Warrantless Blood Draw – Driving under Influence of Drugs

State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10

court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply

Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993):

¶13      A majority of jurisdictions that have addressed this issue make no distinction between the dissipation of alcohol and drugs from the blood stream.  See, e.g., United States v. Edmo, 140 F.3d 1289, 1292 (9th Cir. 1998); People v. Ritchie, 181 Cal. Rptr. 773, 774-775 (Cal. Ct. App. 1982); State v. Strong, 493 N.W.2d 834, 837 (Iowa 1992); Holloman v. State, 820 So. 2d 52, 55 (Miss. Ct. App. 2002); State v. Steimel, 921 A.2d 378, 385 (N.H. 2007); State v. Hanson, 588 N.W.2d 885, 892-93 (S.D. 1999); State v. Baldwin, 37 P.3d 1220, 1224-25 (Wash. Ct. App. 2001); see also Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602, 623 (1989) (“Although the metabolites of some drugs remain in the urine for longer periods of time … the delay necessary to procure a warrant nevertheless may result in the destruction of valuable evidence.”).  But see State v. Jones, 895 P.2d 643, 644 (Nev. 1995); Rawlings v. Police Dep’t of Jersey City, 627 A.2d 602, 612 (N.J. 1993) (no exigent circumstances because cocaine can be detected in urine for two to five days).

¶14      We agree with the majority of jurisdictions that it is not necessary to distinguish between alcohol and drugs for purposes of the exigent circumstances exception.  We find the California Court of Appeal’s reasoning in Ritchie particularly persuasive.  In that case, the defendant was suspected of driving while under the influence of drugs.  …

…

¶16      We agree with the Ritchie court’s analysis.  Like alcohol, the amount of drugs present in the blood stream begins to dissipate following consumption.  Thus, the mere passage of time operates to destroy evidence of the defendant’s intoxication.  For this reason, exigent circumstances justified the warrantless draw of Malinowski’s blood.

The court stresses that the officer didn’t know “which controlled substance [Malinowski] had taken,” ¶18. However, the holding appears to be broader than that, because the court also observes that the “police cannot know which drugs an arrestee has taken without first testing the arrestee’s blood,” ¶17; and goes farther still: “Even if a suspect admits ingesting a particular drug, the information the suspect gives police may not be correct,” ¶17 n. 3.

Interestingly, the court expressly recognizes that the issue is one of “first impression” in the state – it’s not clear why it wasn’t set for disposition by a 3-judge panel, so it could be published. But because the decision was issued by a 1-judge panel, it can’t be published, and therefore has no prospect of binding effect. Nonetheless, because it’s an “authored” opinion, it can be cited for its “persuasive value,” § 809.23(3)(b).

On a point of appellate procedure note, the court’s reliance on foreign authority:

¶12      To date, no Wisconsin case has considered whether exigent circumstances permit a warrantless blood draw when police suspect that an impaired driver is under the influence of drugs rather than alcohol.  Because this is an issue of first impression, we may consider persuasive authority from other jurisdictions.  See Strozinsky v. School Dist. of Brown Deer, 2000 WI 97, ¶67, 237 Wis. 2d 19, 614 N.W.2d 443.