CHEYENNE — The Wyoming Supreme Court will decide whether a 2011 state law allowing the approval of search warrants for alcohol testing in drunk driving cases over the phone is constitutional.

Two drivers who submitted to testing after Teton County Circuit Judge James Radda authorized officers over the phone are contending the tests should be disallowed in their cases because the search warrants don’t meet constitutional requirements for written affidavits. The two motorists pleaded guilty to driving under the influence but retained the right to appeal the case.

The court took the case under advisement and will issue a ruling later. This is the law’s first challenge before the state Supreme Court.

According to court records, Radda said the officers who stopped Dena T. Blomquist and Terry Smith called him in separate instances on recorded lines. Radda said he placed the officers under oath before being told why they stopped the motorists.

Radda wrote that he gave the officers permission to perform tests, which resulted in a blood draw from Smith and a breath test from Blomquist.

Smith’s attorney, Christopher Leigh of Jackson, who argued for both defendants, told the state Supreme Court justices on Tuesday that a recorded phone call wasn’t equivalent to a written affidavit, which he said was required by the Wyoming Constitution.

Article 1, section 4 of the constitution states that “no warrant shall issue but upon probable cause, supported by affidavit.”

Leigh said the courts have interpreted that section to mean a written affidavit.

“It has to be in writing. That’s our contention,” Leigh said.

Leigh said allowing officers to obtain search warrants over the phone was a “scary” expansion of the state’s search powers.

Teton County Deputy Prosecutor Terry Rogers, representing the state, said the requirement for a written affidavit wasn’t necessary in the age of new technology. He noted that the section of the constitution requiring affidavits to support search warrants was adopted in 1890.

“Our position is that a written affidavit is an archaic thing,” Rogers said.

The recorded phone call includes the entire conversation between a police officer and a judge, he said.

State Rep. Keith Gingery of Jackson was a sponsor of the 2011 law. He said it was needed because motorists with multiple drunk driving arrests learned to refuse any test for blood alcohol levels because the lack of evidence would hamper the prosecutor’s case.

Under the state’s old implied consent law, the only penalty for refusing a test was suspension of a driver’s license.

Rogers said Tuesday it is difficult to get a conviction in a DUI case without an alcohol test result.

Under the new law, a driver who refuses to obey the search warrant can be charged with interference with a police officer, a misdemeanor, Leigh pointed out.

In answer to a question from Chief Justice Marilyn Kite, Leigh said that approving an electronic affidavit rather than a written one is “a dangerous road to go down.”

“It’s a road we’re already on as far as society goes,” Kite said.

The justices also questioned whether a ruling in favor of the state would apply to other search warrants as well.

Rogers said the court could word the ruling narrowly if necessary.

Contact capital bureau reporter Joan Barron at 307-632-1244 or

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