OWI and Refusing to Submit: Legality of a Search Warrant for Blood Draw

Under Wisconsin’s implied consent laws, if you are operating a vehicle in the state, you have agreed to consent to a chemical test of blood, urine, or breath. Once you are placed under arrest for operating while intoxicated (OWI), you are required to submit to testing. If you refuse, you face penalties, and the police officer can apply for a search warrant to forcibly obtain a blood sample. The legality of a search warrant for a blood draw was in question in the case of Wisconsin v. Moeser.

In 2017, Jeffrey Moeser was suspected of operating while intoxicated (OWI). Moeser had five prior convictions. Field sobriety tests and a preliminary breathalyzer test were administered; the breathalyzer test returned a blood alcohol content (BAC) of 0.195 percent. Because of his prior convictions, the legal limit was a BAC of 0.02. Moeser was arrested for suspected drunk driving and taken to the hospital for a blood draw.

When Moeser refused to consent to a blood draw at the hospital, the officer obtained a search warrant. Moeser challenged the warrant, arguing that the blood test results should have been suppressed because the affidavit in support of the search warrant for the blood draw was not sworn to by the person affirming the affidavit. The circuit court denied the motion to suppress; the Wisconsin Court of Appeals affirmed.

Moeser argued that 1) the circuit court erroneously denied his motion 2) the court of appeals erred in affirming that decision and 3) the requirement that warrant applications be "supported by oath or affirmation” under the Fourth Amendment to the United States Constitution and the Wisconsin Constitution was not met.

The Wisconsin Supreme Court found the affidavit fulfilled the oath or affirmation requirement under the constitutions, as specific procedure or language is not required when an oath or affirmation is administered. The Court affirmed the decision of the Court of Appeals, concluding the constitutional right to be free from abusive governmental searches was satisfied, and the circuit court did not err in denying Moeser's motion to suppress.