Tuesday, August 02, 2011

OWI Appeal - Wisconsin Says Refusals Can Challenge Stop Too

Thanks to Wisconsin NCDD members Michele Tjader and Karyn Missimer for catching this one. In Re Anagnos, Slip Copy, 2011 WL 3111960 (Wis.App.), deals with whether a driver in a refusal hearing can challenge the lack of reasonable suspicion for stopping the car, and if so, whether there was reasonable suspicion therein.

In Wisconsin, the issues to be decided at a refusal hearing limited to considering: (1) “Whether the officer had probable cause to believe the [defendant] was driving or operating a motor vehicle while under the influence of alcohol ... and whether the [defendant] was lawfully placed under arrest for [OWI];” (2) whether the officer read the proper information to the defendant; and (3) whether the defendant refused to take the test. WIS. STAT. § 343.305(9)(a)5. The State therefore argued that it was improper at the refusal hearing for the circuit court to consider whether the deputy had reasonable suspicion to stop Anagnos.

However, the Wisconsin Court of Appeals held that the lawfulness of the arrest included the lawfulness of the stop itself:

"The refusal hearing statute states that a circuit court may consider “whether the [defendant] was lawfully placed under arrest.” WIS. STAT. § 343.305(9)(a)5.a. It was therefore proper for the circuit court to inquire into whether the deputy had reasonable suspicion to stop Anagnos. Without reasonable suspicion or probable cause to pull over Anagnos, the deputy had no authority to require Anagnos to submit to a chemical test. See Longcore, 226 Wis.2d at 6 (evidence obtained as the result of an illegal traffic stop is inadmissible)."

Having found that the lawfulness of the stop of the vehicle was necessarily included by implication in the 'lawfulness of the arrest', the court then found the stop itself was illegal here. The facts were summarized as follows:

"In the early morning of January 31, 2010, Walworth County Deputy Sheriff Garth Frami was stopped at a red light in the right-hand turn lane of a highway intersection when he noticed Anagnos's vehicle pull out of a Taco Bell and accelerate at “rapid speed” before stopping in the left-hand turn lane of the same intersection. The Taco Bell that Anagnos pulled out of was behind the deputy and to his left. The deputy thought that Anagnos had made an illegal left-hand turn over the median when he pulled out of the Taco Bell. After Anagnos pulled up to the left-hand turn lane of the intersection, the deputy observed Anagnos make a left turn “at a high rate of speed” and without using a turn signal. Based on this observation, the deputy pulled over Anagnos. Anagnos was subsequently arrested for OWI."
The Court of Appeals affirmed the finding of no reasonable suspicion to stop the vehicle. The median itself was only one to two inches high, and had no signs prohibiting a turn. The lack of a turn signal was not illegal, because Wisconsin only requires a signal “[i]n the event that any other traffic may be affected.” Lastly, there was insufficient evidence of the speed ogf the vehicle to establish speeding.

The appeals court affirmed the trial court, concluding that Anagnos's refusal to take the chemical test was lawful as the deputy did not have reasonable suspicion to stop Anagnos.

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