Monday, May 23, 2011

OWI Appeal - Implied Consent Warnings Don't Violate Separation of Powers Clause

Today's case, Columbia County v. Devos, Slip Copy, 2011 WL 1885961 (Wis.App.) is being included in DAD due to the defense attorney's creativeness and 'moxie'. Here, the attorney argued that the addition of extra language in the implied consent warning was not authorized by the legislature, and thus its inclusion violated the separation of powers clause.

The contested 'additional' language was as follows:

“In addition, under 2003 Wisconsin Act 97, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood.”

The appellate judge found that the extra language was in fact authorized by another section of the Code besides the section with the original language, and so there was no error.

However, DAD enjoyed the creativity of the argument, and feels that under the correct factual conditions, it could be a valid theory of defense.

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