Missouri v. McNeely has changed the way La Crosse County police agencies are dealing with OWI arrests, at least in cases of refusals to allow blood tests in criminal OWI (2nd offense or greater). La Crosse area police are now applying for warrants from La Crosse County Circuit Court judges before taking their arrested subjects to the hospital for a blood draw.
In a recent City of Onalaska OWI I reviewed, the arresting officer, immediately upon getting a refusal to give a blood sample, typed out an affidavit using the computer in his police vehicle. It appears there was an electronic form already produced for that purpose into which he typed the information he believed supported probable cause to arrest (i.e., traffic stop, physical appearance/traits, field tests, PBT results). He then transmitted the affidavit via email to the judge who was responsible for issuing warrants that day, who was likely the judge assigned to intake at the La Crosse County Circuit Court. After reviewing the affidavit, the Judge called into La Crosse County emergency Dispatch, who then connected him to the officer's squad cell phone. The entire conversation was, therefore, digitally recorded by dispatch.
The Judge then swore the officer upon oath and asked whether the information in the affidavit was true. The officer said it was, and the Judge authorized the warrant. He indicated to the officer that the original would be signed and filed with the Court. This took place around Midnight, and the entire process took about 1/2 hour.
Wis. Stat. 968.12 et seq. allowed for electronic warrant applications either by affidavit or recorded testimony long before Missouri v. McNeely, but only now has this been used for OWI cases, but only in cases of refusal to test. It does not appear the police are seeking warrants in non-refusal cases, and it is unclear whether they will in non-criminal (first offense) cases. Regarding the non-refusal cases, the position seems to be that there is consent (an exception to the warrant requirement) by virtue of the arrested person's submission to test following the Implied Consent advisory. Whether agreeing to submit to a test after being read the advisory is valid "consent" is a question that still remains very much unresolved, in my opinion. Moreover, there should not be any reason to differentiate between first and subsequent OWI when applying for warrants. A search is a search. Finally, though McNeely dealt specifically with a blood test, there is no good reason to assume it does not apply equally to breath and urine tests.
State v. Bohling, is the Supreme Court of Wisconsin case that allowed warrantless blood draws in all valid Wisconsin OWI arrests. That bad law is now gone. The premise of that case was that every OWI created an emergency which allowed police to proceed to forcibly draw blood without first getting a warrant. That was obviously a fallacy, considering a warrant can be obtained with little delay. Some judges may be getting less sleep, and arresting officers will have to do a little more work, but that's the price of a constitutional system.
In a recent City of Onalaska OWI I reviewed, the arresting officer, immediately upon getting a refusal to give a blood sample, typed out an affidavit using the computer in his police vehicle. It appears there was an electronic form already produced for that purpose into which he typed the information he believed supported probable cause to arrest (i.e., traffic stop, physical appearance/traits, field tests, PBT results). He then transmitted the affidavit via email to the judge who was responsible for issuing warrants that day, who was likely the judge assigned to intake at the La Crosse County Circuit Court. After reviewing the affidavit, the Judge called into La Crosse County emergency Dispatch, who then connected him to the officer's squad cell phone. The entire conversation was, therefore, digitally recorded by dispatch.
The Judge then swore the officer upon oath and asked whether the information in the affidavit was true. The officer said it was, and the Judge authorized the warrant. He indicated to the officer that the original would be signed and filed with the Court. This took place around Midnight, and the entire process took about 1/2 hour.
Wis. Stat. 968.12 et seq. allowed for electronic warrant applications either by affidavit or recorded testimony long before Missouri v. McNeely, but only now has this been used for OWI cases, but only in cases of refusal to test. It does not appear the police are seeking warrants in non-refusal cases, and it is unclear whether they will in non-criminal (first offense) cases. Regarding the non-refusal cases, the position seems to be that there is consent (an exception to the warrant requirement) by virtue of the arrested person's submission to test following the Implied Consent advisory. Whether agreeing to submit to a test after being read the advisory is valid "consent" is a question that still remains very much unresolved, in my opinion. Moreover, there should not be any reason to differentiate between first and subsequent OWI when applying for warrants. A search is a search. Finally, though McNeely dealt specifically with a blood test, there is no good reason to assume it does not apply equally to breath and urine tests.
State v. Bohling, is the Supreme Court of Wisconsin case that allowed warrantless blood draws in all valid Wisconsin OWI arrests. That bad law is now gone. The premise of that case was that every OWI created an emergency which allowed police to proceed to forcibly draw blood without first getting a warrant. That was obviously a fallacy, considering a warrant can be obtained with little delay. Some judges may be getting less sleep, and arresting officers will have to do a little more work, but that's the price of a constitutional system.
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