Convicted of an OWI 2nd, Erstad challenged the search warrant relied upon to collect and test her blood because: (1) the affidavit supporting the warrant contained false information; and (2) the warrant authorized the “collection” of her blood but not the “testing” of it. The court of appeals rejected both arguments.
If an affidavit supporting a warrant contains false information, then the court is to set aside the defective parts and determine whether the remaining content is sufficient to establish probable cause. Slip op. ¶6 (citing Franks v. Delaware, 438 U.S. 154, 155-156 (1978); State v. Mann, 123 Wis. 2d 375, 385-386, 388-389, 367 N.W.2d 209 (1985)). That’s what the circuit court and court of appeals did here. It set aside the 3 pieces of information that Erstad claimed were false and focused on the remainder of the affidavit. Unfortunately for Erstad, the remainder asserted that she was involved in an accident that occurred late at night or early in the morning; she exhibited numerous signs of intoxication; and she admitted to significant drinking. According to the court of appeals, those allegations readily supplied the requisite probable cause. ¶11.
As for the need to get a 2nd warrant authorizing the testing of her blood sample, three Wisconsin cases have rejected this argument. See State v. VanLaarhoven, 248 Wis. 2d 881, 637 N.W.2d 411 (Ct. App. 2001); State v. Riedel, 259 Wis. 2d 921, 656 N.W.2d 789 (Ct. App. 2003); and State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). Erstad readily acknowledges this fact. But she argue that all of these case rested on State v. Bohling, which was abrogated by Missouri v. McNeely, 133 S.Ct. 1552 (2013) and overturned by State v. Foster, 360 Wis. 2d 12, 856 N.W.2d 847 (2014). McNeely and Foster hold that a warrantless search is reasonable only if it falls within a recognized exception to the 4th Amendment’s search warrant requirement.
Here’s what the court of appeals thought of that point:
¶24 Erstad’s argument as to why McNeely calls Riedel into question is not clear, but the argument appears to be based on an assertion that Riedel and the cases it builds upon involved blood draws that were justified by the per se exigency exception that McNeely rejected, or by a mixture of this per se exception and the Implied Consent Law. Taking this assertion as true, I fail to see why it matters. Neither exigency nor the Implied Consent Law played a role in the Riedel court’s analysis of what police may do with a blood sample once they have lawfully obtained it. See Riedel, 259 Wis. 2d 921, ¶¶7-17. And, for the reasons explained above, Erstad’s blood was lawfully obtained based not on exigent circumstances or the Implied Consent Law but instead based on a warrant.