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Wisconsin justices probe use of subpoenas to get suppressed blood test results in DUI case

At issue is whether results of a blood draw taken for medical treatment can be used as evidence after separate test results were deemed illegal because police did not get a warrant.

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Wednesday weighed the question of whether prosecutors can use a subpoena to get blood test results they believe will prove someone guilty of drunk driving if a warrantless blood test taken the same night had already been suppressed as evidence.

In March 2017, Daniel Van Linn crashed into a tree and a building and walked away from his car. A sheriff’s deputy responding to the crash found Van Linn bleeding in a nearby yard and smelled alcohol. A background check revealed he had four prior DUI convictions, subjecting him to a reduced .02% legal blood alcohol concentration under state law.

Van Linn – who admitted to drinking "a couple of beers" but claimed to have just been out for a walk – was taken to the hospital where his blood was drawn by hospital staff as a matter of course for diagnostic purposes. The deputy put Van Linn under arrest for a fifth-offense DUI and, citing exigent circumstances, took a separate sample of his blood for testing, which a crime lab later showed to be well above the restricted .02% blood alcohol concentration.

An Oconto County Circuit Court judge granted Van Linn’s motion to suppress the law enforcement blood sample because police did not get a warrant, making the search illegal. Three months later, prosecutors issued a subpoena to the hospital for Van Linn’s medical records, including the results of its diagnostic blood test conducted separate of law enforcement.

Van Linn unsuccessfully tried to get the subpoena quashed, pleaded no contest and appealed. The appellate court ruled in the state’s favor, saying the subpoenaed test results were from a source independent of the evidence acquired through the police’s illegal search, in part because they were intended to diagnose Van Linn, not prove he committed a crime.

That interplay between illegal evidence that is the “fruit from a poisonous tree,” per language from a 1939 U.S. Supreme Court decision, and evidence obtained through an independent source was central to the Wisconsin Supreme Court's discussion on Wednesday, as the justices and attorneys wrangled with whether using subpoenas in this way is a means for police to bring suppressed evidence above board.

That is essentially what was argued by Van Linn’s attorney, Assistant State Public Defender Andrew Hinkel, who questioned whether the subpoena “launders” the results of an illegal search in this case if the subpoena was prompted by what police learned in the illegal search, positing that prosecutors may never have subpoenaed for the hospital’s test results if they didn’t already know the illegal police test results proved Van Linn was drunk.

Justice Rebecca Grassl Bradley pushed back on that, keeping with the tree metaphor by arguing that because there are two different blood samples, “it’s not really the fruit of a poisonous tree because we have two separate trees.”

Multiple justices claimed it would have been easy to tell Van Linn was intoxicated based on all the facts, so prosecutors and police would not really need to be prompted by the suppressed test results to try to get the hospital’s test results since, as Grassl Bradley put it, “it seems pretty obvious that both blood draws are probably going to show he was intoxicated.”

Hinkel maintained officers likely would not have subpoenaed for the hospital’s results if the illegal results showed Van Linn was not drunk. He said a ruling in favor of the state would tell officers they have nothing to lose for conducting an unlawful search because it can be remedied by a subpoena later on, a manuever he referred to as a “belt and suspenders” approach.

Assistant Attorney General John Kellis argued for the state that the hospital’s blood draw results are not tainted because that diagnostic test would have happened regardless of whether the police ordered a blood draw, continuing the tree metaphor by saying “this isn’t growing from the same plant…this isn’t even growing in the same yard as the poisonous tree.”

Justice Ann Walsh Bradley came back to the question of whether a prosecutor would have sought the hospital’s test results if law enforcement’s test results had been deemed legal, concluding that “the response is that, of course they wouldn’t have.”

Kellis disagreed, putting forth that having two blood samples taken 20 minutes apart that show the same result would absolutely be valuable at trial and arguing that if the police had not taken blood, where else but the hospital would they go for blood evidence, particularly given that the naked eye could see Van Linn was drunk.

Justice Jill Karofsky pointed out that, especially in Wisconsin, where drunk driving is a huge issue, there’s no easier warrant to get than one to test for blood alcohol content, but Kellis stayed firm that officers would be prevented from abusing subpoenas as an end-around to cure evidence from illegal searches because getting these kinds of hospital records requires probable cause and judicial authorization.

The justices gave no timeline for their decision at the conclusion of arguments on Wednesday.

Follow @cnsjkelly
Categories / Appeals, Civil Rights, Criminal, Regional

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