State v. Brandon J. Taff

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COURT OF APPEALS

DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
eee See
February 17, 2026 oo
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See Wis. STAT. § 808.10
and RULE 809.62.
Appeal No. 2024AP373-CR Cir. Ct. No. APOCTIG
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT il
STATE OF WISCONSIN,
PLAINIIFF-RESPONDENT,

V.
BRANDON J. TAFF,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the carcuit cout for
Outagamie County: VINCENT R. BISKUPIC, Judge. Reversed and cause
remanded for further proceedings.

{1 STARK, PJ. Brandon J. Taff appeals from a judgment convicting
him, pursuant to a jury verdict, of operating a motor vehicle while intoxicated

' This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.

No. 2024AP373-CR
2
(OWI) and with a restricted controlled substance in his blood, both as a third
offense.2 Taff challenges the circuit court’s denial of his motion to suppress the
results of a warrantless blood draw, arguing that exigent circumstances did not
justify drawing Taff’s blood without a warrant. Because we conclude that the
State failed to meet its burden to demonstrate that Taff’s blood draw was lawfully
conducted without a warrant, we reverse Taff’s judgment of conviction and
remand to the circuit court for further proceedings.
BACKGROUND
¶2 At approximately 1:13 a.m., on May 10, 2019, Trooper Joshua Sasse
and Trooper Rettie,3 both with the Wisconsin State Patrol, executed an
investigatory stop on Taff’s vehicle in the Town of Grand Chute, Wisconsin.4
Taff told the troopers that he was returning from the casino in Green Bay, that he
had five beers while he was there, and that he had stopped drinking one and
one-half hours prior to being stopped. The troopers administered field sobriety
tests on Taff, and based on his performance on those tests, he was arrested.
2 Taff explains in his brief-in-chief that judgment was entered on both counts, but the
parties later agreed, by stipulation, that one of the two counts should have been dismissed by
operation of law. See WIS. STAT. § 346.63(1)(c). The circuit court later ordered Taff’s
conviction and sentence on the OWI count vacated, the charge dismissed, and the judgment of
conviction amended. Nevertheless, Taff observes that an amended judgment of conviction has
not been filed. In light of our decision, however, we need not order the judgment of conviction
corrected.
3 Trooper Rettie’s first name does not appear in the record on appeal.
4 Taff does not argue that he was not driving or challenge the basis for the stop.

No. 2024AP373-CR
3
¶3 After arresting Taff, Sasse requested that Taff consent to a blood test
and read him the Informing the Accused form at 2:00 a.m.5 See WIS. STAT.
§ 343.305(4). Taff did not consent, and the troopers transported Taff to the
hospital, which was a 15-minute drive from their location. Once at the hospital,
the troopers called dispatch to obtain the on-call judge’s name and information.
The troopers then proceeded to call the two numbers that dispatch had provided
for the on-call judge. In total, the troopers called the judge nine times, but the
judge never answered the phone or called them back.
¶4 After determining that the on-call judge was unavailable, the
troopers discussed their options, and, believing that exigent circumstances existed
to collect a blood sample, they directed hospital staff to perform a warrantless
blood draw, which occurred at 2:45 a.m. Taff’s blood alcohol concentration
(BAC) was .044 g/100 mL, which is below the legal limit. The blood sample also
revealed 4.7 ng/mL of Delta-9 THC. The State charged Taff with OWI and
operating a motor vehicle with a restricted controlled substance in his blood, both
as a third offense.
¶5 Taff moved to suppress the results of the warrantless blood draw,
and the circuit court held an evidentiary hearing, during which Sasse testified.
According to Sasse, the troopers “decided to go with exigent circumstances to
retrieve [Taff’s] blood based off the fact that [they] didn’t want evidence to start
dissipating in his blood.” Sasse testified that he was aware that after three hours,
blood sample evidence “drops dramatically in regards to admissibility.” The court
5 The troopers had first requested that Taff submit to a preliminary breath test (PBT), but
Taff refused.

No. 2024AP373-CR
4
sought supplemental briefing on the question of the unavailability of an on-call
judge. Thereafter, the court issued a written decision denying Taff’s motion to
suppress the evidence based on its conclusion that “the unavailability of the
on-call judge combined with the dissipation of alcohol in Taff’s blood constituted
exigent circumstances.”6
¶6 A jury found Taff guilty of both charged offenses. Taff appeals.
DISCUSSION
¶7 Pursuant to the Fourth Amendment, blood tests to determine alcohol
concentration are “searches,” which, if conducted at the request of law
enforcement without a warrant, are presumptively unreasonable for Fourth
Amendment purposes unless they fall within a recognized warrant exception.
Missouri v. McNeely, 569 U.S. 141, 148 (2013). One exception, relevant to the
facts of this case, is exigent circumstances, i.e., “the exigencies of the situation
make the needs of law enforcement so compelling that a warrantless search is
objectively reasonable.” Id. at 148-49 (citation omitted); see also State v. Howes,
2017 WI 18, ¶23, 373 Wis. 2d 468, 893 N.W.2d 812 (“One exception to the
warrant requirement is the exigent circumstances doctrine, which holds that a
warrantless search complies with the Fourth Amendment if the need for a search is
urgent and insufficient time to obtain a warrant exists.” (citation omitted)).
¶8 “Alcohol dissipates as it is absorbed in the bloodstream and
metabolized; therefore, the passage of time between alleged intoxicated driving
and the collection of a blood sample affects the quantity of alcohol that testing will
6 Taff filed a motion for reconsideration with the circuit court, which was also denied.

No. 2024AP373-CR
5
reveal.”7 State v. Dieter, 2020 WI App 49, ¶12, 393 Wis. 2d 796, 948 N.W.2d
431. However, “the dissipation of alcohol in the blood does not create an
exigency per se”; instead, “[w]hether a warrantless blood test of a drunk-driving
suspect is reasonable must be determined case by case based on the totality of the
circumstances.” State v. Dalton, 2018 WI 85, ¶42, 383 Wis. 2d 147, 914 N.W.2d
120 (alteration in original; citation omitted). The United States Supreme Court
has instructed that “[i]n those drunk-driving investigations where police officers
can reasonably obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth Amendment
mandates that they do so.” McNeely, 569 U.S. at 152.
¶9 “[T]he test for determining the existence of exigent circumstances is
an objective one.” State v. Tullberg, 2014 WI 134, ¶41, 359 Wis. 2d 421, 857
N.W.2d 120 (citation omitted). “The test … is satisfied when officers have
probable cause to search and, based on the totality of the circumstances, they
reasonably believe that obtaining a warrant for a blood test would ‘significantly
undermin[e] the efficacy of the search.’” Dieter, 393 Wis. 2d 796, ¶13 (alteration
in original; citation omitted). It is the State’s burden to prove that the exigent
circumstances exception to the warrant requirement applies. State v. Kennedy,
2014 WI 132, ¶34, 359 Wis. 2d 454, 856 N.W.2d 834.
¶10 This case comes before us on a challenge to the denial of Taff’s
motion to suppress. “Our review of an order granting or denying a motion to
7 WISCONSIN STAT. § 885.235 recognizes the impact that the passage of time has on the
evidence. Under that statute, if a blood sample is drawn within three hours of an incident of
alleged intoxicated driving, the test result is admissible without expert testimony, but if it is
drawn outside the three-hour window, the result is admissible only if supported by expert
testimony establishing its probative value. Sec. 885.235(1g), (3).

No. 2024AP373-CR
6
suppress evidence presents a question of constitutional fact.” Tullberg, 359
Wis. 2d 421, ¶27 (citation omitted). The circuit court’s findings of evidentiary or
historical fact will not be overturned unless they are clearly erroneous, but “we
independently apply constitutional principles to those facts.” Id. (citations
omitted). We also apply this two-step inquiry to determine whether exigent
circumstances justified a warrantless search. State v. Richter, 2000 WI 58, ¶26,
235 Wis. 2d 524, 612 N.W.2d 29.
¶11 On appeal, Taff argues that the circuit court erred by denying his
suppression motion because his warrantless blood draw was unreasonable,
unconstitutional, and not justified by exigent circumstances under the totality of
the circumstances. According to Taff, “[t]he troopers here ‘decided to go with
exigent circumstances’ only one hour and thirty-two minutes into their three-hour
window to complete a blood draw, after attempting to call only one judge,” and
“[t]here was no exigency that justified this decision.”
¶12 The State, in contrast, asserts that “judicial unavailability” created an
exigent circumstance because “a further delay of an indeterminate length in
reaching a judge would ‘significantly undermin[e] the efficacy of the search.’”
(Footnote and citation omitted.) In particular, the State relies on State v. Hay,
2020 WI App 35, 392 Wis. 2d 845, 946 N.W.2d 190, and Dieter to support its
position.
¶13 In Hay, the circuit court granted David Hay’s motion to suppress the
results of a warrantless blood draw performed after he was arrested for
fifth-offense OWI, and the state appealed. Hay, 392 Wis. 2d 845, ¶1. The central
facts in that case were that the officers were aware that Hay was subject to a .02
BAC limit; a PBT showed that Hay had a .032 BAC; rather than begin the warrant

No. 2024AP373-CR
7
process, one officer “searched Hay’s vehicle for OWI-related evidence, while the
backup officer ‘monitor[ed]’ Hay”; “the officers ‘wait[ed]’ for a third officer to
arrive to ‘sit’ with [Hay’s] vehicle until the tow truck arrived”; one officer
“transported Hay ‘ten, 15 minutes’ to Elmbrook Memorial Hospital for a blood
draw while the backup officer followed in his police vehicle”; the officer read Hay
the Informing the Accused form while at the hospital; and Hay refused to consent
to a voluntary blood draw. Id., ¶¶3-4 (first and second alterations in original).
¶14 We concluded that the circuit court did not err by granting Hay’s
motion to suppress the evidence. Id., ¶27. We explained,
[T]he record indicates that upon arresting Hay for a
violation of OWI, fifth offense, [the officer] knew he was
subject to a .02 BAC limit, and thus [the officer] was
undoubtedly aware at that time that he would be
transporting Hay to the hospital for a blood draw. And as
the circuit court found, due to Hay’s apparently low BAC
level at the time of arrest, [the officer] knew he was “in a
rush” to avoid complete dissipation of the alcohol in Hay’s
system. The record also suggests [the officer] had time and
opportunity shortly after the arrest to begin the search
warrant process at that time without delaying the
blood-draw effort or compromising other important law
enforcement responsibilities. In light of these particular
facts and circumstances, it was unreasonable for [the
officer] not to use this time and opportunity to begin the
warrant application process.
Id., ¶22. Said differently, “a reasonable officer would have known right at the
time of Hay’s arrest that time was of the essence and there likely would not be
sufficient time to procure a warrant after a refusal at the hospital.” Id., ¶26.
¶15 Although the state argued in favor of a rule “that an officer never
needs to consider beginning the warrant application process unless and until a
suspect refuses a blood draw,” we rejected the state’s proposal. Id., ¶14. We
explained that such a rule “will in some cases create exigent circumstances that
would not have existed had the process been started earlier,” and “the government

No. 2024AP373-CR
8
cannot justify a search on the basis of exigent circumstances that are of the law
enforcement officers’ own making.” Id. (citation omitted). Therefore, we held
that “the Fourth Amendment ‘mandated’ that [the officer] attempt to procure a
warrant when he had the reasonable opportunity to do so.” Id., ¶27 (citation
omitted).
¶16 In Dieter, an officer arrived on the scene of a fatal vehicle collision,
and after investigating the scene, he discovered that the accident had occurred five
hours earlier. Dieter, 393 Wis. 2d 796, ¶¶2-3. The officer waited until Yancy
Dieter, the driver of the vehicle, arrived at the hospital to read him the Informing
the Accused form, and Dieter declined to consent. Id., ¶5. The officer knew,
based on his experience, that the warrant application process took approximately
40 minutes. Id., ¶6. He was also informed that Dieter would be transported by
ambulance to another hospital, and the officer believed the ambulance was
approximately ten minutes away. Id., ¶6. The officer therefore determined that
these facts constituted exigent circumstances and directed the medical staff to
draw a sample of Dieter’s blood without a warrant. Id.
¶17 We determined that a reasonable officer in that situation “would
have believed that applying for a warrant would significantly delay the blood draw
and that he did not have time to obtain a warrant without ‘significantly
undermining the efficacy of the search.’” Id., ¶20 (quoting McNeely, 569 U.S. at
153). We reached that conclusion based on the officer’s knowledge of the
expected duration of the warrant application process; the knowledge that the
ambulance was on its way to transport Dieter to another hospital and would arrive
shortly; and the fact that this was an accident scene and the crash had occurred
hours earlier, which was not the result of police delay and “distinguishes this case
from a ‘run-of-the-mill OWI investigation’ where a warrant can often be obtained

No. 2024AP373-CR
9
shortly after an incident of suspected intoxicated driving.” Id., ¶¶21-23 (citation
omitted). Thus, the Dieter court distinguished its case from Hay, explaining that
the officer had “reasonably prioritized tasks” in the “aftermath of the crash.”
Compare Dieter, 393 Wis. 2d 796, ¶18, with Hay, 392 Wis. 2d 845, ¶¶3-4.
¶18 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. As we outlined above, it is undisputed
that Sasse read Taff the Informing the Accused form at 2:00 a.m., and Taff refused
to consent to the blood draw. Despite his refusal, the troopers delayed starting the
warrant process until they arrived at the hospital, approximately 15 minutes later.8
As a result, the warrant process did not begin until roughly one hour into this
“run-of-the-mill OWI investigation.” See Dieter, 393 Wis. 2d 796, ¶23 (quoting
Hay, 392 Wis. 2d 845, ¶8).
8 Taff observes that the State’s response brief appears to contest this point by stating
facts that are not supported by the record. For example, the State asserts, “While the arresting
Trooper drove to the hospital, his supervisor called dispatch to obtain a judge’s contact
information,” but Taff argues that the record citation that the State provides does not support that
claim. Instead, notes Taff, the record is clear that Sasse testified that “[t]he phone calls were
made once we got to the hospital itself for the on-call judge’s information.”
We agree that the record is clear that the troopers did not contact dispatch until they
reached the hospital. Further, the circuit court’s decision and order contains the court’s factual
finding that “[o]nce at the hospital, the on-call judge’s phone number was obtained from the
county dispatcher,” and that finding is not clearly erroneous.

No. 2024AP373-CR
10
¶19 Once at the hospital, the troopers attempted to contact the judge over
a period of about 30 minutes.9 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).10 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
9 The circuit court found in its decision and order that the troopers made “nine attempts”
to contact the on-call judge “over the course of an hour.” This finding, however, is not supported
by the record on appeal. Sasse testified that he and Rettie attempted to contact the on-call judge
“[f]or approximately one hour … or over an hour” and that the troopers “made [their]
determination [about exigent circumstances] after an hour of … phone calls to both [of the
judge’s] numbers not being returned.” Nevertheless, the record is clear that the officers attempted
to reach the on-call judge for only about 30 minutes.
The signed and dated Informing the Accused form in the record includes the time that
Taff refused consent, which is listed as 2:00 a.m. The officers then drove to the hospital, which
Sasse testified was 15 minutes away, meaning that they arrived at the hospital at approximately
2:15 a.m. As noted above, see supra note 8, the troopers did not call dispatch for the on-call
judge’s number until they reached the hospital, so the troopers also began calling the judge at
around 2:15 a.m. According to Sasse’s testimony, his report stated that Taff’s blood was drawn
at 2:45 a.m. In other words, the documents in the record, created essentially contemporaneously
with the incident, belie Sasse’s estimation that they called the on-call judge for an hour. Thus, we
agree with Taff that the circuit court’s finding that the troopers spent an hour attempting to obtain
a warrant was clearly erroneous.
10 In its response brief, the State makes a point to note, several times, the time that Taff
finished his last drink and argues that “[t]he non-speculative facts known to the officers were that
Mr. Taff claimed he stopped drinking alcohol two and a half hours prior to the Troopers[’]
decision to order a warrantless blood draw.” To the extent that the State is suggesting that the
time of Taff’s last drink is a significant factor in the exigent circumstances analysis, we disagree.
Pursuant to WIS. STAT. § 885.235(1g), the “sample” must be “taken within 3 hours after the event
to be proved,” meaning that evidence from the blood draw is admissible without expert testimony
if the blood draw occurs within three hours of driving. Thus, the time that Taff last drank alcohol
does not affect the admissibility of the test results.

No. 2024AP373-CR
11
unavailable; calling another judge in the jurisdiction; or pursuing any alternative
means to obtain judicial authorization.11
¶20 Under these circumstances, the State has failed to demonstrate the
requisite level of urgency necessary to excuse the warrant requirement.
See Howes, 373 Wis. 2d 468, ¶¶23, 40. The temporary unavailability of a single
judge for approximately 30 minutes does not create exigent circumstances where
officers delayed initiating the warrant process, failed to pursue reasonable
alternatives, and still had nearly half of the statutory evidentiary window
remaining. Nor were there any unique or emergent circumstances—such as an
11 Taff asserts in his reply brief that the “[S]tate’s brief continues to invent facts” by,
among other things, claiming that the troopers “discuss[ed] the situation with a supervisor.” We
agree that the record citation that the State presents for that assertion does not appear to support
its claim that the troopers contacted a supervisor, and we see no mention of a supervisor in
Sasse’s testimony or evidence that he called anyone else aside from the on-call judge.
The question remains, however, whether Rettie may have been Sasse’s supervisor, and on
that question, the record is unclear. During his testimony at the motion hearing, Sasse called
Rettie his “partner,” but the traffic criminal complaint referred to Rettie as “the Field Training
Officer with [Sasse].” If Rettie was training Sasse, we question why he was not aware, as the
circuit court explained at the hearing, “that the Outagamie County judges do have a backup
calling priority system” for when law enforcement is unable to reach the on-call judge. The
apparent fact that neither trooper was aware of that procedure appears to be a training failure, but
that should not excuse a constitutional violation. Ultimately, whether Rettie was a supervisor has
little bearing on our analysis, so we will not address the issue further.
Additionally, in response to Taff’s argument that the troopers could have done more to
secure a warrant, the State argues that “those alternatives are speculative at best” and that “[n]o
evidence was presented at either the motion hearing or post-conviction showing that the Judge
was at his home, or that a judge who was not the ‘on call judge’ would have answered their phone
prior to the dissipation of the alcohol from Mr. Taff’s blood.” We agree with Taff that it was not
his burden to prove that these additional attempts would have been successful. Rather, the State
bore the heavy burden to demonstrate, by clear and convincing evidence, that the officers could
not have reasonably obtained a warrant before drawing Taff’s blood. See State v. Hay, 2020 WI
App 35, ¶¶11-12, 392 Wis. 2d 845, 946 N.W.2d 190. Our discussion of these alternatives is
merely meant to demonstrate what factors may impact the question of whether a warrant could
have been reasonably obtained.

No. 2024AP373-CR
12
accident, an injury, the relocation of the suspect, or other delay not of law
enforcement’s making—that would support a finding of exigent circumstances.
¶21 The only exigency was the natural dissipation of alcohol in Taff’s
blood due to the passage of time. However, “the natural dissipation of alcohol in
the bloodstream does not constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant,” see McNeely, 569 U.S. at 165, and, as
we have made clear, the completion of the blood draw was still possible well
within the WIS. STAT. § 885.235(1g) three-hour window. Further, alcohol
dissipates “gradually and relatively predictably” from the bloodstream,
see McNeely, 569 U.S. at 155, “at a rate of 0.01 percent to 0.025 percent per
hour,” Howes, 373 Wis. 2d 468, ¶45 (citation omitted). Because Taff was not
subject to a .02 BAC limit, there was no realistic risk that alcohol would have
entirely dissipated within the remaining time if he had actually been above the
legal limit of .08 at the time he drove.
¶22 We therefore consider this case to be different than both Hay and
Dieter. In Hay, although we affirmed the circuit court’s decision granting Hay’s
motion to suppress, we noted that exigent circumstances might have existed had
the officer not unreasonably delayed seeking a warrant for a prolonged period of
time and had the warrant process then been stalled by judicial unavailability. Hay,
392 Wis. 2d 845, ¶¶1, 24. That discussion, however, was particularly dependent
on Hay’s low PBT reading of .032 and the officer’s knowledge that he was subject
to a .02 BAC limit, which are not the facts of this case. See id., ¶¶24, 26. Dieter
is likewise inapposite because that case involved a crash with injuries, arrival at
the hospital more than three hours after the defendant was last seen driving, and an
imminent medical transfer. Dieter, 393 Wis. 2d 796, ¶¶4-6. None of those
circumstances are present here.

No. 2024AP373-CR
13
¶23 Finally, we reject any suggestion that the unavailability of an on-call
judge automatically creates exigent circumstances. Neither Hay nor McNeely
supports such a bright-line rule. To the contrary, the McNeely Court made clear
that bright-line rules have no place in a Fourth Amendment analysis.
See McNeely, 569 U.S. at 156, 158. While the unavailability of an on-call judge
could, under different facts, contribute to a finding of exigent circumstances, this
is not such a case.
¶24 Given these facts, an objectively reasonable officer in Sasse’s
position would not have believed that the delay necessary to obtain a warrant
would have “significantly undermin[ed] the efficacy of the search,” see id. at 152,
and, therefore, exigent circumstances did not justify Taff’s warrantless blood
draw.
By the Court.—Judgment reversed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.