Varghese Summersett Board-Certified Criminal Law Specialist Concludes Tony Romo’s Blood Test Result May Be Legally Irrelevant Under Wisconsin Law
Varghese Summersett’s analysis of the filed search warrant affidavit and police video finds the case turns on a
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Fort Worth, TX / Storyteller / Aug 03, 2026 /
EXECUTIVE SUMMARY
Varghese Summersett, a Texas criminal defense law firm led by board-certified criminal law specialist Benson Varghese, has completed a public-records analysis of the OWI case against former NFL quarterback Tony Romo and concluded that the blood alcohol concentration result the public is waiting on is likely irrelevant to the outcome. According to Varghese Summersett, the dispositive issue is that Romo was transported from the shoulder of Interstate 43 to a county booking facility before a single field sobriety test was administered, conduct the firm says exceeds the authority Wisconsin’s stop-and-detain statute grants an officer operating on reasonable suspicion alone.
Varghese Summersett, a Texas criminal defense firm, today released a legal analysis of the operating-while-intoxicated case pending against Antonio R. Romo in Milwaukee County, Wisconsin, concluding that the pending blood test result is unlikely to determine the outcome of the case. The analysis was prepared by Benson Varghese, managing partner of Varghese Summersett and a Texas lawyer board certified in criminal law by the Texas Board of Legal Specialization. It is based on the OWI search warrant and supporting affidavit filed in Milwaukee County Circuit Court case 2026GF003538 and on publicly available police video.
A vial of Romo’s blood, drawn at 8:55 p.m. on July 23, 2026, at West Allis Memorial Hospital, is currently at the Wisconsin State Laboratory of Hygiene. National coverage has focused almost entirely on the number that vial will produce.
“That number is very likely irrelevant, not because it will be low, but because of when the State got it, and what the deputy knew at the moment she decided Tony Romo was no longer free to leave,” said Varghese. “This case was decided at 6:18 p.m. on July 23, on the shoulder of I-43 south of Canal Street, when a man who had not yet performed a single field sobriety test was placed in a car and driven to jail.”
Varghese is licensed in Texas and is not licensed in Wisconsin. The firm noted that the Fourth Amendment analysis at issue is federal, and that Wisconsin construes Article I, § 11 of its constitution consistently with the Fourth Amendment.
WHAT THE RECORD SHOWS
According to the filed affidavit and video reviewed by Varghese Summersett, Deputy Ramanpreet Kaur of the Milwaukee County Sheriff’s Office was working southbound I-43 through the Marquette Interchange in heavy rush-hour traffic when she observed a black Jeep in the marked distress lane, the shoulder, moving at a high rate of speed, passing vehicles, cutting across a marked “gore,” and pulling in front of a car that had already committed to its lane. She initiated a stop and used her PA to direct the driver onto the right shoulder just south of Canal Street, telling him she had stopped him for unsafe passing on the right.
Varghese Summersett’s analysis states that the described driving conduct supplied reasonable suspicion for the stop and that the lawfulness of the stop itself is not in dispute.
The video, the firm said, shows a civil encounter. Romo lowered his window, spoke to the deputy respectfully, and produced a valid Texas driver’s license. Both he and the deputy acknowledged on video that freeway noise required them to nearly shout. Romo stated he was coming from a golf tournament and heading to see his parents. After returning to her squad car, the deputy came back and asked how many drinks he had consumed. He said he had not had anything to drink.
The deputy noted a strong odor of an alcoholic beverage on his breath and eyes she described as red, bloodshot, and glossy, and told him she wanted to conduct field sobriety tests. Romo said he was calling his lawyer; she told him he could not. Asked whether he was refusing to exit the vehicle, he said he was not. She instructed him to step out four separate times. When he exited, he asked whether he could set his phone on the back of the Jeep to record, and the deputy permitted it.
The deputy told Romo he was “detained” for field sobriety testing, and then that she wanted to take him to the station, “where it is flat and level.”
The firm identified the following sentence from the sworn affidavit as the single most important in the filing: “Romo was informed due to the location of the stop he was going to be conveyed to the Milwaukee County Jail’s sallyport for SFST’s.”
The field sobriety tests, in other words, were administered at the jail. Romo was placed in a squad car on an interstate highway and driven roughly two and a half miles to 949 N. 9th Street, a booking facility, and then asked to walk a line.
THE FIRM’S CENTRAL LEGAL CLAIM: THE MOMENT OF ARREST
Varghese Summersett’s analysis centers on the line the U.S. Supreme Court drew in Terry v. Ohio (1968) between a brief investigative detention, which requires only reasonable suspicion, and an arrest, which requires probable cause. Evidence gathered after an unlawful arrest is subject to suppression.
“Reasonable suspicion is enough to make you wait by the side of the road,” Varghese said. “It is not enough to take you anywhere. That distinction is the entire ballgame here.”
Wisconsin codified the Terry rule at Wis. Stat. § 968.24, and, the firm noted, the legislature wrote a location requirement into the statute’s text. The statute grants an officer with reasonable suspicion three powers, to stop a person, to demand name and address, and to demand an explanation of the person’s conduct, and then provides: “Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.”
“The Wisconsin Legislature did not merely say an officer may briefly detain you. It said where he may do it: right there, where he pulled you over,” Varghese said. “Whatever ‘vicinity’ covers, it does not stretch to a booking facility two and a half miles away. I am not reading anything into § 968.24. I am reading it out loud.”
The analysis traces the controlling Wisconsin authority. In State v. Quartana, 213 Wis. 2d 440 (Ct. App. 1997), the Court of Appeals set a two-part test: whether the person was moved within the vicinity of the stop, and whether the purpose in moving him was reasonable. In Quartana, driving a suspect about a mile back to the scene of his own accident cleared the bar, because returning to the accident scene advanced the investigation. In State v. Blatterman, 2015 WI 46, the Wisconsin Supreme Court held that a ten-mile transport was “too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion,” converting the stop into an arrest, because “a reasonable person in Blatterman’s position would have believed that he was in custody due to an arrest.”
Varghese Summersett cautioned against framing the issue as a mileage comparison. “The State will say Blatterman was ten miles and this was two and a half. Do not take that bait,” Varghese said. “Blatterman is a ceiling, not a safe harbor. The court has never announced a floor, and litigating mileage means fighting on the State’s ground, where every argument sounds like haggling.”
The firm’s position is that the issue resolves under the second Quartana prong, the reasonableness of the purpose, which is decided by the destination. Blatterman was driven to a hospital, an investigative destination that at least arguably advanced the on-scene investigation. Romo was driven to a jail.
“A jail is not an investigative destination,” Varghese said. “Nothing in § 968.24’s authorized purposes, name, address, an explanation of conduct, is served by conveying a man to a booking facility. There is no version of ‘temporary questioning without arrest’ that terminates at the Milwaukee County Jail sallyport. That transport was not completing a Terry stop. It was completing an arrest.”
The analysis adds that the same result follows under State v. Swanson, 164 Wis. 2d 437, 447 (1991), which applies an objective test: whether a reasonable person in the defendant’s position would have considered himself in custody given the degree of restraint. Varghese Summersett also points to Dunaway v. New York, Hayes v. Florida, and Kaupp v. Texas, in which the U.S. Supreme Court addressed station-house transport without applying any distance element.
The firm anticipates the State will rely on State v. Marten-Hoye, 2008 WI App 19, holding that handcuffing during a stop does not automatically create an arrest. “True, and irrelevant,” Varghese said. “That doctrine governs restraint at the scene during a brief stop. It does not authorize a ride downtown.”
The suppression question, the firm concludes, reduces to what Deputy Kaur knew at the instant the squad car door shut on the interstate: bad driving, an odor of alcohol, and red, glossy eyes. Not the walk-and-turn, the one-leg stand, the HGN, the preliminary breath test refusal, or the blood, all of which came afterward.
VARGHESE SUMMERSETT’S ANALYSIS OF THE FIELD SOBRIETY TESTS
The affidavit reports 6 of 6 clues on horizontal gaze nystagmus (HGN), 5 of 8 on the walk-and-turn, and 3 of 4 on the one-leg stand. Varghese Summersett’s analysis identifies significant problems with each.
HGN, an incomplete medical inquiry. The HGN test looks for involuntary jerking of the eyes and requires both a suitable candidate and correct administration. NHTSA instructs officers to ask about eye and general health conditions before administering it. Deputy Kaur asked about recent head injuries and concussions, which the firm credits as appropriate; Romo answered that he had experienced them over the years, though not recently. The firm found no indication she asked about eye injuries, disease, or surgery; vision abnormalities; contact lenses; neurological conditions or ongoing post-concussive symptoms; or medications and general health conditions affecting the eyes. “A retired NFL quarterback who has just volunteered a history of head injuries is exactly the subject for whom that inquiry is not optional,” Varghese said. The analysis further finds that the equal-tracking check is difficult to evaluate because of the movement of Romo’s head, that the deputy’s timing is off on a number of passes, and that the camera captures a better-than-average view of Romo’s eyes in which no nystagmus is visible. “Her report says 6 of 6 clues,” Varghese said. “That result would be difficult to defend in court.”
Walk-and-turn, documented confusion over the instructions. Certified peace officers complete a weeklong course on field sobriety testing and administer these tests routinely. The analysis notes that Deputy Kaur read the instructions from a card rather than reciting them, while Romo was hearing them for the first time. There are at least 14 separate things a subject must remember to perform the test as instructed. Romo repeatedly asked what he was supposed to do next, said out loud that there were “too many” instructions and that he did not understand, and a second officer began assisting with the explanation. The three-step demonstration was standard and correct, but overlapping explanations left Romo asking whether he was to take three steps or nine; the officers clarified that the answer was nine. Two of the eight scored clues are “cannot maintain balance during instructions” and “takes the wrong number of steps.” “When the record shows the subject affirmatively told the officers the instructions were unclear, those clues are measuring the instructions, not the driver,” Varghese said. The firm also observes that the balance clue is truthful but misleading on these facts: Romo was not stumbling, but came out of the starting position several times to stretch or to ask questions.
One-leg stand, scored against two spinal surgeries. Romo referenced a bad back on scene, referenced back exercises and physical therapy during the one-leg-stand discussion, and later stated that he has had two back surgeries. NHTSA expressly recognizes that back, leg, and inner-ear problems can impair performance on the walk-and-turn and the one-leg stand, and instructs officers to consider all relevant factors in administering and interpreting them. The one-leg stand has four clues, and three of them, sways while balancing, uses arms for balance, and puts foot down, are in the firm’s analysis the precise things a two-time spinal surgery patient does while standing on one leg on pavement, stone sober.
“These are not pass/fail exams. NHTSA is explicit about this, and it is the single most misunderstood fact in every OWI case in America,” Varghese said. “The officer’s job is to observe and document validated clues, not to render a verdict. ‘Performed poorly on SFSTs’ is a conclusion, not evidence. The clue counts are the evidence, and each one has to survive cross-examination on its own.”
CONDUCT ON BOTH SIDES
Varghese Summersett’s analysis notes that Romo did not at any point in the record ask whether the deputy knew who he was, and did not request special treatment. The firm also credits the deputies’ professionalism, noting they allowed Romo to stretch after the arrest and after the tests because of back pain from his surgeries.
“The deputies were balancing fairness, objectivity, and the protocols they were expected to follow,” Varghese said. “Criticizing a legal procedure is not the same as criticizing the officers who executed it, and defense lawyers who cannot tell the difference lose juries.”
WHAT THE FIRM EXPECTS
Varghese Summersett’s assessment is that the motion to suppress is the case. If the defense fixes the moment of arrest at the point the squad door closed on I-43 and forces the State to establish probable cause as of that instant rather than as of what it collected at the sallyport, every test, statement, refusal, and blood draw that followed is subject to suppression as fruit of the arrest absent attenuation, which the firm says is unavailable here given the continuous chain from the interstate to the hospital.
If the court agrees that transport to a jail exceeded § 968.24, the State would be left proving impairment beyond a reasonable doubt with driving conduct, an odor, and glossy eyes. “That is not a case,” Varghese said. “That is a hunch with a case number.”
If the motion fails, the firm’s analysis holds that the case remains highly triable: a 6-of-6 HGN administered without a completed medical inquiry, a walk-and-turn scored against a man who said on video that he did not understand the instructions, and a one-leg stand scored against two spinal surgeries. “That is a very winnable trial, at any BAC,” Varghese said.
“When the number drops, it will lead every broadcast in the country,” he added. “It will not decide this case.”
ABOUT VARGHESE SUMMERSETT
Varghese Summersett is a Texas law firm with offices in Fort Worth, Dallas, Houston, and Southlake, handling criminal defense, family law, and personal injury matters. The firm is led by managing partner Benson Varghese, who is board certified in criminal law by the Texas Board of Legal Specialization. More information is available at versustexas.com.
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MEDIA CONTACT
Melody McDonald
Varghese Summersett
300 Throckmorton Street, Suite 700, Fort Worth, Texas 76102
Phone: (817) 203-2220
Email: melody@versustexas.com
Website: versustexas.com
YouTube: https://www.youtube.com/channel/UCwwYfelc6h4G8Dj38fEz6iA
Editor’s note: Benson Varghese is licensed in Texas and is not licensed in Wisconsin. This analysis is offered as commentary on publicly filed court records, not as legal advice, and any Wisconsin matter should be evaluated by Wisconsin counsel. All factual assertions above are drawn from the OWI search warrant and supporting affidavit filed in Milwaukee County Circuit Court case 2026GF003538. An arrest is an accusation. Mr. Romo is presumed innocent, and no allegation in that affidavit has been proven. Varghese Summersett does not represent Mr. Romo and has no involvement in the case.
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