(dissenting). The issue in this case is a narrow one: When a person is lawfully arrested without a warrant for operating a motor vehicle while intoxicated (whether a crime or civil forfeiture), under what circumstances may the state order that the operator's blood be drawn without a search warrant?1 The majority responds that in every lawful arrest for operating while intoxicated "exigent circumstances" exist to justify an intrusion into the operator's body without a search warrant. According to the majority, exigent circumstances exist solely because "alcohol rapidly dissipates in the bloodstream." Majority op. at 539. Thus the majority opinion holds that the exigency created by the dissipation of alcohol makes seizure of a blood sample without a warrant reasonable per se under the Fourth Amendment.
I agree with the holdings of the circuit court and the court of appeals: the per se rule urged by the state and adopted by the majority violates the Fourth Amendment. I further agree with the circuit court and the court of appeals that to justify a warrantless extraction of the operator's blood upon a lawful warrantless arrest of oper*549ating a vehicle while intoxicated, the state must prove that it could not have obtained a search warrant without destruction of the evidence.2 This holding satisfies both the Fourth Amendment and the public interest in prosecuting drunk drivers.
1 conclude, as did the other two courts, that a search warrant is required under the facts of this case. My reasoning is as follows:
1. The drawing of blood is a seizure that must comply with the Fourth Amendment of the federal Constitution. Schmerber v. California, 384 U.S. 757 (1966).
2. A warrantless seizure is unreasonable under the Fourth Amendment unless it falls within one of the exceptions to the warrant requirement.3
3. One exception to the Fourth Amendment warrant requirement is the existence of exigent circumstances. The exigent circumstances exception is narrow, and the state's burden to prove the existence of exigent circumstances is heavy. Welsh, 466 U.S. at 750.
4. The exigent circumstances exception may be applied to the seizure of blood. Schmerber, 384 U.S. at 770-71; Majority op. at 537. Because the percentage of alcohol in the blood begins to diminish shortly after a person stops drinking intoxicating beverages, delay in *550taking the blood sample may, in some cases, imperil the evidence of blood alcohol concentration.
5. Exigent circumstances justify the seizure of blood without a warrant when the arresting officer reasonably believes that delay caused by securing a warrant could result in the destruction of evidence. Majority op. at 538. Schmerber, 384 U.S. at 770-71, teaches that law enforcement officers and courts must examine the facts of each case to determine whether the delay in obtaining a search warrant would hamper the procurement of evidence.
6. In this case there was sufficient time to secure a warrant without risking the destruction of the evidence of intoxication. Therefore this case does not fall within the exigent circumstances exception.
First, the certainty that alcohol "disappears" over a period of time does not automatically justify a warrant-less invasion of a person's body. As Judge Sundby explains in the court of appeals' opinion, alcohol dissipates over a fairly long period.4 It takes time before an individual attains a peak blood alcohol concentration, and it takes five hours to eliminate all alcohol from the blood of a suspect having a blood alcohol concentration of .10 percent when arrested. Furthermore, expert testimony can predict the rate of dissipation of alcohol in the blood of a particular person. Thus, the arrestee's blood alcohol concentration at the time of operation of a vehicle can be established from a blood sample obtained a considerable time after operation.5
*551Second, the state did not show that there was insufficient time to obtain a warrant. According to the record, the defendant was in custody for almost two and one-half hours before the blood sample was taken. About an hour and 15 minutes elapsed between the defendant's refusal to allow blood to be drawn and the taking of the blood sample.6 Although a warrant can be obtained through expedited telephone procedures in Wisconsin, sec. 968.12(3), Stats. 1989-90, the officers made no attempt to obtain a warrant.7 The state had the burden to show that there was insufficient time to use the tele*552phonic search warrant procedure.8 It failed to carry that burden.9
For these reasons, I dissent and join the circuit court and the court of appeals in holding that the failure to obtain a search warrant in this case violated the Fourth Amendment. I am authorized to state that Chief Justice Nathan S. Heffernan and Justice WILLIAM A. BABLITCH join this dissent.
The same evidence that gave the law enforcement officer probable cause to make the arrest would give the officer probable cause to believe that an analysis of the operator's blood would yield evidence.
See State v. Moylett, 836 P.2d 1329, 1335 (Or. 1992).
In Schmerber the Court analogized the drawing of blood to the search of a personal residence and concluded that "search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required when intrusions into the human body are concerned." Schmerber v. California, 384 U.S. at 770.
In Welsh v. Wisconsin, 466 U.S. 740, 749 (1984), quoting Payton v. New York, 445 U.S. 573, 586 (1979), the Court stated that "searches and seizures inside a home without a warrant are presumptively unreasonable."
"When we talk about 'destruction' of the evidence of intoxication, we are talking about hours." State v. Welsh, 108 Wis. 2d 319, 357, 321 N.W.2d 245 (1982) (Abrahamson, J., dissenting), rev'd, Welsh v. Wisconsin, 466 U.S. 740 (1984).
For discussions of absorption and dissipation of alcohol in the blood, see, e.g., Pariser, In Vino Veritas: The Truth About *551Blood Alcohol Presumptions in State Drunk Driving Law, 64 N.Y.U. L. Rev. 141 (1989); Note, Shed Thou No Blood: The Forcible Removal of Blood Samples from Drunk Driving Suspects, 60 S. Cal. L. Rev. 1115 (1987).
The law enforcement officer in this case believed that because of the dissipation of alcohol in the blood he had to get a sample within three hours of the accident. Under sec. 885.235(1), Stats. 1989-90, if the sample is taken within three hours after the event to be proved, the test results are admissible without expert testimony. If the blood sample is not taken within three hours after the event to be proved, the test results may be admissible if expert testimony establishes its probative value. Section 885.235 (3), Stats. 1989-90.
The legislative intent behind the telephonic warrant procedure is to encourage use of warrants and minimize resort to war-rantless searches when circumstances might otherwise be exigent. United States v. Talkington, 843 F.2d 1041, 1046-47 (7th Cir. 1988) (quoting Advisory Committee Notes to 1977 Amendment to Federal Rule 41). The Wisconsin telephonic warrant procedure is modeled after the federal rule.
The Seventh Circuit Court of Appeals has held that the government in meeting its burden of showing exigent circumstances in a warrantless search of premises must demonstrate affirmatively that it was impractical to obtain a telephonic warrant. See, e.g., United States v. Talkington, 843 F.2d 1041, 1045-47 (7th Cir. 1988); United States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987); United States v. Diaz, 814 F.2d 454, 457 (7th Cir.), cert. den., 484 U.S. 857 (1987).
Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 623 (1989), does not establish, as the majority opinion asserts, that exigent circumstances are present whenever public safety is furthered through procurement of a blood sample. Skinner approved federal regulations mandating warrantless blood and urine tests of railroad employees following rail accidents. The decision was not based, however, on principles applicable to the investigation of crimes. The Court emphasized that the usual warrant and individualized suspicion rules in criminal cases were inapplicable to the administrative testing of railroad employees because the testing of railroad employees was not mandated "to assist in the prosecution of employees but rather 'to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.' " Id. at 620-21 (note omitted).