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High court affirms probable cause warrant in OWI case

A warrant allowing a law enforcement officer to draw a fourth-time OWI offender’s blood was affirmed by the Wisconsin Supreme Court Wednesday.

The majority opinion delivered by Justice Brian Hagedorn, the court concluded that the probable cause warrant issued by Kenosha County Circuit Court Judge Bruce Schroeder was justified despite the circuit court backpedaling on that issued warrant during trial.

On May 25, 2014, Valiant Green was arrested at his home and charged for his fourth offense operating while intoxicated and fourth offense prohibited alcohol concentration. According to the court documents, Green refused to perform field sobriety tests and submit to a preliminary breath test. Kenosha County Police Officer Mark Poffenberger requested the blood draw warrant that was ultimately issued by Judge Schroeder. The results indicated a blood alcohol level of 0.214 g/100 mL, well over the legal limit. Green moved to suppress the results at trial alleging the warrant was deficient, his motion subsequently denied by the circuit court.

At trial, a jury found Green guilty of the OWI and PAC charges, but the OWI count was dismissed at the State’s request and a judgment entered against Green for the PAC count. The court of appeals affirmed this decision which led to Green petitioning for the high court’s review.

Green’s argument in his review petition indicated that Officer Poffenberger’s distinction of “driveway” on the warrant paperwork indicates that Green only operated within the confines of his own property and the evidence for a warrant was not sufficient due to Wis. Stat. §346.63(1)(a), (1)(b) “not apply to private parking areas at . . . single-family residences.” However, with the evidence of a citizen witness and additional support from the original affidavit infer that Green drove on a public road, invalidating his argument, according to the majority opinion.

Even though the circuit court later disagreed with its own decision to issue the warrant, the Supreme Court did not allow that to alter the scope of its review or decision in this case.

Only Justice Ann Walsh Bradley dissented, stating, “Green’s Fourth Amendment right protecting him against unreasonable searches was violated when law enforcement drew his blood based on a search warrant that wholly lacked probable cause.”

Justice Bradley would go on to describe that probable cause was inferred when there was not enough evidence to support it given the location filled in on the officer’s preprinted form. The form indicates an preprinted “at” and Office Poffenberger filled out the “driveway of [Green’s home address].” That information alone caused Judge Schroeder to admit “I did make an error in not frankly asking the officer” for “more data.”

Justice Bradley argued, “Confronted with the absence of probable cause here, the majority contrives to manufacture its presence.”

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