Brandon Taff (Outagamie Co. Jail)
OUTAGAMIE COUNTY, WI (WTAQ-WLUK) – An appeals court Tuesday overturned a drunk driving conviction, ruling officers erred when they directed hospital staff to do a blood draw without a warrant when the on-call judge wasn’t available to authorize the sample.
Brandon Taff was was pulled over at 1:13 a.m. on May 10, 2019, in Grand Chute by the Wisconsin State Patrol. He told them he had had five beers at a Green Bay-area casino, but stopped drinking about 90 minutes before he was stopped. After a field sobriety test, he was arrested.
Taff was taken to the hospital for a blood draw. He refused. The troopers made nine calls to the on-call judge, trying to get a warrant, but were not successful. Concerned that the passage of time would dissipate the evidence in his blood, the troopers told hospital staff to do the blood draw without the warrant.
“Taff’s blood alcohol concentration (BAC) was .044 g/100 mL, which is below the legal limit. The blood sample also revealed 4.7 ng/mL of Delta-9 THC. The State charged Taff with OWI and operating a motor vehicle with a restricted controlled substance in his blood, both as a third offense,” the ruling explains.
Taff challenged the blood draw, but a judge upheld it. Taff was convicted. He then appealed.
In a 14-page ruling issued Tuesday, the appeals court overturned the decision.
“In this case, based on the totality of the circumstances, we conclude that the troopers’ actions were unreasonable and that exigent circumstances did not justify Taff’s warrantless blood draw. As we outlined above, it is undisputed that Sasse read Taff the Informing the Accused form at 2:00 a.m., and Taff refused to consent to the blood draw. Despite his refusal, the troopers delayed starting the warrant process until they arrived at the hospital, approximately 15 minutes later. As a result, the warrant process did not begin until roughly one hour into this “run-of-the-mill OWI investigation,” the ruling states.
“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,” the ruling states.
The judge’s unavailability didn’t automatically create exigent circumstances to allow the blood draw without the warrant, the court ruled.
The case was sent back to the circuit for further proceedings.
Taff originally was sentenced to 50 days in jail, placed on probation for a year, and had his driver’s license suspended for two years, court records show.
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