Frederica Freyberg:

There could be a lot of middle-of-the-night wake-up calls for judges across Wisconsin thanks to a ruling out of the U.S. Supreme Court this week. The high court ruled that police must now get a search warrant to draw blood from suspected drunk drivers. Right now in Wisconsin, that’s not required. So the ruling means a judge or commissioner will have to sign off on warrants, and most of them will be requested after bar time. It’s a big change for law enforcement. Joe Dececco is the District Attorney in Sheboygan County. He calls the ruling idiotic. Mr. District Attorney, thanks for joining us.

Joe Dececco:

My pleasure.

Frederica Freyberg:

Why do you think this ruling is idiotic?

Joe Dececco:

Perhaps it was an emotional response, but I did say it. One of the things it does, it goes against long-established law concerning the exigent circumstances of police being allowed to, without a search warrant, to obtain evidence. There’s a whole slew of cases which look upon the destruction of evidence or the imminent destruction of evidence as an exigent circumstance for police to seize it. I don’t know why they didn’t follow that in this case. The ruling itself is confusing and complex. I don’t really understand their rationale. It doesn’t matter, for example, that, what does matter is that the dissipation of that alcohol continues no matter what that person does. And that means that the level of alcohol in a person’s blood is continually diminishing by natural functions, but it doesn’t mean that, it doesn’t mean that getting a search warrant is the answer. I can’t think of any other case, either federal or state, in which exigent circumstances for the destruction of evidence has not been seen as an exigent circumstance to the 4th amendment.

Frederica Freyberg:

What will it mean for your county, having to get these warrants now?

Joe Dececco:

Well, our county right now, we have a very good after-hours warrants set up. Most drunk drivings occur after 5:00 p.m. on a weekday, 11:00, 12:00, 1:00, 2:00, 3:00 in the morning, which means we have to have a prosecutor, most of the time, me, go out and assist officers in imposing a search warrant and we do that. Now we’re going to have to address a number of search warrant situations that we never had to before. For example, in Sheboygan County last year, there were 67 refusals. All of them were taken without a warrant, because of the Wisconsin Supreme Court ruling which allowed for that, looking at the same information that the Supreme Court looked at, came to a completely different conclusion, and obviously, the Supreme Court of the United States is the ultimate judge on this. That means that in addition to the roughly 120 search warrants we did last year, we have to accommodate another 69, and almost all of those are going to be after-hours. We’re severely short on prosecutors, as we are throughout the state, and now to have to have someone get up in the middle of the night to get a search warrant for what we previously didn't do, which was previously accepted by almost every court in the country, is a big burden on us. We don’t know how that’s going to play out. We don’t know if in fact if we’ll be getting up three or four times a night for a series of drunk drivings. We didn’t have to do that before. So there’s definitely an impact on prosecutors at least in Sheboygan County, and certainly around the state.

Frederica Freyberg:

Won’t a lot of suspected drunk drivers just refuse to give their blood for blood alcohol tests, because you don’t have a warrant? Won’t they just say, no, I won’t and force you into that?

Joe Dececco:

There's another side to that. First offense OWIs in Wisconsin are not criminal. There are some exceptions to that, with a minor in the vehicle at the time. But they’re not criminal. Search warrants are only allowed for evidence of criminal activity, not noncriminal activity. So it looks like we’re not going to be able to get search warrants for an OWI first, so the refusal will stand. If we want blood results, which are the best results to get as far as evidence is concerned, we’re going to have to get search warrants for these other ones. We have to comply with the ruling. It’s a big burden on us.

Frederica Freyberg:

Now, defense lawyers agree with the ruling, saying, some of them, warrantless blood draws are an affront to individual liberty. What’s your reaction to that?

Joe Dececco:

Well, they haven’t been an affront to individual liberty for 50 years now, and suddenly they are. Look at our Supreme Court’s ruling, which looked at the same information and determined that exigent circumstances always exist in a drunk driving case, based on the blood dissipation in the system. So defense attorneys always, oh, this will hobble us. This has been the law for some time. Again, we must follow what the Supreme Court said, but it’s kind of somewhat disingenuous to start jumping all over the 4th Amendment now, when for years federal and state courts have found this was no violation.

Frederica Freyberg:

Just very quickly, sir, have you expecting some wake-up calls tonight?

Joe Dececco:

Well, I’ve advised all the law enforcement agencies in Sheboygan County, there are eight that serve our county, that until further notice we’ll simply go with the refusals until we can figure out. Now, this opinion did indicate that there may be some other circumstances, and they weren’t very clear on what they were that may add to the dissipation of alcohol in the blood to give probable cause due to exigent circumstances. We don’t know what they are. We’re waiting for the attorney general’s office to give us some clue as to what circumstances might be appropriate for warrantless blood draws.

Frederica Freyberg:

Joe Dececco, out of Sheboygan County, thanks very much.

Joe Dececco:

Thank you.