Field Research Paper

4160 words - 17 pages

Homicide by Intoxicated use of vehicle or firearm
Wis.Stat.Ann §940.09

Issue: Is the taking of a blood sample a violation of Defendants fourth amendment rights?
Rule: Wis.Stat.Ann §343.305(3) (West 2012) states (a) upon arrest of a person for violation of s. 346.63(1), (2m) or (5) or a local ordinance in conformity therewith, or for a violation of s. 346.63(2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or upon arrest subsequent to a refusal under par. (ar), a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2). Compliance with a request for one ...view middle of the document...

The Circuit Court, Trempealeau County, denied defendant’s motion to suppress, and defendant appealed. The Court of Appeals 159 Wis.2d 313 464 N.W. 2d 86, reversed. On petition for review, the Supreme Court, Cecil, J., held that (1) blood may be drawn as part of search incident to lawful arrest if police “reasonably suspect” that defendant’s blood contains evidence of crime, and (2) police had reasonable suspicion of criminal activity sufficient to support blood test, reversed, cause remanded.
On October 14, 1989, the defendant was involved in a multi-vehicle accident on Highway 53 just south of Osseo at approximately 6:00 p.m. The defendant was on a motorcycle traveling north and crossed over the center line by approximately one foot sideswiping a Ford Taurus causing it to go out of control and cross into the northbound lane at an angle. The Taurus was then struck broadside by a northbound car. Both occupants of the Taurus were killed and all four occupants of the other car were injured, two seriously. The defendant suffered a minor injury to his left ankle. After the defendant had been transported to the hospital and as the officers were conducting their investigation of the accident, they detected a very strong odor of intoxicants emanating from the group of cyclists with whom the defendant had been traveling. The police chief in his capacity as an EMT was assisting with the x-raying of the defendant stated he thought he smelled an intoxicant on the defendant. The defendant agreed to give a blood sample under the implied consent law. The test on the defendant had a blood alcohol level of .266. Under Wis.Stat. §885.235(1) (c), a blood alcohol level of .10 percent is prima facie evidence of intoxication. On March 8, 1990, the defendant moved the circuit court to suppress the blood alcohol test on the grounds that the blood sample on which the test was performed was collected in violation of the defendant’s fourth amendment right to be free of unreasonable searches and seizures. The State argued that the blood test did not violate the fourth amendment because there was probable cause to arrest the defendant for homicide by negligent operation of a motor vehicle and reason to suspect that the defendant had consumed alcoholic beverages. The circuit court agreed with the state’s reasoning and denied the defendant’s motion to suppress. The defendant sought leave to appeal the circuit court’s order on April 23, 1990.
The court of appeals concluded that the drawing of the blood sample constituted an illegal search under Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The court reasoned that under Schmerber and Winston, blood may not be drawn incident to an arrest unless the police have probable cause to believe that the defendant’s blood contains evidence of a crime and the police possess a warrant or an exception to the warrant requirement. Since...

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