touchstone of the Fourth Amendment.” Tullberg, 359 Wis. 2d. 421, ¶51.
(¶¶10-11).
