OWI – Suppression of Evidence – Blood Test

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Johnathan L. Johnson

Case No.: 2019AP1398-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: OWI – Suppression of Evidence – Blood Test

Johnathan Johnson appeals a judgment, entered upon his no-contest plea, convicting him of fifth offense operating a motor vehicle with a prohibited alcohol concentration (PAC). Johnson contends the circuit court erred, for two reasons, by denying his motion to suppress the results of an evidentiary chemical test of his blood. First, Johnson argues his constitutional right to be free from unreasonable seizures was violated when a McDonald’s restaurant employee delayed the delivery of Johnson’s food order until officers responded to the employee’s 911 call reporting that Johnson appeared to be operating his vehicle while intoxicated. Johnson reasons that because the 911 dispatcher stated “okay” in response to being informed by the employee of her decision to delay the delivery of Johnson’s food, the State sanctioned a violation of a “fast food contract.” Second, Johnson argues that the judge who authorized a search warrant for the collection of his blood administered an oath to the officer seeking the warrant that was “fundamentally defective” because the oath did not include the words “so help me God.”

Regarding Johnson’s first argument, we conclude that Johnson has failed to show the existence of—much less the violation of—a “fast food contract” that required the McDonald’s employees to avoid delaying the delivery of his food. Further, because Johnson was not delayed at the McDonald’s premises at the request of the State and was at all times free to leave prior to the arrival of law enforcement, we conclude that no seizure occurred.

As to Johnson’s second argument, we conclude that the warrant authorizing the search was supported by a statement made under “oath or affirmation,” as required by the Fourth Amendment to the United States Constitution, article I, section 11 of the Wisconsin Constitution, and various Wisconsin statutes. We reach this conclusion in light of our supreme court’s statement that the validity of an oath or affirmation is a “matter of substance, not form,” see State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473, in conjunction with the undisputed fact that the police officer seeking the search warrant swore to the warrant-issuing judge that the statements made in the affidavit supporting the warrant application were true. Consequently, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.