VOIGT, Justice.
[¶1] On November 6, 2012, this Court issued a Notice of Agreement to Answer Certified Questions in these two unrelated cases. The questions we agreed to answer were stated as follows:
[¶ 2] We later concluded that, because the wording of the first question is such that it may be construed to be based upon a faulty legal premise, as will be discussed below, and because of clarification of search and seizure law by the United States Supreme Court in the interim, the questions should be re-phrased to better provide guidance to the State's courts. Consequently, we issued an Order Requiring Briefing on Revised
[¶ 3] We reply in the affirmative to both questions.
[¶ 4] In separate incidents in Teton County, Wyoming, the two above-named appellants were arrested for driving while under the influence of alcohol (DWUI). Each appellant's blood-alcohol content was determined via the procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) (LexisNexis 2013). That is, the circuit court judge issued a remotely communicated search warrant after speaking on the telephone with the arresting officer, who was under oath, and directing the officer to affix the judge's signature to the search warrant. The telephone calls were made by the officers to the judge via a recorded telephone line operated by the Teton County Sheriff's Office Dispatch.
[¶ 5] For the limited purpose of answering these questions within the confines of these two cases, we will presume that the officer in each case had probable cause to make the DWUI arrest, that the officer was placed under oath by the judge, that the officer in each case recited to the judge sufficient probable cause for the issuance of a search warrant, and that the recorded conversation can be or has been transcribed. In other words, the limited questions presented are whether the requirements of Wyo. Stat. Ann. § 31-6-102(d) are the equivalent of an affidavit under the state constitution and whether the dictates of W.R.Cr.P. 41(c) must be met.
[¶ 6] Wyoming's state constitutional protections against unreasonable search and seizure are found in Wyo. Const. art. 1, § 4:
(Emphasis added.)
[¶ 7] Wyoming's Rules of Criminal Procedure provide the procedural requirements for the issuance of a search warrant at W.R.Cr.P. 41(c):
(Emphasis added.)
[¶ 8] The statutory procedure for remotely communicated search warrants in DWUI cases is found at Wyo. Stat. Ann. § 31-6-102(d):
[¶ 9] Certified questions are questions of law that are reviewed de novo pursuant to W.R.A.P. 11. Preston v. Marathon Oil Co., 2012 WY 66, ¶ 4, 277 P.3d 81, 83 (Wyo.2012); Sublette Cnty. Sch. Dist. No. Nine v. McBride, 2008 WY 152, ¶ 14, 198 P.3d 1079, 1083 (Wyo.2008).
[¶ 10] We begin this discussion by reference to a very recent opinion of the United States Supreme Court wherein it was held that "the natural metabolization of alcohol in the bloodstream [does not present] a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." Missouri v. McNeely, ___ U.S. ___, ___, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013). In other words, the Fourth Amendment to the United States Constitution demands that, absent an exigency or other exception to the general rule, a search warrant is required to draw blood for a blood-alcohol test in a DWUI case, with reasonableness of the search to be determined under all the attending circumstances. The parties suggest that McNeely is irrelevant to the issues in the instant case, but we asked for re-briefing because the circuit court relied specifically upon Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Schmerber's material point, as will be discussed below, was overruled by McNeely.
[¶ 11] Perhaps it will be helpful at this point to summarize what we have just said about the status of the law in regard to the necessity for law enforcement officers to obtain a search warrant before determining an arrestee's blood-alcohol content via the withdrawal of a blood sample. The law of Schmerber — that the metabolization of alcohol in the blood is a per se exigency that creates an exception to the requirement to obtain a search warrant — has been overruled by the law of McNeely — which holds that the metabolization of alcohol in the blood is not a per se exigency that creates an exception to the requirement to obtain a search warrant. McNeely, ___ U.S. at ___, 133 S.Ct. at 1563.
[¶ 12] Inasmuch as states are not permitted to impose less stringent standards than the U.S. Constitution when protecting individual rights, the same search warrant requirements, or requirements equivalent thereto, must apply under article 1, section 4 of the Wyoming Constitution. Saldana v. State, 846 P.2d 604, 632 (Wyo.1993). Furthermore, Wyo. Stat. Ann. § 31-6-102(d) cannot stand alone as some sort of "statutory warrant" that need not meet constitutional dictates.
[¶ 13] It is in this legal context that we note the nature of the questions before us. We are not determining whether, as a matter of fact, either the arrest or blood-alcohol content test was supported by probable cause or was reasonable. We are only determining whether the procedures dictated by statute are sufficient under the state constitution and the court rule.
[¶ 14] This Court has repeatedly held that use of the word "affidavit" in article 1, section 4 of the Wyoming Constitution, rather than the words "oath or affirmation" that appear in the Fourth Amendment to the United States Constitution, means that the former provides greater protection than the latter. See e.g., Crackenberger v. State, 2006 WY 162, ¶ 7, 149 P.3d 465, 470 (Wyo.2006); O'Boyle v. State, 2005 WY 83, ¶ 24, 117 P.3d 401, 408 (Wyo.2005); Hall v. State, 911 P.2d 1364, 1368 (Wyo.1996). Beyond that, we have stated that an affidavit must be in written form. State v. Peterson, 27 Wyo. 185, 194 P. 342, 345 (1920). That definition is consonant with the generally accepted definition. See Black's Law Dictionary 66 (9th ed.2009). The specific question before us, therefore, is whether a recorded telephone conversation, which conversation has been or may be transcribed into written form, satisfies the Wyoming Constitution's affidavit requirement. In that regard, we will point out that we have identified the greater protection provided by the affidavit requirement as being the creation of a permanent written record. Cordova v. State, 2001 WY 96, ¶ 8, 33 P.3d 142, 147 (Wyo.2001); Vasquez v. State, 990 P.2d 476, 483 (Wyo. 1999). The overarching question should be whether the statutory remotely communicated search warrant procedures provide the same protection.
[¶ 15] It is instructive to consider how other state courts have handled similar issues and to realize that, because of differences in constitutional language, statutory language, and court rule language, they are "all over the place." In Idaho, for instance, where the search warrant provision of that state's constitution requires that "no warrant shall issue without probable cause shown by affidavit," the Supreme Court of Idaho has held that "the word `affidavit' is broad enough to include the recording of sworn testimony." State v. Badger, 96 Idaho 168, 525 P.2d 363, 365 (1974). Going on, the court stated:
Id.
[¶ 16] In an opinion published thirty years after Badger, the Supreme Court of Idaho re-iterated its holding in Badger, and expanded that opinion to include the conclusion that the words "[a] warrant shall issue only on an affidavit or affidavits sworn to before a district judge or magistrate" found in a rule of criminal procedure did not require the affiant to appear physically before the judge. State v. Bicknell, 140 Idaho 201, 91 P.3d 1105, 1107 (2004). And just prior to the publication of Bicknell, the same court held that a magistrate could authorize a law enforcement officer to affix the magistrate's signature to the warrant. State v. Fees, 140 Idaho 81, 90 P.3d 306, 310 (2004). Clearly, the Supreme Court of Idaho takes an expansive view of all of that state's search warrant affidavit requirements.
[¶ 17] In State v. Boyse, ___ N.M. ___, 303 P.3d 830, 831 (2013), the New Mexico Supreme Court was faced with the question of whether the request for and approval of a search warrant by telephone satisfied New Mexico's state constitution's requirement that a search warrant be based upon "a written showing of probable cause." The court held that "showing" means "a presentation or statement of facts that can be made through audible or other sensory means as well as through visual means." Id. In reaching the conclusion that telephonic search warrants are not unconstitutional in New Mexico, the court emphasized the fact that other states' precedent was difficult to apply because of different constitutional, statutory, and court rule contexts. Id. at 836-37.
[¶ 18] It would be unrealistic to find that all states view the issue of remotely communicated search warrants — telephone warrants — from the same perspective. State v. Valencia, 93 N.J. 126, 459 A.2d 1149 (1983), is illustrative of that observation. We will quote at some length from Valencia because it so thoroughly enunciates the point of view contrary to that of the Supreme Court of Idaho:
Id. at 1153-54 (citations omitted).
[¶ 19] In White v. State, 842 So.2d 565, 568-69 (Miss.2003), the Supreme Court of Mississippi took a position quite similar to that taken by the New Jersey Supreme Court in Valencia:
[¶ 20] Two other cases frequently cited in the telephonic search warrant debate — State v. Myers, 117 Wn.2d 332, 815 P.2d 761 (1991), and People v. Taylor, 198 Ill.App.3d 667, 144 Ill.Dec. 699, 555 N.E.2d 1218 (1990) — are not, in this Court's opinion, very helpful to the resolution of the present issue. In Myers, the equipment used to record the warrant application failed, leaving the officer and the judge to attempt during the suppression hearing to reconstruct their telephonic conversation. Myers, 815 P.2d at 764. The Supreme Court of Washington held that the reconstructed affidavit was insufficient because it prevented judicial review of the sufficiency of probable cause. Id. at 768. That distortion of the focal question is not present in our case. Similarly, in Taylor, the court held that, not only did no state statute authorize telephonic search warrants, the warrant at issue was technically deficient because of the absence of date, time, and judicial signature. 144 Ill.Dec. 699, 555 N.E.2d at 1221. These complicating factors also do not impair the direct question presented in our case.
[¶ 21] We begin our own discussion of this issue with two general observations. First, statutes are presumed to be constitutional,
[¶ 22] Interestingly enough, some members of the defense bar, recognizing that the availability of a remote search warrant procedure in DWUI situations is actually an additional protection for the defendant, have begun to base motions to suppress upon the failure of law enforcement to obtain a remotely communicated warrant where the procedure is available.
John Henry Hingson, III, Telephonic and Electronic Search Warrants: A Fine Tonic for an Ailing Fourth Amendment-Part One, Champion 38 (September/October 2005). See also John Henry Hingson, III, Telephonic and Electronic Search Warrants: A Fine Tonic for an Ailing Fourth Amendment-Part Two, Champion 34 (November 2005) ("[T]he failure of the police to employ that technology can be used to cement the strength of the warrant requirement of our beloved Fourth Amendment. Unless bullets are flying, or blood is flowing, the warrant requirement should reign supreme."), and H. Morley Swingle & Lane P. Thomasson, Beam Me Up: Upgrading Search Warrants With Technology, 69 J. Mo. B. 16 (2013).
[¶ 23] Although this does not answer the affidavit question, we will note that the United States Supreme Court has spoken to the need to recognize technological advances in the search warrant arena:
McNeely, ___ U.S. at ___, 133 S.Ct. at 1561-62.
[¶ 24] There are too many cases to cite for the accepted proposition that the constitutional affidavit requirement provides two protections for a defendant. First, it guarantees that an impartial judicial officer will determine whether probable cause exists based upon a review of specific sworn testimony. Second, it ensures that such sworn testimony will be preserved for potential later review by an appellate court. We can only conclude that the procedures for a remotely communicated search warrant set forth in Wyo. Stat. Ann. § 31-6-102(d) provide equal protections. In addition, the availability of such a procedure increases the likelihood that a search warrant will be obtained in DWUI arrest situations, and it greatly decreases the amount of time necessary to obtain the warrant.
[¶ 25] Historically, an affidavit was a "written" instrument. We do not believe that the statute or this opinion changes that fact. What has changed over time, because of technological advances, is the meaning of the word "written." Recorded sworn testimony, which if preserved, and from which a transcript may be produced, is as much a "writing" in today's world as was a quill-penned line on a piece of parchment two centuries ago. To conclude otherwise would ignore today's technological realities, and would place form over substance. We decline to view the law in so restrictive a fashion.
[¶ 26] We answer the first certified question in the affirmative. That is, the procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) do comply with the affidavit requirements of Wyo. Const. art. 1, § 4.
[¶ 27] A remotely communicated search warrant issued pursuant to Wyo. Stat. Ann. § 31-6-102(d) is distinguishable from other search warrants in that it is limited to a particular type of evidence gathering in a particular type of crime. By its own language, it is "valid only for purposes specified in this subsection." At the same time, there is nothing about the context in which it is issued that requires it to be treated differently than any other search warrant in the particulars governed by W.R.Cr.P. 41(c). A close reading of W.R.Cr.P. 41(c) reveals that it contains no provision that cannot be met in the issuance of a remotely communicated search warrant under the statute. Paraphrasing the rule, we note that, in addition to the affidavit requirement, which has been discussed above, W.R.Cr.P. 41(c) provides that (1) the issuing officer
[¶ 28] Wyo. Stat. Ann. § 31-6-102(d) and W.R.Cr.P. 41(c) complement, rather than contradict, one another. There is no reason that an officer seeking a remotely communicated search warrant under the statute cannot also comply with the rule. The same is true of the issuing judicial officer. In fact, there are procedural protections in W.R.Cr.P. 41(c) that would seem to have particular application in the context of a telephonically obtained search warrant. For instance, inasmuch as the record is being made electronically, rather than on paper, it is likely that no transcription thereof will be available at the time the warrant is served, meaning that the subject of the warrant would not know the reasons for the judicial officer's finding, or the scope of the warrant, unless the probable cause finding is contained within the warrant.
[¶ 30] The procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) do not violate Wyo. Const. art. 1, § 4. Search warrants issued pursuant to Wyo. Stat. Ann. § 31-6-102(d) must meet the requirements of W.R.Cr.P. 41(c).