County of Milwaukee v. Alpesh Shah, 2015AP1581, District 1, 8/16/16 (1-judge opinion; ineligible for publication); case activity (including briefs)
Shaw was convicted of operating a motor vehicle with a restricted controlled substance in his blood pre-McNeely. He challenged the warrantless draw of his blood because there were no exigent circumstances–THC doesn’t dissipate like alcohol, and the deputy had plenty of time to get a warrant. Moreover, the State did not charge him with operating while under the influence, so dissipation wasn’t even relevant. The State only need to show that THC was present in his blood, not that a particular amount of THC was in his blood.
¶21 While Shah is correct that the level of a restricted controlled substance is generally irrelevant to the charge of operating a motor vehicle with a restricted controlled substance in the blood, the level could be relevant to a charge of operating a motor vehicle while under the influence of a controlled substance, where the County would need to prove impairment. That the County did not ultimately proceed on an operating a motor vehicle while under the influence of a controlled substance charge is irrelevant. The question here is whether, at the time of Shah’s seizure, there was a reasonable belief that “a delay in procuring a warrant would … risk the destruction of evidence”—that is, the dissipation of marijuana in Shah’s blood. See Robinson, 327 Wis. 2d 302, ¶30. Accordingly, based on our review of the record, we conclude that under Bohling—the law at the time Shah was stopped by [Deputy] Leranth—exigent circumstances permitted a warrantless, non-consensual blood draw from a person arrested for operating a motor vehicle while under the influence of a controlled substance.
¶22 Nevertheless, even if Bohling does not permit warrantless, nonconsensual blood draws where drugs alone are implicated, we would still affirm.
¶23 Shah informed [Deputy] Jarvis that he had consumed four to five drinks, ending at approximately 1:00 a.m. That admission, combined with Shah’s driving at a high rate of speed, passing two marked squad cars, and his glassy and bloodshot eyes is sufficient to warrant a reasonable officer to believe that Shah was under the influence of alcohol.
