Defense win: COA suppresses evidence from warrantless blood draw, vacates OWI conviction
State v. Brandon J. Taff, 2024AP373, 2/17/26, District III (ineligible for publication); case activity
COA reverses Taff’s conviction on the basis that his warrantless blood draw was not justified by exigent circumstances, and therefore should have been suppressed.
State Troopers stopped Taff on the highway around 1:13 a.m. Taff told the troopers that he had been at a casino, he’d had five beers while he was there, and he had stopped drinking 1.5 hours prior to being stopped. He submitted to field sobriety testing and was arrested. (¶2). At 2 a.m., Taff refused a blood draw and was driven to a hospital 15 minutes away. (¶3). Once at the hospital, the troopers obtained the duty judge’s information, attempted to call the judge at the two phone numbers provided by dispatch a total of 9 times, and then “decided to go with exigent circumstances” at 2:45 a.m. (¶¶4-5).
The results showed that Taff’s BAC was .044 g/100 mL, and he had 4.7 ng/mL of Delta-9 THC in his blood. (¶4). The circuit court denied Taff’s motion to suppress the results of the warrantless blood draw. (¶5). Taff appeals, arguing that the state lacked exigent circumstances to justify the warrantless blood draw. (¶11). In response, the state asserts that “judicial unavailability” created an
exigent circumstance because “a further delay of an indeterminate length in reaching a judge” could have undermined the efficacy of the search due to the dissipation of alcohol from the blood. (¶12).
COA describes the circumstances as follows:
Once at the hospital, the troopers attempted to contact the judge over a period of about 30 minutes. When they concluded that the on-call judge was unavailable, approximately one and one-half hours remained of the three-hour evidentiary window pursuant to WIS. STAT. § 885.235(1g). Nevertheless, the troopers made no further attempts to secure a warrant by, for example, continuing to attempt to contact the on-call judge; traveling to that judge’s home to attempt to obtain a search warrant; consulting with a supervisor; calling dispatch again to find out if there was a procedure to be used when the on-call judge was unavailable; calling another judge in the jurisdiction; or pursuing any alternative means to obtain judicial authorization.
(¶19). The court holds that the search was unconstitutional because the state did not have exigent circumstances. “Under these circumstances, the State has failed to demonstrate the requisite level of urgency necessary to excuse the warrant requirement.” It reasoned that, “[t]he temporary unavailability of a single judge for approximately 30 minutes does not create exigent circumstances where officers delayed initiating the warrant process, failed to pursue reasonable alternatives, and still had nearly half of the statutory evidentiary window remaining.”
The court also rejects “any suggestion that the unavailability of an on-call judge automatically creates exigent circumstances.” Although it recognizes that the unavailability of an on-call judge could contribute to a finding of exigent circumstances, it did not in this case. (¶23).