(dissenting).
¶ 54. The majority opinion is well intentioned. None of the members of the court is unconcerned about the continuing *214carnage from intoxicated drivers,1 or the continuing prevalence of impaired driving on Wisconsin roadways.2 These legitimate concerns underlay our decisions in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), and State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385.
¶ 55. The problem in this case is that the arresting officer was not satisfied with a voluntary, satisfactory, and useable chemical breath test from the defendant. He wanted a second test as backup. No reason was given for this second "search" of the defendant except the desire to gather additional evidence in the event it was needed. The circuit court later suppressed the product of this second search without a warrant on grounds that "exigent circumstances did not exist to justify the warrantless taking of Defendant's blood."
¶ 56. In order to justify a second warrantless taking, we axe forced to redefine "exigency" to the point that it becomes meaningless.
HH
¶ 57. The American Heritage Dictionary of the English Language defines "exigent" as an adjective that means "Requiring immediate action or remedy." The American Heritage Dictionary of the English Language *215642 (3d ed. 1992). An "exigency" is defined as a "pressing or urgent situation." Id. "Exigencies are "urgent requirements; pressing needs." Id. It is easy enough to explain a second search for breath, blood, or urine if one focuses narrowly on the fact that alcohol is dissipating in the blood stream at the time the search is undertaken. It is not so easy to justify a second search for backup evidence if one attempts to justify that search as an urgent requirement.
¶ 58. "Exigency" first appeared in Fourth Amendment jurisprudence in McDonald v. United States, 335 U.S. 451, 455-56 (1948). In that case, the Court suppressed evidence obtained when police intruded into the home of a suspected "numbers" operator. The officers, who had the defendant under surveillance for two months, entered by open window to arrest the suspect because the police heard an adding machine typically used in numbers operations. Justice Douglas, writing for the majority, reflected on the importance of the Fourth Amendment:
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the ab*216sence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.
Id. (emphasis added).
¶ 59. McDonald followed a line of cases that included Johnson v. United States, 333 U.S. 10 (1948). In Johnson, the Court explained the justification for one of the exceptions to the warrant requirement but it did not use the term "exigency." Instead it used the term "exceptional circumstances." Id. at 14-15. The Court addressed the search of a hotel room where, based on the smell of opium in the hallway, officers believed that narcotics activity would be found. The Court held that the officers could have, and therefore should have, obtained a warrant.
There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case. No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present evidence to a magistrate. There are never very convincing reasons and, in these circumstances, certainly are not enough to bypass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear. But they were not capable at any time of being reduced to possession for presentation to court.
Id. at 14-15 (emphasis added).
*217¶ 60. Three years later, in United States v. Jeffers, 342 U.S. 48 (1951), the Court was again presented with a warrantless hotel room search. The defendant in Jeffers attempted to bribe the hotel detective with $500 to let the defendant into a room occupied by his two aunts so that the defendant could retrieve something he had "stashed" in the room. The hotel detective asked that the defendant call hack later, and in the meantime phoned the police. The police investigated and tried knocking on the hotel room door, and, when nobody answered, the police had an employee let them into the hotel room. After a thorough search, they discovered narcotics in the room's closet. The Court found the search violated the Fourth Amendment and suppressed the evidence of the narcotics. The Court reviewed the principles of the Fourth Amendment ánd, in doing so, cited Johnson for the proposition that warrantless searches may be proper in "exceptional circumstances." Id. at 51. The Court cited McDonald for the proposition that the Government hears the burden of demonstrating that an exception to the warrant requirement may be justified, id., but the Court did not mention "exigency" in any manner.
¶ 61. The landmark decision in Schmerber v. California, 384 U.S. 757 (1966), is an important link in this line of cases, but it also did not use the terms "exigent" or "exigency." The relevant discussion instead used the term "emergency."
The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened "the destruction of evidence," Preston v. United States, 376 U.S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking *218stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.
Id. at 770-71 (emphasis added).
¶ 62. Over the years, the Wisconsin Supreme Court and the United States Supreme Court have characterized Schmerber as representing the "exigent circumstances" exception to the warrant requirement. See Winston v. Lee, 470 U.S. 753, 759 (1985); United States v. Dionisio, 410 U.S. 1, 8-9 (1973); State v. Bohling, 173 Wis.2d 529, 538, 494 N.W.2d 399 (1993).
II
¶ 63. In the present case, the police obtained satisfactory, useable evidence. Nothing threatened the destruction of that evidence. The only thing "threatened" was the destruction of additional evidence of the same character.
¶ 64. As a former prosecutor, I repeatedly represented to juries that machines to measure the alcohol content of breath were scientific and reliable. Consequently, it is hard to embrace the proposition that an "exigency" of constitutional stature exists to obtain backup evidence from samples of blood or urine. If that were correct, it would seem as though an exigency exists in every case in which blood is not drawn. Such an exigency is a built-in rationale for extended detention and additional tests potentially amounting to harassment.
*219¶ 65. If the officer in this case had offered any compelling explanation for why a second test was "needed" as opposed to "desired," I would probably not be writing this dissent. But on the facts presented, I cannot conclude that the second warrantless search of the defendant was entitled to march with other recognized "exigencies" in our law. The result in this case untethers the "exigent circumstances" exception to the warrant requirement from the premises supporting the exception. I join the opinion of the Chief Justice and respectfully dissent.
¶ 66. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.There were 37,775 people arrested for operating while intoxicated on Wisconsin roadways in 2002. Id.