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 will continue to dissipate for hours.) Amazingly, the Court further found that the police had a right to additional tests since they can’t predict whether a breath test will be found reliable in court. (In a footnote (fn28), the Wisconsin Supreme Court may have noted the real reason for this blatantly dishonest opinion: "There were 292 people killed and 6,570 injured as a result of alcohol-related motor vehicle crashes in Wisconsin during the year 2002…" In other words, the ends justify the means — the Constitution notwithstanding.) One of the three dissenting justices observed:
Without consent, without a warrant, and without exigent circumstances, the forced blood test in the present case violated the United States Constitution… The majority’s argument is essentially that because law enforcement officers do not know what will happen at trial (and no one does, of course), it was reasonable for them to take as many valid tests of the suspect’s blood alcohol as they thought necessary to sustain a conviction."
The U.S. Supreme Court denied a writ of certiorari (refused to hear the case). Wisconsin v. Faust, #04-471. Police are now apparently constitutionally free to give blood-alcohol tests as many times as they wish.