APPLETON, WI (WTAQ-WLUK) – What can police do when they need a warrant overnight but can’t get ahold of an on-call judge? The Wisconsin State Patrol says it will use a ruling this week where a drunken driving conviction was overturned as a training tool.
The case started with a traffic stop nearly six years ago.
Brandon Taff 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 pulled over. 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 challenged the act, but an Outagamie County judge ruled against him. He was convicted, but then appealed.
Earlier this week, the state appeals court overturned the conviction, saying the troopers should have waited for a warrant, and didn’t make sufficient attempts to get one.
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,” 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 Department of Transportation provided a statement:
“Keeping impaired drivers off Wisconsin roadways is central to our department’s public safety mission. Wisconsin State Patrol officers receive extensive training, and the division continually reviews judicial case outcomes to identify lessons learned and integrate those insights into ongoing training efforts. Law enforcement officers must regularly make split-second decisions in the interest of community safety. These decisions must be carefully balanced within the framework of evolving legal standard,” the DOT said.
The agency could not comment about the specific officers involved in the Taff case.
Meanwhile, Outagamie County says it provides law enforcement with contact information for all of its judges, so that if one judge isn’t available, another can be reached.
Outagamie County Judge Carrie Schneider – the presiding judge for the county, and chief judge for the region – says the county has procedures in place for such situations.
While declining to comment on the specifics of this case, Judge Schneider – who was District Attorney before moving to the bench – discussed the county’s general practices.
Each year, an on-call list of judges is drafted and shared with all law enforcement agencies. While there is a designated on-call judge, if that person isn’t available or doesn’t answer, the officers should then move to another judge on the list. The system has been in place more than 20 years, she said.
Additionally, the sheriff’s department dispatch has a copy of the list for reference, should officers need it.
While most search warrants are now reviewed and approved electronically, officers may also go to judge’s homes to get warrants approved, Schneider said.
In smaller counties with fewer, and sometimes just one judge, judges from other counties cover for them, she said.
In Brown County, the judges also rotate duties. A cell phone and tablet are provided to the on-call judge. If they cannot be reached, the presiding judge is usually the next one called, a county official said.
In the Taff case, court records identify the judge who did not answer the calls as Judge Mark McGinnis.
As for Taff, the blood draw results showed a BAC of .044, which is below the legal limit. But he also tested positive for THC, which is prohibited. He was charged and convicted of operating a motor vehicle with a restricted controlled substance in his blood. 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.
The appeals court sent the case back to an Outagamie County to review the case without that evidence. No hearing has been scheduled.
Taff was also issued a citation for refusing to take the test for intoxication after an arrest. His license was revoked for a year, court records show.
Since then, Taff has also been cited for operating while suspended, and operating while revoked, court records show.
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