State v. Christina Marie Wiederin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 15, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2020AP2006-CR Cir. Ct. No. 2019CF44

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTINA MARIE WIEDERIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for St. Croix County:
R. MICHAEL WATERMAN, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. This case arises from a 2018 warrantless blood draw that
police ordered to be performed on Christina Wiederin while she was unconscious
in the hospital after she was involved in a fatal car accident. The circuit court denied
Wiederin’s motion to suppress the blood test results, concluding that circumstances
No. 2020AP2006-CR

the officers faced at the crash scene and at the hospital were “the epitome of exigent
circumstances” that justified a warrantless blood draw.

¶2 On appeal, Wiederin argues that the circuit court erred by concluding
that her warrantless blood draw was justified by exigent circumstances. Wiederin
asserts that the officers had multiple opportunities to read her the Informing the
Accused form and to obtain her consent to a blood draw. She further argues that
there was nothing preventing the officers from timely applying for a warrant. Based
on the totality of the circumstances, we conclude that exigent circumstances
justified the warrantless blood draw. Accordingly we affirm.1

BACKGROUND

¶3 On December 21, 2018, at approximately 11:10 p.m., police were
dispatched to a report of a vehicle driving the wrong way on a divided highway near
New Richmond. Shortly thereafter, another dispatch reported a head-on collision.
Deputy Jeff Hillstead arrived at the scene of the crash and observed a white vehicle
on the road and a black vehicle on the median. Hillstead further observed that the
driver of the white vehicle showed no signs of life.

¶4 Deputy Hillstead spoke to witnesses on the scene who reported seeing
the black vehicle traveling the wrong direction on the highway. Hillstead identified
the driver of the black vehicle as Wiederin. Wiederin stated that she had been
drinking but did not know how much alcohol she had consumed. Hillstead observed

1
In the alternative, the State argues that even if exigent circumstances did not justify the
blood draw, the results were properly not suppressed because an officer could have relied in good
faith on the implied consent law to justify the blood draw. We need not address this issue because
we agree with the circuit court that exigent circumstances justified the warrantless blood draw. See
Miesen v. DOT, 226 Wis. 2d 298, 309, 594 N.W.2d 821 (Ct. App. 1999) (court of appeals “should
decide cases on the narrowest possible grounds”).

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that Wiederin spoke softly and appeared to be in serious condition. He also
observed a bottle sticking out of drawstring bag that was located on the passenger
side floor of the vehicle, but he could not determine if it was an alcohol bottle.

¶5 Fire department personnel arrived on the scene and after about thirty
minutes, they were able to extricate Wiederin from her vehicle. Once Wiederin was
out of her vehicle, law enforcement asked emergency personnel if they would
conduct a legal blood draw if Wiederin consented to it; however, a medic refused
because medical personnel did not want to delay medical treatment in order to
perform a blood draw. Wiederin was transported to a hospital in St. Paul,
Minnesota, at 12:16 a.m.

¶6 Sergeant Thomas Williams drove to the sheriff’s department to obtain
a blood test kit and then drove to the hospital where Wiederin was transported,
arriving at 1:05 a.m. Law enforcement investigating at the scene of the accident
discovered that the drawstring bag contained a bottle of rum “that was over half
gone,” and a bottle of Diet Coke. A plastic sandwich baggy with a trace amount of
suspected marijuana and a “one-hitter pipe commonly used to smoke marijuana”
were also found. Law enforcement relayed this information to Williams by phone
prior to his arrival at the hospital.

¶7 When Sergeant Williams arrived at the hospital, he was told that a
blood draw was not possible as Wiederin was “in imaging,” and she would be taken
into surgery immediately thereafter. After Williams explained the severity of the
crash and the importance of the blood draw to the attending nurse, the nurse
contacted another nurse in imaging who said that Williams could see Wiederin
before she went into surgery. Williams learned, however, that Wiederin had been
administered drugs that were causing her to go in and out of consciousness.

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¶8 When Sergeant Williams got to imaging, he observed that Wiederin’s
eyes were open. Williams said Wiederin’s name, and she responded, “hi.” Williams
proceeded to read to Wiederin the Informing the Accused form and requested a
blood sample. Wiederin, however, became unconscious and did not respond.

¶9 Sergeant Williams believed exigent circumstances requiring the blood
draw at that time existed because Wiederin was about to be taken into surgery and,
after that occurred, there may be no later opportunity for a timely blood draw.
Williams therefore asked a nurse to conduct a blood draw, which occurred at
approximately 2:00 a.m. The blood sample revealed an alcohol concentration of
0.222, as well as the presence of 7.9 ng/mL of Delta-9 THC, a restricted controlled
substance.

¶10 Sergeant Williams testified that he did not seek a search warrant
because when a suspect is conscious, like Wiederin was at the scene, the sheriff
department’s policy was to ask for consent prior to obtaining a warrant. Moreover,
Williams stated that no other officers were available to apply for a search warrant.
Williams further testified that when he went to the hospital, he planned to ask
Wiederin for a blood sample, and if she refused, he would apply for a search warrant.
Williams explained that, to the best of his knowledge, a Wisconsin officer who
wanted to obtain a search warrant in Minnesota would have to draft a warrant;
contact the St. Paul watch commander, who in turn would place the Wisconsin
officer in touch with someone to assist with an electronic warrant application; and
then find a judge to sign the warrant. Williams explained that he had never applied
for a Minnesota warrant and he did not know how long the process would take to
obtain one.

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¶11 The State ultimately charged Wiederin with eight crimes: homicide
by intoxicated use of a vehicle while having a prior intoxicant-related conviction;
homicide by use of a vehicle with a prohibited alcohol concentration while having
a prior intoxicant-related conviction; homicide by use of a vehicle with a detectable
amount of a restricted controlled substance in her blood; possession of drug
paraphernalia; and four counts of first-degree recklessly endangering safety.2
Wiederin moved to suppress her blood test results, asserting that the warrantless
blood draw violated the Fourth Amendment.

¶12 The circuit court denied Wiederin’s suppression motion because it
concluded that the blood draw was justified by exigent circumstances. The court
noted that Wiederin “was seriously injured and trapped in her car for nearly an hour”
and was “inaccessible to law enforcement” officers during that time. The court
found that, while at the scene, “[a]t no point, did the officers have available staff or
sufficient time to apply for a warrant, much less have access to Ms. Wiederin to
execute it while she was in Wisconsin.”

¶13 The circuit court concluded that “[t]he exigency went unabated in
Minnesota.” The court noted that Wiederin was inaccessible to law enforcement
for nearly an hour while she was being examined in the imaging room. The court
recognized that Sergeant Williams “needed to wait until [Wiederin] became
available, and he had no way of knowing when that would happen.” The court found
that had Williams left the hospital to attempt to obtain a warrant, he “easily could
have missed his opportunity to see Ms. Wiederin,” and that “had it not been for
Deputy [sic] Williams persuading the right nurse at the right time, Ms. Wiederin

2
The recklessly endangering safety charges related to four juveniles in another vehicle,
whose driver had to take evasive action to avoid Wiederin’s car hitting the juveniles’ car head-on
while Wiederin was driving the wrong way on the highway.

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would have been moved to surgery and beyond the reach of the law, presumably for
hours.” The court further found that the officers who remained at the scene “were
all fully occupied with high-priority, time sensitive tasks that could not be
responsibly postponed for a warrant application.”

¶14 As part of a plea agreement, Wiederin pled no contest to two
crimes: first-degree recklessly endangering safety and homicide by use of a motor
vehicle with a detectable presence of a restricted controlled substance in her blood.
The remaining charges were dismissed and read in at sentencing. The circuit court
imposed fifteen years’ initial confinement and ten years’ extended supervision for
the homicide crime and a concurrent sentence of seven and one-half years’ initial
confinement and five years’ extended supervision for the first-degree recklessly
endangering safety crime. Wiederin now appeals, challenging the denial of her
suppression motion. Additional facts will be included as relevant to the discussion.

DISCUSSION

¶15 We review a motion to suppress under a two-prong analysis: first, we
review the circuit court’s findings of historical fact and uphold them unless they are
clearly erroneous; and, second, we review the application of constitutional
principles to those facts de novo. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d
421, 857 N.W.2d 120. A reviewing court determines whether exigent circumstances
justify a warrantless blood draw under the same two-step inquiry. State v. Howes,
2017 WI 18, ¶¶17-19, 373 Wis. 2d 468, 893 N.W.2d 812.

¶16 When law enforcement collects a blood sample for chemical testing,
it has conducted a “search” governed by the Fourth Amendment of the United States
Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966). The Fourth
Amendment guarantees the “right of the people to be secure in their

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persons … against unreasonable searches and seizures, shall not be violated.” U.S.
CONST. amend. IV. Warrantless searches are presumptively unreasonable unless an
exception to the warrant requirement applies. Tullberg, 359 Wis. 2d 421, ¶30. One
exception to the warrant requirement is the exigent circumstances doctrine, which
allows warrantless searches “to prevent the imminent destruction of evidence.”
Missouri v. McNeely, 569 U.S. 141, 149 (2013).

¶17 Whether exigent circumstances justify a blood draw is an objective
determination based on what the officer knew at the time. Tullberg, 359 Wis. 2d
421, ¶41. What an officer knew at the time is looked at from the prospective of a
reasonable officer at the scene.

[B]ecause the police are presumably familiar with the
mechanics and time involved in the warrant process in their
particular jurisdiction, we expect that officers can make
reasonable judgments about whether the warrant process
would produce unacceptable delay under the circumstances.
Reviewing courts in turn should assess those judgments from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.

McNeely, 569 U.S. at 158, n.7 (citation omitted). Exigent circumstances depend on
the reasonableness of an officer’s belief that “the delay necessary to obtain a
warrant, under the circumstances, threatened ‘the destruction of evidence.’”
Schmerber, 384 U.S. at 770 (citation omitted).

¶18 Two factors that heighten the exigency for a warrantless blood draw
are a car accident involving the subject individual and his or her unconsciousness.
The Supreme Court has concluded that a blood draw was justified by exigent
circumstances because “a car accident heightened [the] urgency” that is “common
to all drunk-driving cases.” Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525,

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2533 (2019). Additionally, a driver’s unconsciousness “almost always” heightens
the urgency and constitutes an exigency. Id. at 2539.

¶19 Wiederin argues that the circuit court erred in concluding that her
warrantless blood draw was justified by exigent circumstances. While she does not
argue that law enforcement did not confront an emergency, she asserts that the
officers had adequate time to obtain her consent or a warrant before her blood was
drawn. She asserts that officers could have read her the Informing the Accused form
at the crash scene, that the multiple officers at the scene had time to apply for a
warrant, and that Sergeant Williams had time to apply for a warrant while en route
to or after his arrival at the hospital.

¶20 Wiederin notes that there was no question that she was involved in the
crash as she was pinned in her vehicle at the time officers arrived at the scene and
witnesses identified her car as being involved. She asserts that law enforcement had
probable cause to believe that she was under the influence “within five minutes of
the accident,” and therefore they did not require “additional time to investigate.” In
support, she points to her admission of drinking, an officer’s observation of her slow
and soft speech, and claims the officers located an open alcohol bottle in the vehicle.

¶21 While at the accident scene, Wiederin did admit to drinking, she could
not tell Deputy Hillstead how much alcohol she had consumed, and she also denied
using drugs. Hillstead testified that Wiederin “was talking softly. She obviously
looked like she was in serious condition.” Wiederin points to nothing in the record
on appeal suggesting that Hillstead believed her soft speech was “indicative of
drinking.” Law enforcement did not identify the open container as alcohol nor the
marijuana until Wiederin was removed from the vehicle and was on the way to the
hospital.

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No. 2020AP2006-CR

¶22 Further, it was reasonable that law enforcement did not read the
Informing the Accused form to Wiederin prior to her transport to the hospital. Law
enforcement inquired about a blood sample; however, medical personnel refused so
as not to delay transport due to the severity of Wiederin’s injuries. Sergeant Charles
Coleman testified that there were “about five or six” medics and first responders
inside the ambulance with Wiederin, so the officers stayed out of the way because
Wiederin’s medical treatment was the top priority. As the circuit court properly
recognized, the decision by emergency personnel not to allow officers to access
Wiederin while she was in the ambulance “demonstrates the seriousness of
Ms. Wiederin’s condition and the exigent need to move her to a trauma hospital in
Minnesota.”

¶23 Contrary to Wiederin’s argument that law enforcement had time to
obtain a warrant after Wiederin left the scene and was transported to the hospital,
the evidence shows that law enforcement did not have the opportunity to seek a
warrant at that time. As the circuit court correctly determined, “[e]xigent
circumstances existed throughout the night.” The court found that the crash
occurred “on a busy, divided highway,” multiple law enforcement agencies were
involved, and the crash scene was “chaotic.” Additionally, the court found that two
Village of Somerset police officers “divided and monitored traffic to protect the
scene and the public,” while “firefighters and EMTs were busy attending to the
vehicle occupants.” Further, the court found that Sergeant Coleman collected
evidence to reconstruct the scene, and he called in an off-duty deputy to come to the
scene for assistance. The court found that Coleman “worked continuously for 3 ½
to 4 hours” and that “Deputies [sic] Williams and Hillstead collected and preserved
evidence before it was tainted or lost due to the passage of time or contamination of
the scene.”

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¶24 Additionally, Sergeant Williams “also supervised the investigation,
fielded other emergency calls throughout the county, and sought assistance from
other agencies.” At some point, Williams went to the hospital in St. Paul where
Wiederin had been transported. The circuit court concluded that “[a]lthough six
officers were on scene at different points in time, they were all consumed with
necessary, time-sensitive tasks that could not be abandoned in favor of applying for
a search warrant.”

¶25 Wiederin appears to argue that law enforcement should have placed
the importance of obtaining a warrant above all other duties at the scene. Wiederin,
however, cites no authority requiring officers to direct all of their attention to first
obtaining a blood draw and warrant before they undertake other responsibilities. As
the supreme court recognized in State v. Dalton, 2018 WI 85, ¶50, 383 Wis. 2d 147,
914 N.W.2d 120, “[p]olice serve a dual purpose at an accident scene. They are
present to investigate the cause of the accident and gather evidence of wrongdoing,
but they are also there as first responders to injuries.” Id. Just like in Dalton, the
circuit court properly found that the officers at the scene acted reasonably in
prioritizing pressing needs and duties over applying for a search warrant.

¶26 Wiederin next claims that Sergeant Williams should have applied for
a warrant either en route to the hospital or while he waited at the hospital. Wiederin
argues that Williams was “in the exact situation described in McNeely,” where the
Supreme Court noted that “an officer can take steps to secure a warrant while the
suspect is being transported to a medical facility by another officer.” See McNeely,
569 U.S. at 153. The situation here, however, is distinguishable from that
contemplated in McNeely, which relied upon the example of an officer who was not
driving a vehicle as having an opportunity to draft a warrant application while
another officer drove both to the hospital. Id. at 153-54.

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¶27 Here, Williams could not draft a warrant, as he was driving himself to
the hospital. Further, while Williams was not required to seek Wiederin’s consent
to a blood draw before applying for a warrant, the issue is whether he acted
reasonably in trying to do so rather than first seeking a warrant. The record supports
the circuit court’s finding that Williams acted reasonably and we agree.

¶28 When Sergeant Williams arrived at the hospital, he planned to seek
Wiederin’s consent to a blood draw and apply for a warrant if consent was denied.
Once Williams arrived at the hospital, however, he discerned that this approach
would not be possible. Williams learned that the medical personnel would not draw
Wiederin’s blood while she was in imaging, but they could do the blood draw once
she was out of imaging. Williams was later told that once Wiederin was out of
imaging, she would be taken immediately to surgery, and medical personnel would
not draw her blood for police purposes while in surgery.

¶29 As the circuit court recognized, had Sergeant Williams not been
present at the hospital while Wiederin was in imaging, had he not made contact with
a nurse at the right time, and had he not been present immediately before Wiederin
went into surgery, he would not have been able to obtain a blood draw. As the court
stated, “[o]nly with the benefit of hindsight can one see that Deputy [sic] Williams
waited an hour.” Williams did not know he would be waiting for an hour—he only
knew that medical personnel would not let him speak to Wiederin while she was in
imaging, so he needed to wait until that concluded. And while Williams knew that
under normal circumstances in Wisconsin it would take thirty minutes to obtain a
warrant, Williams did not know how long it would take to do so in Minnesota. The
court further recognized that taking time to apply for a warrant could have had
“terrible collateral costs” and that “[a]ny of these tasks easily would have diverted
Deputy Williams’ attention away from Ms. Wiederin at the expense of missing the

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brief opportunity to see her before she went into surgery,” leaving her “beyond the
reach of the law, presumably for hours.”

¶30 Here, as the circuit court recognized, taking the time to apply for a
warrant would have threatened the destruction of evidence because Sergeant
Williams may not have been present at the time evidence could be gathered. An
officer is not required to obtain a warrant when doing so would threaten the
destruction of the evidence. McNeely, 569 U.S. at 150; Schmerber, 384 U.S. at
770. Williams acted reasonably in first seeking Wiederin’s consent for a blood
sample, and when she was unconscious or otherwise unable to consent or refuse the
draw, Williams acted reasonably by requesting hospital staff to draw her blood
without a warrant, given the exigent circumstances that existed at that time.
Accordingly, we affirm.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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