State v. Michael R. Tullberg

2014 WI 134

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1593-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Michael R. Tullberg,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 349 Wis. 2d 526, 835 N.W.2d 291)
(Ct. App. 2013 – Unpublished)

OPINION FILED: December 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Shawano
JUDGE: James R. Habeck

JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, the cause was
argued by Sarah Schmeiser, with whom on the brief was Tracey
Wood, and Tracey Wood & Associates, Madison.

For the plaintiff-respondent, the cause was argued by
Christine A. Remington, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
 2014 WI 134
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1593-CR
(L.C. No. 2009CF202)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. DEC 26, 2014

Michael R. Tullberg, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals1 which affirmed

Michael R. Tullberg's ("Tullberg") criminal convictions in
Shawano County Circuit Court.2 Tullberg appeals his judgment of

conviction and the denial of his request for post-conviction

relief. Specifically, he argues that the circuit court erred

when it denied his motion to suppress a warrantless blood draw.

1
State v. Tullberg, No. 2012AP1593-CR, unpublished slip op.
(Wis. Ct. App. June 25, 2013) (per curiam).
2
The Honorable James R. Habeck presided.
 No. 2012AP1593-CR

He seeks our review in light of Missouri v. McNeely, 569 U.S.

___, 133 S. Ct. 1552 (2013).

¶2 Tullberg was involved in a single-vehicle, fatal

accident. There were several occupants of the vehicle,

including the person who died as a result of the accident. The

State alleged that Tullberg was the driver of the vehicle, was

under the influence of an intoxicant, and was criminally

responsible for, among other things, the fatality. Tullberg

denied being the driver.

¶3 While Tullberg was being treated at the hospital, a

sheriff's deputy instructed hospital staff to perform a

warrantless blood draw. Tullberg argues that the blood draw

evidence should have been suppressed because the blood draw was

an unreasonable search without a warrant and thus

unconstitutional. He argues that the good faith doctrine does

not apply to this case.

¶4 The State argues that the blood draw was a

constitutional search because it was supported by both probable
cause and exigent circumstances. The State further asserts

that, if exigent circumstances did not exist, the good faith

doctrine nonetheless allowed the blood test result to be

admitted into evidence.3

¶5 We conclude that the motion to suppress was properly

denied because the warrantless draw of Tullberg's blood was

3
We applied the good faith doctrine in a similar case. See
State v. Kennedy, 2014 WI 132, ___ Wis. 2d ___, ___ N.W.2d ___.

2
 No. 2012AP1593-CR

supported by probable cause and exigent circumstances. Because

we conclude that the blood draw was constitutional, we need not

address the good faith exception.

I. FACTUAL BACKGROUND

¶6 On July 30, 2009, Tullberg was involved in a fatal,

one-vehicle accident in Shawano County when his truck ran off

the road, struck a rock, flipped one or two times, and came to

rest 70 feet from the rock, on the driver's side. M.A.,

deceased, was pinned under the driver's side of the vehicle.

The crash was so violent that the removable cap covering the

truck bed behind the cabin was flattened and torn from the

truck, loosening the cap's door in the process, and debris from

the truck littered the accident scene.4 Based on cell phone

records, the accident occurred between 12:18 a.m. and 12:26 a.m.

¶7 M.A., A.M., and C.M. were passengers in the truck at

the time of the accident. M.A., who was riding in the truck

bed, fell out when the truck flipped over. After the accident,

Tullberg and A.M. spent approximately 15 minutes looking for
M.A., but to no avail. C.M. looked for M.A. for a few minutes

and then left the scene because he was in violation of his

probation.

¶8 Shortly thereafter, Tullberg's brother, Joseph Hauke

("Hauke"), arrived at the accident scene and gave Tullberg and

4
Also known as a box, a truck bed is the large cargo area
in the back of the truck, located behind the cabin area intended
for passengers.

3
 No. 2012AP1593-CR

A.M. a ride to Tullberg's mother's house, which is located

approximately five miles from the accident scene. Tullberg's

mother gave Tullberg and A.M. a ride to the Langlade Memorial

Hospital in Antigo, which is about 20 miles away. At 12:53

a.m., Tullberg's father called 9-1-1 to report the accident, and

Hauke did the same shortly thereafter.

¶9 At approximately 12:55 a.m., Deputy Sheriff Justin

Hoffman ("Deputy Hoffman") of the Shawano County Sheriff's

Department was dispatched to the accident scene. At 1:03 a.m.,

the deputy arrived at the scene and spent the next 30 minutes

there. No readily observable occupants or witnesses were at the

scene. The terrain was rocky, steep, and wooded, and he

described it as hazardous. Deputy Hoffman ultimately discovered

M.A.'s body pinned under the driver's side of the truck. After

he investigated and took photographs of the scene for five to

ten minutes, firefighters and emergency medical services persons

arrived at the scene.

¶10 While Deputy Hoffman was investigating the accident
scene, Tullberg's father, Melvin Tullberg ("Melvin"), arrived at

the scene. Melvin was very shaken up and speaking frantically.

He told Deputy Hoffman that Tullberg owned the truck and that

Tullberg and A.M. had gone to the hospital. Melvin told Deputy

Hoffman several times that, according to Tullberg, a passenger

who was riding in the bed of the truck was missing. Melvin

stated that Tullberg spent several minutes looking for this

passenger and implored Deputy Hoffman to look for him. Melvin
said that Tullberg did not say whether he was the driver of the
4
 No. 2012AP1593-CR

truck when it crashed. Melvin began to walk along the roadside

as if he was heading toward the crash site. Because Deputy

Hoffman did not want Melvin to be near a traumatic crime scene,

he physically guided Melvin to wait near his squad car. Melvin

then received a phone call from Hauke and handed the phone to

Deputy Hoffman. Hauke told Deputy Hoffman that Tullberg and

A.M. were headed to Langlade Memorial Hospital.

¶11 When Deputy Bradley Schultz and Sergeant Michael

Wizner ("Sergeant Wizner") arrived at the accident scene, Deputy

Hoffman left to go to the Langlade Memorial Hospital. He spent

approximately 30 minutes driving to the hospital.

¶12 Deputy Hoffman arrived at Langlade Memorial Hospital

around 2:00 a.m. and interviewed Tullberg approximately ten

minutes later. This interview lasted approximately ten minutes.

Tullberg told Deputy Hoffman that M.A. was driving the truck

when it crashed and that Tullberg did not know M.A.'s last name.

Tullberg stated that he knew M.A. for only three days and never

let M.A. drive his truck before that night. Tullberg said he
was in the passenger seat of the truck when the accident

happened and that he did not remember how he exited the truck.

Tullberg said that the passenger's side airbag deployed.

Tullberg stated that a fourth person may have been in the truck.

Deputy Hoffman noticed that Tullberg appeared to have been

struck by an airbag because hair on Tullberg's right forearm was

singed consistent with friction from an airbag and because

Tullberg smelled like the residue from a deployed airbag.

5
 No. 2012AP1593-CR

¶13 Tullberg admitted to Deputy Hoffman that he consumed

alcohol that night, specifically, a mixed drink and a "Jӓger

bomb."5 While interviewing Tullberg, Deputy Hoffman noticed that

Tullberg had an odor of intoxicants, slurred speech, and

bloodshot and glassy eyes. Based on these facts, Deputy Hoffman

determined that Tullberg was intoxicated.

¶14 Deputy Hoffman next spent approximately five to ten

minutes interviewing A.M., who was in a different room in the

Langlade Memorial Hospital. A.M. said that when the accident

happened, she was in the bed of the truck, M.A. was driving the

truck, and Tullberg was riding in the passenger's seat.

¶15 After interviewing A.M. and while still at the

hospital, Deputy Hoffman telephoned Sergeant Wizner to gather

information about the accident scene. Sergeant Wizner told

Deputy Hoffman that the airbag on the passenger's side had not

deployed and that the airbag on the driver's side had deployed.

Sergeant Wizner confirmed that the truck was lying on its

driver's side and that its driver's side window was intact and
partially rolled down.

¶16 Deputy Hoffman thereafter concluded that he had

probable cause to believe that Tullberg was intoxicated and the

driver of the truck at the time of the accident. Deputy Hoffman

based this determination on the fact that the passenger's side

5
A Jӓger bomb is made by dropping a shot glass of
Jägermeister (a 70-proof liqueur) into a glass of an energy
drink, such as Red Bull® or Monster Energy®.

6
 No. 2012AP1593-CR

airbag did not deploy but the driver's side airbag did deploy.

Tullberg appeared as if an airbag struck him because his right

forearm hair was singed and he smelled like airbag residue.

Further, Deputy Hoffman determined that even though Tullberg

said that M.A. was the driver, the evidence indicated that M.A.

could not have been the driver. M.A. was pinned underneath the

driver's side of the truck, and the evidence from the accident

scene showed that M.A. could not have been ejected from the

vehicle. Specifically, the driver's side window was intact and

partially rolled down. M.A., whose weight Deputy Hoffman

estimated was between 240 and 250 pounds, could not have fit

through the window opening. M.A. could not have been the driver

and then pinned under the driver's side of the vehicle without

being ejected from the vehicle. There was no indication that he

could have been ejected. Also, Deputy Hoffman did not detect

any airbag residue on M.A.

¶17 Simply stated, as a result of the information Deputy

Hoffman learned from his observations and interview of Tullberg,
coupled with the evidence at the scene of the accident, Deputy

Hoffman determined that Tullberg had operated the motor vehicle

while intoxicated.

¶18 Because of the facts and circumstances of this

investigation, Deputy Hoffman did not follow standard protocol

for an operating under the influence arrest. He did not

administer field sobriety tests, issue a citation, arrest

7
 No. 2012AP1593-CR

Tullberg, or read the Informing the Accused form to Tullberg.6

Deputy Hoffman testified that he did not follow the standard

procedure because, among other things, Tullberg's medical

condition was unknown, Tullberg was hospitalized after a serious

car accident, and medical personnel needed to perform a

Computerized Tomography scan ("CT scan") on Tullberg with some

immediacy.

¶19 More than two and a half hours after the accident,

Deputy Hoffman instructed medical staff to draw two vials of

Tullberg's blood for testing. He did not have a warrant.

Deputy Hoffman believed that Tullberg's blood needed to be drawn

urgently because, based on his training, he believed the alcohol

in Tullberg's bloodstream was rapidly dissipating and time was

of the essence. Based on his training, Deputy Hoffman knew that

a suspected drunken driver's blood should be drawn within three

hours of an automobile accident in which the driver was

involved.7 At 3:05 a.m. hospital staff drew Tullberg's blood.

The blood test results indicated that Tullberg's blood alcohol
concentration ("BAC") was 0.141, above the legal limit.
6
Tullberg did not object to the blood draw. However, the
State does not argue that Tullberg consented to it.
7
If a blood sample is taken more than three hours after an
automobile accident, the blood draw evidence is admissible only
if an expert testifies to its accuracy. See Wis. Stat.
§§ 885.235(1g), 885.235(3) (2009-10). All subsequent references
to the Wisconsin Statutes are to the 2009-10 version unless
otherwise indicated. See also State v. Bohling, 173
Wis. 2d 529, 546, 494 N.W.2d 399 (1993), abrogated on other
grounds by Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552
(2013).

8
 No. 2012AP1593-CR

II. PROCEDURAL POSTURE

¶20 On August 7, 2009, a warrant for Tullberg's arrest was

issued. On the next day, Tullberg turned himself in.

¶21 On August 10, 2009, Tullberg made an initial

appearance and was charged in a criminal complaint with six

offenses: homicide by intoxicated use of a motor vehicle,8

second-degree reckless homicide,9 two counts of operating while

intoxicated causing injury,10 failure to aid a victim or report a

crime,11 and obstructing an officer.12 On August 19, 2009, a

preliminary hearing was conducted and Tullberg was bound over

for trial. An information was filed on August 21, 2009. The

information differed from the complaint only in that it replaced

the second-degree reckless homicide charge with a charge of

homicide by use of a vehicle with a prohibited alcohol

concentration,13 included a new charge of hit and run resulting

in death,14 and omitted the complaint's charge of failure to aid

a victim or report a crime. On August 24, 2009, the State filed

8
Contrary to Wis. Stat. § 940.09(1)(a).
9
Contrary to Wis. Stat. § 940.06(1).
10
Contrary to Wis. Stat. § 346.63(2)(a)1. One count was
for injuring A.M. and the other count was for injuring C.M.
11
Contrary to Wis. Stat. § 940.34(2)(a). This count was
for failing to aid M.A.
12
Contrary to Wis. Stat. § 946.41(1).
13
Contrary to Wis. Stat. § 940.09(1)(b).
14
Contrary to Wis. Stat. § 346.67(1).

9
 No. 2012AP1593-CR

an amended information that included the six charges in the

information and added two counts of operating with prohibited

alcohol concentration causing injury15 and one count of failure

to aid a victim or report a crime. On August 24, 2009, Tullberg

was arraigned and entered pleas of not guilty.

¶22 On January 19, 2010, before McNeely was decided,

Tullberg filed a motion to suppress the blood test results. He

argued, inter alia, that the blood draw was unconstitutional

because it was not performed in compliance with legally

recognized protocols, not done pursuant to implied consent laws

or pursuant to a warrant, not done with his express consent, and

not justified by exigent circumstances. On May 25, 2010, the

circuit court held a hearing on Tullberg's suppression motion.

After hearing the evidence presented and considering the

arguments of counsel, the circuit court concluded that exigent

circumstances justified the warrantless blood draw. The circuit

court denied the suppression motion.

¶23 On March 28 through April 1, 2011, Tullberg was tried
before a jury. The jury found Tullberg guilty of six counts.

On May 31, 2011, the circuit court sentenced Tullberg.

¶24 On February 3, 2012, Tullberg filed a motion for post-

conviction relief, seeking a new trial. He argued, inter alia,

that the circuit court erred in denying Tullberg's motion to

suppress the blood draw evidence because the blood draw was

15
Contrary to Wis. Stat. § 346.63(2)(a). The victims of
these counts were A.M. and C.M.

10
 No. 2012AP1593-CR

unconstitutional. On June 27, 2012, the circuit court denied

the motion for post-conviction relief. These proceedings also

occurred before McNeely was decided.

¶25 Tullberg appealed his conviction. On June 25, 2013,

the court of appeals upheld the circuit court's judgment of

conviction and order denying his motion for post-conviction

relief. The court of appeals reasoned that both probable cause

and exigent circumstances supported the blood draw.16 McNeely

was decided before the court of appeals issued its decision.

¶26 On July 17, 2013, Tullberg petitioned this court for

review. On February 19, 2014, we granted review. The petition

requests review to clarify the law relating to exigent

circumstances under McNeely.

III. STANDARD OF REVIEW

¶27 "Our review of an order granting or denying a motion

to suppress evidence presents a question of constitutional

fact." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786

N.W.2d 463 (citing State v. Hughes, 2000 WI 24, ¶15, 233
Wis. 2d 280, 607 N.W.2d 621). "When presented with a question

of constitutional fact, this court engages in a two-step

inquiry." Id. (citing State v. Pallone, 2000 WI 77, ¶27, 236

Wis. 2d 162, 613 N.W.2d 568; Hughes, 233 Wis. 2d 280, ¶15).

"First, we review the circuit court's findings of historical

fact under a deferential standard, upholding them unless they

16
The court of appeals also resolved other issues not
petitioned to this court.

11
 No. 2012AP1593-CR

are clearly erroneous." Id. (citations omitted). "Second, we

independently apply constitutional principles to those facts."

Id. (citations omitted).

¶28 We apply this two-step inquiry when determining

whether exigent circumstances justified a warrantless search,

State v. Richter, 2000 WI 58, ¶26, 235 Wis. 2d 524, 612

N.W.2d 29, and whether a law enforcement officer had probable

cause, State v. Popke, 2009 WI 37, ¶10, 317 Wis. 2d 118, 765

N.W.2d 569.

IV. ANALYSIS

¶29 "The Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution protect '[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures.'" Robinson, 327 Wis. 2d 302, ¶24

(citations omitted).17 "The touchstone of the Fourth Amendment

17
The Fourth Amendment to the United States Constitution
provides in full:

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.

Article I, Section 11 of the Wisconsin Constitution states:

The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable
(continued)
12
 No. 2012AP1593-CR

is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991)

(citing Katz v. United States, 389 U.S. 347, 360 (1967)). "The

Fourth Amendment does not proscribe all state-initiated searches

and seizures; it merely proscribes those which are

unreasonable." Id. (citing Illinois v. Rodriguez, 497 U.S. 177

(1990)).

¶30 A warrantless search is presumptively unreasonable,

State v. Henderson, 2001 WI 97, ¶19, 245 Wis. 2d 345, 629 N.W.2d

613, and is constitutional only if it falls under an exception

to the warrant requirement, State v. Krajewski, 2002 WI 97, ¶24,

255 Wis. 2d 98, 648 N.W.2d 385. One exception to the warrant

requirement is the exigent circumstances doctrine, which holds

that a warrantless search complies with the Fourth Amendment if

the need for a search is urgent and insufficient time to obtain

a warrant exists. Robinson, 327 Wis. 2d 302, ¶24.

¶31 A blood draw to uncover evidence of a crime is a

search within the meaning of the Fourth Amendment. State v.

Bentley, 92 Wis. 2d 860, 863-64, 286 N.W.2d 153 (Ct. App. 1979).
A warrantless, nonconsensual blood draw of a suspected drunken

driver complies with the Fourth Amendment if: (1) there was

cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized.

We generally interpret the search and seizure provision of our
state constitution consistent with the United States Supreme
Court's interpretation of the Fourth Amendment. State v.
Robinson, 2010 WI 80, ¶24 n.11, 327 Wis. 2d 302, 786 N.W.2d 463
(citations omitted).

13
 No. 2012AP1593-CR

probable cause to believe the blood would furnish evidence of a

crime; (2) the blood was drawn under exigent circumstances; (3)

the blood was drawn in a reasonable manner; and (4) the suspect

did not reasonably object to the blood draw. State v. Erickson,

2003 WI App 43, ¶9, 260 Wis. 2d 279, 659 N.W.2d 407; Schmerber

v. California, 384 U.S. 757, 769-71 (1966).

¶32 We first examine whether Deputy Hoffman had probable

cause to instruct hospital staff to draw Tullberg's blood. Next

we consider whether exigent circumstances justified the

warrantless blood draw. Tullberg has conceded that his blood

was drawn in a reasonable manner and that he did not reasonably

object to the blood draw. Finally, we analyze Tullberg's

argument that a suspected drunken driver must be arrested before

his or her blood may be drawn without a search warrant. We

conclude that probable cause and exigent circumstances justified

the warrantless blood draw. Tullberg did not need to be under

arrest before his blood could be drawn.

A. Probable Cause to Search
¶33 "In the search context, probable cause requires a

'fair probability' that contraband or evidence of a crime will

be found in a particular place." Robinson, 327 Wis. 2d 302, ¶26

(quoting Hughes, 233 Wis. 2d 280, ¶21) (quotation marks

omitted). To have probable cause to search a suspect, a law

enforcement officer must be aware of and reasonably believe

evidence that shows the suspect's guilt of a crime is more than

a possibility, although the evidence need not show the suspect's
guilt is more likely than not. State v. Richardson, 156
14
 No. 2012AP1593-CR

Wis. 2d 128, 148-49, 456 N.W.2d 830 (1990) (citing State v.

Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986); State v.

Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971)). To

determine whether probable cause to search existed, a court

determines whether law enforcement acted reasonably. Robinson,

327 Wis. 2d 302, ¶26 (citing Rodriguez, 497 U.S. at 185;

Illinois v. Gates, 462 U.S. 213, 231 (1983); Hughes, 233 Wis. 2d

280, ¶23). A reviewing court considers the totality of the

circumstances to determine whether probable cause to search

existed. State v. Ward, 2000 WI 3, ¶26, 231 Wis. 2d 723, 604

N.W.2d 517 (citing State v. DeSmidt, 155 Wis. 2d 119, 131, 454

N.W.2d 780 (1990)).

¶34 We conclude that, under the totality of the

circumstances, Deputy Hoffman had probable cause to believe that

a test of Tullberg's blood would produce evidence that Tullberg

had operated a motor vehicle while intoxicated. Deputy Hoffman

relied on several factors to conclude that Tullberg was under

the influence of an intoxicant. While interviewing Tullberg in
the hospital, Deputy Hoffman noticed that Tullberg's speech was

slurred, his eyes were glassy and bloodshot, and his breath

smelled of intoxicants. Tullberg admitted to Deputy Hoffman

that he had multiple alcoholic drinks that night. These facts

establish that Deputy Hoffman reasonably believed that Tullberg

was intoxicated. See State v. Kasian, 207 Wis. 2d 611, 622, 558

N.W.2d 687 (Ct. App. 1996) (holding that an officer had probable

cause to arrest defendant for operating while intoxicated
because defendant smelled of intoxicants, his speech was
15
 No. 2012AP1593-CR

slurred, he was injured, and he was lying next to his van which

had struck a telephone pole); Erickson, 260 Wis. 2d 279, ¶¶15-16

(holding that an officer had probable cause to have defendant's

blood drawn because defendant smelled strongly of intoxicants,

crashed her truck into another vehicle, admitted to drinking one

to three beers, and had recently left an all-night party).

¶35 Tullberg argues that bloodshot and glassy eyes are not

a sign of intoxication, relying on a National Highway Traffic

and Safety Administration study regarding the accuracy of clues

that law enforcement officers use to determine whether someone

is intoxicated.18 The study argues that law enforcement officers

should not consider bloodshot and glassy eyes to be an indicator

of intoxication because such eye conditions may be caused by

allergies or shift work. However, the study does not conclude

that intoxication does not cause eyes to become bloodshot and

glassy. We reaffirm that a law enforcement officer may consider

bloodshot and glassy eyes to be one of several indicators of

intoxication, even though such eye descriptors may have an
innocent explanation. See Robinson, 327 Wis. 2d 302, ¶29

("'[I]nnocent' behavior frequently will provide the basis for a

showing of probable cause.'") (quoting Gates, 462 U.S. at 243

n.13).

18
Jack Stuster, U.S. Department of Transportation, NHTSA
Final Report, The Detection of DWI at BACS below 0.10, DOT HS-
808-654 (Sept. 1997) at 14 and E-10.

16
 No. 2012AP1593-CR

¶36 Deputy Hoffman also reasonably believed that Tullberg

was the operator of the truck when it crashed. Again, the

deputy did not rely on one fact alone. First, Tullberg owned

the truck, which supports Deputy Hoffman's view that he was the

driver. Second, an airbag deployed only on the driver's side of

the truck, and Tullberg appeared as if an airbag struck him.

Specifically, he looked like an airbag struck him because the

hair on his right forearm was singed consistent with friction

from a deploying airbag. He smelled like airbag residue, which

also suggests that the airbag struck him. Deputy Hoffman made

these observations about Tullberg's appearance while

interviewing him, and Deputy Hoffman subsequently confirmed with

Sergeant Wizner over the telephone that an airbag deployed only

on the driver's side of the truck. Thus, Deputy Hoffman

reasonably concluded that the driver's side airbag struck

Tullberg. Third, Deputy Hoffman determined that A.M. was not

the driver of the truck because she did not have singed hair on

either arm or smell like airbag residue. Finally, Deputy
Hoffman reasonably believed that Tullberg lied when he said that

he was the passenger and M.A. was the driver of the truck when

it crashed. Specifically, not only did the airbag evidence

indicate that Tullberg was the driver, but Deputy Hoffman knew

that M.A.'s body was pinned underneath the truck and that the

driver's side window of the truck was intact and partially

rolled down. Deputy Hoffman estimated M.A.'s weight to be

between 240 and 250 pounds and determined that M.A. could not
have been ejected from the truck through the window opening.
17
 No. 2012AP1593-CR

Further, Tullberg's father told Deputy Hoffman that Tullberg

said that a person who was riding in the truck bed when the

truck crashed was missing, and Deputy Hoffman discovered that

M.A. was the missing person. Deputy Hoffman did not smell

airbag residue on M.A. Based on all of this evidence, Deputy

Hoffman reasonably believed that Tullberg was the driver of the

truck when it crashed.

¶37 Because Deputy Hoffman reasonably believed that

Tullberg was intoxicated and that Tullberg was the driver of the

truck when it crashed, he had probable cause to believe that

Tullberg had operated a motor vehicle while intoxicated.19

¶38 Relying on State v. Seibel, 163 Wis. 2d 164, 471

N.W.2d 226 (1991), and State v. Swanson, 164 Wis. 2d 437, 475

N.W.2d 148 (1991), Tullberg argues that the facts in the present

case do not establish probable cause that he was operating while

intoxicated. First, he argues that Seibel is factually similar

to this case, and in Seibel this court held that an officer had

reasonable suspicion that the defendant was operating while
intoxicated. Tullberg argues that, because reasonable suspicion

is a lesser burden of proof than probable cause, there was no

19
Tullberg argues that Deputy Hoffman should have
investigated Tullberg's claim that a fourth person might have
been in the truck when it crashed. However, Tullberg does not
argue that he told Deputy Hoffman that this fourth person was
driving the truck when it crashed or even that he said this
fourth person was definitely in the truck. Even if Tullberg had
claimed this fourth person was driving the truck when it
crashed, Deputy Hoffman still had probable cause to believe that
Tullberg was the driver.

18
 No. 2012AP1593-CR

probable cause in Seibel. However, this court in Seibel never

determined whether the facts in that case established probable

cause that the defendant was operating while intoxicated. See

Seibel, 163 Wis. 2d at 172-79.20 Instead, Seibel analyzed

whether a law enforcement officer had reasonable suspicion to

perform a warrantless blood draw subsequent to a lawful arrest.

Id. at 180-83.

¶39 Tullberg next argues that this court in Swanson held

that erratic driving and a subsequent automobile accident around

the time that bars close did not constitute probable cause of

operating while intoxicated. By analogy, he argues that

probable cause was lacking in the present case. Tullberg

misinterprets Swanson. The court in Swanson expressly declined

to determine whether probable cause existed. Swanson, 164

20
In a footnote in Swanson, this court stated in passing
that the Seibel court held that probable cause did not exist in
that case. State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475
N.W.2d 148 (1991). This statement in Swanson is incorrect. The
court in Seibel did not even consider whether probable cause
existed. See State v. Seibel, 163 Wis. 2d 164, 172-83, 471
N.W.2d 226 (1991).

19
 No. 2012AP1593-CR

Wis. 2d at 453 & n.6.21 Instead, the issue in Swanson was

whether the search-incident-to-arrest exception to the warrant

requirement justified a search that preceded an arrest. Id. at

441-42.

¶40 Tullberg also argues that Deputy Hoffman lacked

probable cause to determine that Tullberg was operating while

intoxicated because Tullberg did not perform a field sobriety

test. Tullberg notes that field sobriety tests preceded

determinations of probable cause in State v. Colstad, 2003 WI

App 25, 260 Wis. 2d 406, 659 N.W.2d 394, and State v. Begicevic,

2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293. However, in

his reply brief, Tullberg correctly acknowledges that a law

enforcement officer need not administer a field sobriety test in

order to have probable cause that a suspect operated while

21
In any event, the present case has more evidence of
intoxication than Seibel or Swanson did. In Seibel this court
held that an officer had reasonable suspicion that Seibel was
operating while intoxicated because Seibel was driving
erratically, he caused a car accident, police officers smelled
intoxicants emanating from Seibel's traveling companions, a
police officer thought he smelled intoxicants on Seibel, and
Seibel was belligerent. Seibel, 163 Wis. 2d at 180-83. In
Swanson this court stated that officers had reasonable suspicion
that Swanson was operating while intoxicated because his driving
was erratic near the time bars close and because his breath
smelled of intoxicants. Swanson, 164 Wis. 2d at 453 n.6. In
contrast, in the present case, Tullberg smelled of intoxicants,
admitted to consuming alcohol, had slurred speech, and had
bloodshot and glassy eyes.

20
 No. 2012AP1593-CR

intoxicated.22 E.g., Kasian, 207 Wis. 2d at 622. Tullberg

nevertheless argues that probable cause is lacking under the

facts of the present case because Tullberg did not perform a

field sobriety test. We disagree because field sobriety tests

are not always possible, let alone required, and because

probable cause existed in this case without a field sobriety

test.

B. Exigent Circumstances

¶41 "Like our analysis of probable cause, the test for

determining the existence of exigent circumstances is an

objective one." Robinson, 327 Wis. 2d 302, ¶30 (citing Brigham

22
However, in his opening brief, Tullberg seems to argue
that this court in Swanson held that a field sobriety test is
required in order to establish probable cause of operating while
intoxicated. In a footnote in Swanson, this court stated:
"Unexplained erratic driving, the odor of alcohol, and the
coincidental time of the incident form the basis for a
reasonable suspicion but should not, in the absence of a field
sobriety test, constitute probable cause to arrest someone for
driving while under the influence of intoxicants." Swanson, 164
Wis. 2d at 453 n.6. However, we later clarified that "Swanson
did not announce a general rule requiring field sobriety tests
in all cases as a prerequisite for establishing probable cause
to arrest a driver for operating a motor vehicle while under the
influence of an intoxicant." Washburn Cnty. v. Smith, 2008 WI
23, ¶33, 308 Wis. 2d 65, 746 N.W.2d 243; see also State v.
Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996)
(stating that Swanson did not require an officer to administer a
sobriety test before determining probable cause exists to arrest
a suspect for operating while intoxicated). Instead, probable
cause is based on the totality of the circumstances on a case-
by-case basis. Smith, 308 Wis. 2d 65, ¶¶34-35; State v. Ward,
2000 WI 3, ¶26, 231 Wis. 2d 723, 604 N.W.2d 517; State v. Lange,
2009 WI 49, ¶¶42-43, 317 Wis. 2d 383, 766 N.W.2d 551 (Ziegler,
J., concurring); State v. Kennedy, 2014 WI 132, ¶21, ___
Wis. 2d ___, ___ N.W.2d ___.

21
 No. 2012AP1593-CR

City, Utah v. Stuart, 547 U.S. 398, 403-04 (2006); State v.

Smith, 131 Wis. 2d 220, 230, 388 N.W.2d 601 (1986)). To

determine if exigent circumstances justified a search, a

reviewing court determines "whether the police officers under

the circumstances known to them at the time reasonably believed

that a delay in procuring a warrant would . . . risk the

destruction of evidence." Id. (citing Smith, 131 Wis. 2d at

230).

¶42 Evidence of a crime is destroyed as alcohol is

eliminated from the bloodstream of a drunken driver. McNeely,

133 S. Ct. at 1556. "[W]hile the natural dissipation of alcohol

in the blood may support a finding of exigency in a specific

case, . . . it does not do so categorically. Whether a

warrantless blood test of a drunk-driving suspect is reasonable

must be determined case by case based on the totality of the

circumstances."23 Id. at 1563. Ultimately, "[i]n those drunk-

driving investigations where police officers can reasonably

obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so." Id. at 1561. Stated

differently, although the dissipation of alcohol in the

bloodstream of a suspected drunken driver alone does not

constitute an exigency justifying a warrantless draw of the

23
Because we consider the totality of the circumstances, no
single fact is dispositive. See State v. Hughes, 2000 WI 24,
¶41, 233 Wis. 2d 280, 607 N.W.2d 621.

22
 No. 2012AP1593-CR

suspect's blood, the totality of the circumstances may justify a

warrantless blood draw. See id. ("[S]ome circumstances will

make obtaining a warrant impractical such that the dissipation

of alcohol from the bloodstream will support an exigency

justifying a properly conducted warrantless blood test.").

While McNeely changed the landscape of warrantless blood draws

in Wisconsin, we note that the United States Supreme Court left

room for warrantless blood draws if exigencies exist. In fact,

the Court in McNeely used the term "exigent" or "exigency" no

fewer than ten times in the majority opinion. Thus, today we

determine whether, under the totality of the circumstances,

exigent circumstances justified the warrantless blood draw.

¶43 We conclude that, under the totality of the

circumstances, the draw of Tullberg's blood was justified by

exigent circumstances. A reasonable law enforcement officer,

confronted with this accident scene and these circumstances,

would reasonably conclude that the totality of the circumstances

rendered a warrantless blood draw necessary.
¶44 At the outset, we note that Deputy Hoffman did not

improperly delay in obtaining a warrant. He did not have

probable cause to believe that Tullberg operated the motor

vehicle while under the influence of an intoxicant until nearly

three hours after the accident. If anything, Tullberg's

actions, rather than the deputy's, necessitated the warrantless

blood draw.

¶45 Deputy Hoffman was dispatched in the early morning
hours to a horrific accident which involved a fatality. The
23
 No. 2012AP1593-CR

accident scene's terrain was rocky, wooded, steep, and trying.

No witnesses were available to be interviewed. After he

investigated the scene for five to ten minutes, firefighters and

emergency medical services persons arrived, followed shortly

thereafter by the arrival of Tullberg's frantic father, Melvin.

Deputy Hoffman reasonably called for backup, secured the scene,

talked with Melvin, spoke with Tullberg's brother over the

phone, and determined that he needed to go to the hospital to

investigate further.

¶46 We observe that Tullberg went from the accident scene

to his mother's house and then to a hospital in another county.

Tullberg's hospitalization required Deputy Hoffman to spend 30

minutes driving from the accident scene to the hospital, further

delaying his ability to interview Tullberg. See Schmerber, 384

U.S. at 770-71 (holding that exigent circumstances justified

warrantless draw of suspected drunken driver's blood partly

because the defendant went to a hospital after a car accident).

¶47 At the hospital, Tullberg and A.M. tried to mislead
the deputy into believing that the deceased, M.A., was the

driver of the truck when it crashed. Tullberg falsely stated

that M.A. was the driver.24 This deception required the deputy

to conduct additional investigation in order to determine who

the driver of the vehicle was at the time of the accident.

Specifically, this deception required Deputy Hoffman to question

24
Tullberg was convicted of obstructing an officer for
lying to Deputy Hoffman.

24
 No. 2012AP1593-CR

A.M. about who was driving the truck and to call Sergeant Wizner

to learn more information about the accident to determine who

was driving the truck. Ultimately, Deputy Hoffman had probable

cause to believe that Tullberg had operated a motor vehicle

while intoxicated, but only more than two and a half hours after

the accident. See id. at 769, 771 (holding that exigency

justified warrantless draw of suspected drunken driver's blood

that was performed more than two hours after car accident).

Deputy Hoffman, confronted with such an accident scene and

obstruction of his investigation, conducted himself reasonably.

¶48 Furthermore, at the time of the blood draw, Deputy

Hoffman knew that hospital staff was about to perform a CT scan

on Tullberg. The procedure could very well have taken a

considerable amount of time, and the CT scan could have revealed

that Tullberg needed immediate subsequent medical treatment.

The blood draw occurred more than two and a half hours after the

accident. Thus, if the blood draw had occurred after the CT

scan, the blood draw could have occurred long after the
accident, if ever. Based on his training, Deputy Hoffman knew

that a motorist's blood sample should be taken within three

hours of an automobile accident to ensure its accuracy and

admissibility as evidence. Deputy Hoffman therefore determined

that Tullberg's blood needed to be drawn before the CT scan to

ensure the blood was drawn within three hours of the accident.

Moreover, because Deputy Hoffman did not know whether the CT

scan would lead to subsequent medical treatment, he determined
that delaying the blood draw until after the CT scan could
25
 No. 2012AP1593-CR

result in the blood draw occurring much later than three hours

after the accident, if ever. Under these circumstances, Deputy

Hoffman could not have "reasonably obtain[ed] a

warrant . . . without significantly undermining the efficacy of

the search . . . ."25 See McNeely, 133 S. Ct. at 1561.

¶49 A law enforcement officer, such as Deputy Hoffman, who

is confronted with an accident scene, should first attend to the

emergency circumstances at hand. Deputy Hoffman properly spent

30 minutes investigating the accident scene. See Schmerber, 384

U.S. at 769, 770-71 (holding that exigent circumstances

justified warrantless draw of suspected drunken driver's blood

partly because officer needed to investigate the scene of a car

accident); McNeely, 133 S. Ct. at 1568 ("the need for the police

to attend to a car accident" is one factor that the exigency

analysis may consider). Deputy Hoffman did not spend an

unreasonable amount of time at the accident scene. He was the

25
To get a warrant to draw Tullberg's blood, Deputy Hoffman
would have needed to contact dispatch, who in turn would have
contacted a prosecutor for him. The prosecutor would have
contacted a staff member from the district attorney's office,
and together they would have prepared a warrant application.
The prosecutor then would have contacted a judge. In light of
this process, Deputy Hoffman could not have obtained a warrant
to draw Tullberg's blood before the CT scan, which Tullberg
urgently needed. Performing a blood draw on Tullberg after the
CT scan would have significantly undermined the efficacy of the
blood draw. We note that Deputy Hoffman could not have had
other officers assist him in obtaining a warrant while he
investigated the accident because he did not have probable cause
to have Tullberg's blood drawn until immediately before it was
drawn.

26
 No. 2012AP1593-CR

first person to respond to the accident, he discovered a body

under the truck, and he had to interact with Tullberg's frantic

father, Melvin, and other emergency personnel. He did not know

that Tullberg owned the vehicle until Melvin arrived at the

scene, and he did not know where Tullberg was until he spoke

with Tullberg's brother. Deputy Hoffman headed directly to the

hospital once other law enforcement officers arrived at the

accident scene to relieve him. An accident scene, such as the

one at issue, can create exigent circumstances which would

justify a warrantless blood draw.

¶50 Viewing the totality of these facts and circumstances,

Deputy Hoffman reasonably responded to the accident, secured the

scene, investigated the matter, and ultimately was left with a

very narrow time frame in which Tullberg's blood could be drawn

so as to produce reliable evidence of intoxication. This sort

of "now or never" moment is the epitome of an exigent

circumstance. See McNeely, 133 S. Ct. at 1561 ("The context of

blood testing is different in critical respects from other
destruction-of-evidence cases in which the police are truly

confronted with a 'now or never' situation.") (quoting Roaden v.

Kentucky, 413 U.S. 496, 505 (1973)) (quotation marks omitted).

However, we do not mean to suggest that a warrantless blood draw

would always require a "now or never" situation in order to be

justified by exigent circumstances. Rather, exigent

circumstances justify a warrantless blood draw if delaying the

blood draw would "significantly undermin[e] [its] efficacy."

27
 No. 2012AP1593-CR

See id. The "now or never" moment in the present case quite

clearly meets that test.26

¶51 Based on the foregoing discussion, we conclude that

exigent circumstances justified the warrantless draw of

Tullberg's blood. Deputy Hoffman acted reasonably and the

touchstone of the Fourth Amendment is reasonableness. See

Robinson, 327 Wis. 2d 302, ¶26; McNeely, 133 S. Ct. at 1558-60.

C. Arrest Not Necessary

¶52 Tullberg argues that the warrantless draw of his blood

was unconstitutional because he was not arrested before the

blood draw. We disagree.

¶53 Specifically, Tullberg argues that Schmerber and State

v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), required an

officer to arrest a suspect before having a sample of his or her

blood taken. Although the defendant in Schmerber was arrested

before his blood sample was taken, the Supreme Court in

Schmerber never suggested that a warrantless blood draw would be

26
In particular, although a blood sample taken more than
three hours after an accident can be admissible as evidence,
Deputy Hoffman reasonably concluded that allowing Tullberg to
undergo a CT scan before undergoing a blood draw would have
"significantly undermin[ed] the efficacy" of the blood draw.
See McNeely, 133 S. Ct. at 1561; see also id. at 1560-61
("[B]ecause an individual's alcohol level gradually declines
soon after he stops drinking, a significant delay in testing
will negatively affect the probative value of the results.");
id. at 1563 ("While experts can work backwards from the BAC at
the time the sample was taken to determine the BAC at the time
of the alleged offense, longer intervals may raise questions
about the accuracy of the calculation.").

28
 No. 2012AP1593-CR

unconstitutional unless performed subsequent to an arrest. In

fact, the Supreme Court in McNeely stated that "'absent an

emergency, [a search warrant is] required where intrusions into

the human body are concerned,' even when the search was

conducted following a lawful arrest." McNeely, 133 S. Ct. at

1558 (quoting Schmerber, 384 U.S. at 770). This quote suggests

that an exigency renders a warrantless blood draw

constitutional, regardless of whether the blood draw is

performed subsequent to a lawful arrest.

¶54 Tullberg's reliance on Bohling is also misplaced. In

Bohling, this court held that

a warrantless blood sample taken at the direction of a
law enforcement officer is permissible under the
following circumstances: (1) the blood draw is taken
to obtain evidence of intoxication from a person
lawfully arrested for a drunk-driving related
violation or crime,1 (2) there is a clear indication
that the blood draw will produce evidence of
intoxication, (3) the method used to take the blood
sample is a reasonable one and performed in a
reasonable manner, and (4) the arrestee presents no
reasonable objection to the blood draw.
Bohling, 173 Wis. 2d at 533-34. In footnote one, the court

explained that "[p]robable cause to arrest substitutes for the

predicate act of lawful arrest." Id. at 534 n.1 (citing

Bentley, 92 Wis. 2d at 863-64). Tullberg argues that Bentley is

inapposite because it was abrogated by McNeely. Indeed, the

McNeely Court expressly abrogated Bohling's holding that

dissipation of alcohol in the bloodstream of a suspected drunken

driver categorically constitutes an exigency. See McNeely, 133
S. Ct. at 1558 & n.2; State v. Kennedy, 2014 WI 132, ¶29, ___

29
 No. 2012AP1593-CR

Wis. 2d ___, ___ N.W.2d ___. However, the McNeely Court left

intact the holding in Bentley and Bohling that an arrest need

not precede a warrantless blood draw.

¶55 In sum, the Fourth Amendment provides sufficient

protection such that an arrest need not precede a warrantless

blood draw. When there is probable cause for a blood draw, as

there is in the case at issue, there also is probable cause to

arrest for operating while intoxicated. An arrest is not a

prerequisite to a warrantless blood draw justified by probable

cause and exigent circumstances.

¶56 Accordingly, we reaffirm that an arrest of a suspected

drunken driver need not precede a warrantless draw of the

suspect's blood in order for the blood draw to be

constitutional. See Erickson, 260 Wis. 2d 279, ¶¶5-12.

V. CONCLUSION

¶57 We conclude that the motion to suppress was properly

denied because the warrantless draw of Tullberg's blood was

supported by probable cause and exigent circumstances. Because
we conclude that the blood draw was constitutional, we need not

address the good faith exception.

By the Court.—The decision of the court of appeals is

affirmed.

30
 No. 2012AP1593-CR.ssa

¶58 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The

instant case is part of a trilogy of cases examining the

constitutionality of warrantless, nonconsensual blood draws

performed on persons suspected of driving under the influence of

an intoxicant in light of Missouri v. McNeely, 133 S. Ct. 1552

(2013). The other two cases in this trilogy are State v.

Kennedy, 2014 WI 132, ___ Wis. 2d ___, ___ N.W.2d ___, and State

v. Foster, 2014 WI 131, ___ Wis. 2d ___, ___ N.W.2d ___. For a

discussion of these three opinions, including the instant case,

and the issues arising therein, see my dissenting opinion in

State v. Foster, 2014 WI 131, ___ Wis. 2d ___, ___ N.W.2d ___.

1
 No. 2012AP1593-CR.ssa

1