State v. Jeffrey L. Moeser, 2019AP2184-CR, petition for review of an unpublished decision granted 11/18/21 ; case activity (including briefs)
Issue presented (from the petition):
Whether the ‘Oath’ requirement under the Fourth Amendment of the US Constitution and Article 1, Section 11 of the Wisconsin Constitution require a police officer to swear an oath to the truthfulness of an affidavit used to obtain a search warrant to conduct an evidentiary blood draw in a criminal OWI matter?
As we noted in our post on the court of appeals’ decision, Moeser was arrested for OWI and the officer got a warrant to draw his blood. But, though he signed the affidavit and had it notarized before presenting it to the court, the officer never orally swore or affirmed its truth to anyone. Moeser argues this violated the “oath or affirmation” clauses in both the Fourth Amendment and the Wisconsin Constitution as well as the requirements of Wis. Stat. § 968.12(2).
The court of appeals said that the act of completing, signing and notarizing the affidavit was good enough. It cited Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995); Moeser argues Kellner doesn’t govern because it concerns a different body of law (the statutory procedures for suing a state employee). We’ll see what SCOW thinks.