¶ 18. (concurring). With little confidence, I join the majority opinion. My hesitancy about this case stems not from the majority opinion, but rather from the case on which it is founded — State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089 (2002). In my judgment, Krajewski is internally inconsistent and sends mixed signals. I join my colleagues in this case only because an isolated passage in Krajewski mandates an affirmance and I, like the majority, am bound by the pronouncements of our supreme court. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).
¶ 19. The ultimate holding of Krajewski is that "the warrantless blood draw in this case was properly based on exigency and complied with [the] factors enumerated in Bohling."1 Krajewski, 255 Wis. 2d 98, ¶ 3.1 agree with this holding. I also agree with the logic of Krajewski, which explains in some detail why the exigency of dissipating alcohol persists even in the face of an existing breath test. Id., ¶¶ 40-42. Unfortunately, the opinion prefaces this discussion with the following sentence upon which the majority hangs its hat: "[t]he exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Id., ¶ 40; Majority at ¶ 12.
¶ 20. Having made that statement, Krajewski then embarks on a discussion which seems to contradict it. In the very next sentence, Krajewski says, "Securing *796a breath test rather than a blood test may not be satisfactory to law enforcement because an officer may want to determine whether the person is also under the influence of controlled substances."2 Krajewski, 255 Wis. 2d 98, ¶ 40.
¶ 21. But the contradiction does not stop there. In the very next paragraph, Krajewski states, "Even when a person submits to a breath test in lieu of a blood test — outside the provisions of the implied consent statute — the test may be subject to challenge on grounds that the person's consent to the test was not given freely and voluntarily." Id. at ¶ 41. While Faust's breath test was administered under the auspices of the implied consent law, that law does not guarantee that the requirements of the criminal law governing the free and voluntary giving of consent have otherwise been satisfied. Moreover, the implied consent statute does not restrict the police from using other constitutional means to collect evidence of the driver's intoxication. State v. Gibson, 2001 WI App 71, ¶ 12, 242 Wis. 2d 267, 626 N.W.2d 73.
¶ 22. In short, my concern is that the police do not have a crystal ball in these situations, a proposition which the Krajewski decision seems to recognize. While the police here presumably believed that they had obtained a valid breath test, this does not guarantee, in the very words of Krajewski, a satisfactory and useable breath test. That determination would depend on a *797future ruling by the trial court in the event Faust should challenge the breath test. We must bear in mind that this case is before us via the State's appeal from the trial court's order granting Faust's motion to suppress. See Wis. Stat. § 974.05(1)(d)2. Thus, this case remains pending in the trial court.
¶ 23. This same concern applies to Faust's status as an alleged third-time offender. Faust's breath test produced a result of 0.9 grams of alcohol per 210 liters of breath, which was above the 0.8 level for such an offender, but below the .10 level for a first- or second-time offender. Wis. Stat. § 885.235(lg)(c), (cd). Here again, without a crystal ball, the police had no assurance that some or all of Faust's prior convictions would go unchallenged. Should that occur and should any one of the prior two convictions be unfounded, the State will be required to prove that Faust operated a motor vehicle with a PAC of .10 or more, not 0.8 or more. Both this court and the supreme court have seen a steady stream of challenges (some successful) to alleged prior convictions in criminal cases. See State v. Saunders, 2002 WI 107, ¶ 1, ¶ 54, 255 Wis. 2d 589, 649 N.W.2d 263; State v. Wideman, 206 Wis. 2d 91, 94, 107-08 n.24, 556 N.W.2d 737 (1996); State v. Koeppen, 195 Wis. 2d 117, 121, 130, 536 N.W.2d 386 (Ct. App. 1995); State v. Theriault, 187 Wis. 2d 125, 130, 132 n.1, 522 N.W.2d 254 (Ct. App. 1994); State v. Goldstein, 182 Wis. 2d 251, 254, 261, 513 N.W.2d 631 (Ct. App. 1994).3
*798¶ 24. The supreme court's isolated statement in Krajewski, upon which the majority opinion rests, appears to hold that the exigency of an OWI suspect's dissipating alcohol level is eliminated because a blood test would merely provide corroborating evidence of the breath test.41 have examined the law of exigent circumstances and can find no case law or other commentary that has made this statement. To the contrary, in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), where our supreme court first approved the forcible taking of an OWI suspect's blood draw, the court said:
We hold that the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of *799a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication.
Id. at 547-48. Here, all of the factors contemplated by Bohling were present. The dissipation of alcohol existed as a matter of law. The blood draw was taken at the direction of a law enforcement officer. Finally, there was clear evidence that a blood draw would produce evidence of intoxication. If I were writing on a clean slate, I would hold that the exigency of Faust's dissipating blood alcohol level was not eliminated simply because the police had already obtained a breath test result.
¶ 25. Appellate courts sometimes criticize the police for failing to conduct a thorough investigation. See State v. Kieffer, 217 Wis. 2d 531, 550-51, 577 N.W.2d 352 (1998). Here, we criticize the police for being too thorough. I dislike the result in this case. But given the supreme court's utterance in Krajewski, I see no choice but to affirm. I reluctantly concur.
State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).
Wisconsin Stat. § 346.63(1) prohibits not only operating under the influence of an intoxicant, but also operating under the influence of a controlled substance, a controlled substance analog, or any combination of the three. The statute also prohibits operating under the influence of any other drug that impairs the ability to operate a motor vehicle or any combination of an intoxicant and such drug.
The same can be said for the steady stream of challenges that the appellate courts have seen to breathalyzer results. See, e.g., City of New Berlin v. Wertz, 105 Wis. 2d 670, 672, 314 N.W.2d 911 (Ct. App. 1981) (defendant moved to suppress the breathalyzer test results on the grounds that the testing procedures and methods did not meet certain administrative code requirements); State v. Walstad, 119 Wis. 2d 483, 504, 351 *798N.W.2d 469 (1984) (defendant challenged the breathalyzer result before trial court based on whether a used breathalyzer test ampoule is retestable); State v. Busch, 217 Wis. 2d 429, 436, 576 N.W.2d 904 (1998) (defendant moved to suppress on grounds that modified version of intoxilyzer machine had not been evaluated and approved for use by the chief of the chemical test section); State v. Dwinell, 119 Wis. 2d 305, 308, 349 N.W.2d 739 (Ct. App. 1984) (defendants challenged the admission of breathalyzer test results on grounds that the intoxilyzer machine, the Intoximeter 3000, was an unreliable and inaccurate measuring device); State v. Burkman, 96 Wis. 2d 630, 634, 292 N.W.2d 641 (1980) (the trial court excluded breathalyzer results because the officer failed to comply with administrative procedures requiring that the subject be kept under continuous observation for at least twenty minutes prior to the collection of the breath specimen). In addition, this court has addressed the admissibility of breathalyzer test results in a steady stream of single judge appeals.
Of course, if the breath test should be suppressed, the blood test would not be corroborating evidence. Instead, it would be the only evidence of a PAC violation. The same is true if any of Faust's prior convictions should be struck.