OWI Laws: Wisconsin Conviction For Operation Improper

Today's DAD comes to us thanks to the watchful eyes of Wisconsin Attorney Tracey Wood. The case itself was handled by NCDD member Lauren Stuckert of Regent Andrew Mishlove's office. In the case, the jury convicted the driver of OWI. The officer had observed a white van parked in the bar’s parking lot and a man, later identified as the defendant Herbst, seated in the driver’s seat slumped over the steering wheel, with the engine running. Over objection, the prosecutor was allowed to argue to the jury that even touching the steering wheel constituted 'operation'.

On appeal, the court found that the evidence was sufficient to convict, but that the argument denied the defendant a fair trial. Because prosecutor's often attempt to 'bend' the law's definitions into thier favor, asnd then on appeal argue that the errors were harmless, or cured by a written jury instruction, the opinion is incorporated verbatim: 

"We acknowledge that, in general, counsel has wide latitude in closing argument and that it is within the trial court’s sound discretion to control the content of closing arguments. See State v. Lenarchick, 74 Wis. 2d 425, 457, 247 N.W.2d 80 (1976); State v. Cockrell, 2007 WI App 217, ¶41, 306 Wis. 2d 52, 741 N.W.2d 267. However, “[c]ounsel is not permitted to make statements of the law which are of dubious correctness.” State v. Bougneit, 97 Wis. 2d 687, 699-700, 294 N.W.2d 675 (Ct. App. 1980). Where counsel’s inaccurate statements likely affected the jury’s verdict, reversal is appropriate where the trial court erroneously exercised its discretion. See Lenarchick, 74 Wis. 2d at 457-58.  

"We conclude the trial court improperly exercised its discretion by overruling Herbst’s objection to the City’s erroneous statement of the law that manipulation of the controls of a motor vehicle includes placing hands on the steering wheel. If the City meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes “operate” within the meaning of Wis. Stat. § 347.63(3)(b), that is a correct statement of the law. But that is not how the City framed its discussion of the meaning of “operate.” The City plainly intended to convey to the jury that “operate” includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition.

"Moreover, in overruling defense counsel’s objection to the City’s inaccurate statement of the law regarding what constitutes “operate,” the trial court appeared to defer to the jury’s understanding of whether simply having hands on a steering wheel is “operating” within the meaning of the statute by stating: “This is final—this is argument, counsel. She’s allowed that latitude. I will allow her to do that. These people are intelligent people. They can make that decision. That’s their job.” (Emphasis added.) It is not clear what the court intended by responding to defense counsel’s objection in this manner. However, it is possible that a reasonable juror, listening to the City’s erroneous statement of the law, defense counsel’s objection, and the court’s response, would be confused as to a juror’s proper role in deciding what constitutes “operate” and whether simple placement of hands on a steering wheel is manipulating or activating the controls of a motor vehicle.  

"Usually, errors of the type committed here may be cured by the court reading the appropriate jury instruction. The court did so here. However, the jury instruction explaining the meaning of “operate,” Wis JI-Criminal 2668, is stated in general terms, consistent with its statutory definition. The instruction itself does not parse out the various ways by which a person may manipulate or activate the controls of a motor vehicle as a way of providing concrete examples of what constitutes “operate.” That is a problem here because the jury was left with the erroneous impression that manipulating the controls of a motor vehicle included turning on the ignition, or pressing down the gas pedal, or—significant here—placing one’s hands on a steering wheel. The City appears to concede this error, never addressing at all in their briefing the issues of the closing argument or the jury instruction relating to “operate.”  

Due to the misstatements of law by the prosecutor, coupled with the judge's apparent tacit approval of it by failing to intervene and sustain the objection, a new trial was ordered. 

Editor's Note: Kudos to the defense attorney for timely objecting, thus preserving the error for appeal!

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OWI Law - Illegal Entry Through Open Door Forces DUI Dismissal

In State of Iowa v. Dierks, Slip Copy, 2011 WL 6076538 (Table) (Iowa App.), a concerned citizen reported a possible drunk driver. While following that person, the alleged DUI driver pulled into a business garage, parked with the garage overhead open, and entered into a business. The 'business' door was open, but a screen door was closed. The entrance did not appear to be one that would be used by the public at large. The police officer knocked and no one responded. The cop found the driver urinating in the restroom, and asked him to step outside. Once outside, the cop developed probable cause to arrest.

On appeal, the defendant alleged that entry was illegal. The Iowa court wrote:

The determination of whether Dierks “has a legitimate expectation of privacy concerning a specific area is made on a case-by-case basis, considering the unique facts of each situation.” See id. at 563 (quoting State v. Legg, 633 N.W .2d 763, 767 (Iowa 2001)). In resolving this issue, we do not ask “whether the individual has chosen to conceal some private activity but whether the government's intrusion infringes upon the personal and societal values protected by” the constitution. Id. (quoting State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998)).

“Although each case is unique,” we have differentiated business activity in a home. See id. (stating a guest in a home does not have a legitimate expectation of privacy if the guest is “on the premises merely to conduct a business transaction”). Additionally, “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967).

Courts have also concluded that “[a]n open gate invites entry.” United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001) (holding no constitutional violation when police entered an open business to ask the owner's permission to conduct a search). In United States v. Sandoval–Vasquez, 435 F.3d 739, 742–44 (7th Cir.2006), the officers in that case entered an open business around 4:30 p.m. by walking through the garage and a pedestrian entrance. The court noted the fact the business “may have been in the process of closing” did not make the entry unconstitutional, and distinguished an earlier case in which the officers unconstitutionally entered “a business they knew was closed.” Id . at 743.

"Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar, 268 F.3d at 532; see also Sandoval–Vasquez, 435 F.3d at 742–44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.


As to the State's claim of exigent circumstances, the court responded:

"The absence of hot pursuit requires us to carefully examine the claim of destruction of evidence. Id. at 566. There was no evidence Dierks knew Quandt was looking for him. There was no evidence Quandt suspected Dierks was engaged in any purposeful activity within the business premises that would destroy the integrity of any future chemical tests. Dierks's opportunity to flee by vehicle was denied, as Quandt blocked Dierks's car in the garage with his patrol car. There was no evidence concerning any efforts by police to seek a warrant or to determine the amount of time it would take to secure a warrant. Like the situation presented in Lovig, the facts here do not support a finding of exigent circumstances. See id. at 566–67. We therefore do not believe Quandt was entitled to enter through the rear door without a warrant or consent."

Therefore, the court reversed the defendant's conviction with directions to suppress.
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OWI Law - Wisconsin OKs Attack on Prior Convictions to Beat Felony Charges

In State of Wisconsin v. Decorah, Slip Copy, 2011 WL 6090109 (Wis.App.), the defendant was arrested for his fifth OWI offense. Decorah collaterally attacked a prior OWI conviction, alleging that he did not validly waive his right to counsel in that prior case. In particular, Decorah contended that he did not validly waive his right to counsel in his second OWI case because he did not know the applicable range of penalties when waiving counsel. After a hearing, the circuit court agreed that Decorah did not validly waive his right to counsel in the second OWI case. He was sentenced instead as a 4th offender and then the State appealed. Referring to previous caselaw the court affirmed:

"In Ernst, the supreme court explained that, in the context of sentencing based on prior convictions, a collateral attack may be based on a defendant's having not known or understood information that should have been provided when waiving the right to counsel in the prior proceeding:

[To collaterally attack,] the defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.... For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she “ did not know or understand the information which should have been provided ” in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel.

 Id., ¶ 25 (emphasis added). As pointed out in Ernst, the constitutionally required information is set out in Iowa v. Tovar, 541 U.S. 77, 81 (2004). See Ernst, 283 Wis.2d 300, ¶ 15. Tovar explains that a waiver of the Sixth Amendment right to counsel is valid “ ‘when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.’ “ See Ernst, 283 Wis.2d 300, ¶ 15 (quoting Tovar, 541 U.S. at 81). Thus, Ernst, contrary to the State's position, teaches that not knowing or understanding the range of punishments is a basis for a collateral attack because it results in an invalid waiver of counsel."

Editor's Note: Even with a waiver of counsel, a prior conviction might be subject to attack for the reasons stated above.

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DUI Law - Michigan Says Certificate of Mailing Inadmissible Confrontation Clause Violation

This case comes to DAD thanks to the watchful eyes of incoming Michigan State Delegate Mike Nichols. In People V. Nunley, --- N.W.2d ----, 2011 WL 4861858 (Mich.App.) the State appealed the circuit court's order denying the prosecution's motion in limine to admit the Secretary of State's certificate of mailing on the ground that it violated defendant's right to confront witnesses against him.

According to the pertinent facts, a police officer cited defendant for driving while license suspended, (DWLS). The prosecutor obtained defendant's “certified driving record, signed and sealed by the Secretary of State” from the Secretary of State's Office. Included as part of defendant's driving record is a “Certificate of Mailing of Orders and Rest Lics .” The certificate provides in the relevant provisions:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 [handwritten] OFFICER OR EMPLOYEE F. BUETER

 On July 27, 2010, the district court held a hearing on the prosecutor's motion in limine. The district court held that by its nature, a “certificate” requires a signature and that because, “I don't find any other reason why this document would be used except in litigation,” the Confrontation Clause in the sixth amendment of the federal Constitution requires that, in order for the certificate to be admitted in defendant's trial, the person who prepared the certificate must appear and be subject to cross-examination. In sum, the district court denied the prosecution's motion in limine finding that a signature was required on the certificate in order for it to be effective as a basis for a DWLS charge, and, that admission of the certificate without testimony of its author would violate defendant's Sixth Amendment Confrontational Clause rights.


On appeal, the prosecutor argued that the certificate of mailing at issue is analogous to a docketing statement or a clerk's certification authenticating an official record and is therefore non-testimonial and admissible. In support of his argument, the prosecutor relied on the following passage in Melendez–Diaz:

"The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk's authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” [ Melendez–Diaz, 129 S.Ct at 2538–2539 (citations omitted).]

The Michigan appellate court wrote in response:


"The prosecutor asserts that the situation in the present case is identical, arguing that Secretary of State records are similar to a clerk's certification. The prosecutor has missed a crucial distinction. If the document at issue was merely a copy of defendant's driving record sent along with the “Certificate of Mailing,” and “F. Beuter” was merely certifying the authenticity of that record, the prosecutor would have an excellent point. But, the copy of the record is not at issue and Beuter was not certifying its authenticity. Beuter was certifying that the notice of suspension had been sent, the very fact that must be proved to convict defendant of DWLS. The critical distinction is that the author of the certificate of mailing, here F. Bueter, is providing more than mere authentication of documents, he is actually attesting to a required element of the charge. Unlike a docketing statement or clerk's certification, the certificate of mailing will be used against defendant to prove an element of DWLS–2nd offense and is necessary for establishing an essential fact at trial.


The prosecutor also argued that the certificate of mailing is admissible because the Secretary of State's records are not prepared “solely” for trial. It cited to state law requiring that notices of suspensions be sent to the driver and that records of the same be maintained. in rejecting this position, the court replied:

"Careful review of MCL 257.204a reveals that it does not require creation of the certificate or maintenance of the certificates in the Secretary of State's records. Although MCL 257.204a(1)(h) requires the maintenance of “notices,” it does not require records to be kept of the certificates verifying the fact that a notice has been sent. Our review of the record in this case shows that the certificate of mailing does not appear in defendant's certified driving record. The Secretary of State created the certificate of mailing independent of MCL 257.204a.


Additionally, the court wrote:


"A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant." (emphasis in original)"

In sum, the court stated:


"It is important to keep in mind just what the prosecutor wants to have admitted and what the lower courts refused to admit. It was not defendant's driving record. Nor was it the notice of suspension. It was the certificate of mailing that the notice of suspension was in fact mailed to defendant. The key factor in this case is that the certificate of mailing is proof of notice by virtue of the plain language of MCL 257.212, which will indisputably be used to establish an element of the offense charged."

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DUI Law - Wisconsin Says Car Search For Pot OK After OWI Arrest

In State of Wisconsin v. Billips, Slip Copy, 2011 WL 4578555 (Wis.App.), the defendant Billips was stopped for speeding. The officer Kinservik noticed some open bottles in the vehicle, one of which had dark liquid similar to alcohol. The driver was removed and eventually arrested for OWI. Subsequent to the arrest, the officer returned to the vehicle, recovered the open bottle, and also located a marijuana cigar end, a “blunt,” in plain view on the center console of the car. The officer then searched a purse that was in the backseat of the car and found more marijuana inside the purse. The defendant claimed that these items were located during an illegal inventory search that violated the recent SCOTUS case of Arizona v. Gant.
The appeals court reversed, holding that the search of the vehicle was justified to find more evidence of intoxication, including returning to the vehicle to recover the open bottle of possible alcohol:


"In reaching our conclusion, we reject Billips' contention that Kinservik's removal of an open bottle of alcohol prior to her arrest renders the subsequent search of her vehicle unreasonable under Gant. Specifically, Billips contends that at the point of her arrest, “it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle.... [I]f Ms. Billips left intoxicants in plain view in her vehicle, it is not reasonable to assume there were others stashed away out of the deputy's sight.” In other words, Billips argues that because Kinservik had already removed some evidence from her vehicle, it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle. This same argument was considered by this court in State v. Smiter, 2011 WI App 15, ¶ 16, 331 Wis.2d 431, 793 N.W.2d 920, and rejected as “nonsensical.” There, the court observed, “ Gant expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found.” Smiter, 331 Wis.2d 431, ¶ 16."

"Here, it was reasonable for Kinservik to believe that further evidence related to Billips' OWI arrest might be found in the vehicle. We agree with the State that this would include alcohol or any other substance that would contribute to the impairment of the driver.FN3 At the time of the search, Kinservik had yet to remove the plastic bag with liquid on top of it. Further, when he entered the vehicle, Kinservik testified: “I found what I know to be an end of a marijuana cigar, a blunt, that was in plain view when I entered the vehicle.” FN4 This additional discovery further supports the reasonableness of the search of Billips' vehicle, including the purse in the back seat. See Gant, 129 S.Ct. at 1719 (citing New York v. Belton, 453 U.S. 454 (1981) and Thornton v. United States, 541 U.S. 615 (2004), in which the defendants were arrested for drug offenses, as cases in which “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein”). Under Gant, Kinservik could lawfully search both the vehicle and the purse for further evidence related to OWI."
 

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DUI Law - Indiana Driver Fights Forced Catheterization

In Lockard v. City of Lawrenceburg, Indiana, Slip Copy, 2011 WL 3902796 (S.D.Ind.) the defendant sued the City for alleging violating his civil rights when they forced a catheterization even after the defendant had submitted to a blood draw. At approximately 10:40 p.m. on March 13, 2009, Officer Miller pulled over Mr. Lockard after observing him driving at a high rate of speed and failing to stop at two stop signs. While speaking with Mr. Lockard, Officer Miller detected an odor of alcohol and observed physiological signs of intoxication, such as bloodshot eyes and slurred speech. Officer Miller began an OWI investigation, performing a series of field sobriety tests, which Mr. Lockard failed, and administering a portable breath test, which registered a reading of 0.07%. Officer Miller then asked Mr. Lockard to submit to a chemical test after advising him of Indiana's Implied Consent Law, but Mr. Lockard refused. Accordingly, Officer Miller arrested Mr. Lockard and applied for a search warrant. A search warrant was issued on March 14, 2009, at 12:10 a.m. by Magistrate Kimberly Schmaltz of the Dearborn Superior Court.

The warrant provided: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.

At roughly 1:35 a.m., Officer Miller and Officer Lanning took Mr. Lockard to bed number nine in the Emergency Department; the curtains were pulled around the bed to protect Mr. Lockard's privacy; Officer Miller handcuffed Mr. Lockard to the bed; and Officer Miller and Officer Lanning grabbed Mr. Lockard's ankles in order to restrain him “so he wouldn't kick any of the nurses.” Officer Miller testified that during this time, Mr. Lockard was actively resisting the procedure. When asked if he complied with the catheterization, Mr. Lockard testified that he was “forced into complying.” Mr. Lockard told Nurse Walston that he did not want to be catheterized. Nonetheless, Nurse Walston pulled down Mr. Lockard's pants, exposing his genitalia, and prepared a sterile field by putting on sterile gloves and cleansing Mr. Lockard's penis with Betadine.


Nurse Walston subsequently prepared a straight size 16 Foley catheter for insertion by applying lubrication to the catheter. She then attempted to catheterize Mr. Lockard by beginning to insert the Foley catheter into his penis. Around this time, Mr. Lockard informed Nurse Walston that he had an enlarged prostrate. For this reason (and because she was perceiving a lack of cooperation on Mr. Lockard's part), Nurse Walston removed the Foley catheter and began preparing a Coude catheter, which is smaller and can pass through an enlarged prostrate. The procedure with the Coude catheter was completed and a urine specimen was obtained in roughly two minutes. Mr. Lockard claims that he suffered considerable pain during the procedure, describing it as “[j]ust as if somebody would take a burning hot coal and stick it up your penis” and “worse than a toochache.” Mr. Lockard was not examined following the catheterization, and he was discharged from the Dearborn County Hospital shortly after 2:00 a.m., into the custody of the Lawrenceburg police.


Mr. Lockard was taken to jail and charged with OWI, OWI Refusal, and Obstruction of Justice for refusing to consent or cooperate in the catheterization.FN5 While at jail, Mr. Lockard noticed that his urine was “cloudy.” Roughly one week after the incident, on March 20, 2009, Mr. Lockard visited Dr. Lynn Eiler for problems related to burning urination. Dr. Eiler prescribed Mr. Lockard antibiotics, which apparently cured the burning. However, Mr. Lockard's urinalysis was negative for infection. On June 15, 2009, Mr. Lockard again sought treatment for urination problems, this time with Dr. Samantha Wood. Dr. Wood referred Mr. Lockard to Mr. Michael Maggio, who, on July 6, 2009, noted that Mr. Lockard's prostate “was tender consistent with clinical prostatis.” That said, it is worth noting that Dr. Michael Koch, a physician hired by defense counsel, has reviewed the relevant evidence and opined that the catheterization at issue was “atraumatic and no urologic injury occurred to [Mr. Lockard].”


On April 3, 2009, the Indiana State Department of Toxicology received Mr. Lockard's blood and urine specimens for testing purposes. Weeks later, on April 20, 2009, Mr. Lockard entered into a plea agreement, in which he pleaded guilty to reckless driving and received a 180 day suspended sentence, 180 days of probation, a $100 .00 fine, and was assessed $165.00 in court costs. On June 23, 2009, the Department of Toxicology reported that Mr. Lockard's blood ethanol level was 54 mg/dl (or 0.05%) and his urine ethanol level was 85 mg/dl (or 0.08%). On July 6, 2009, the Department of Toxicology reported that Mr. Lockard's blood tested positive for benzodiazepines, opiates, marijuana, oxycodone, opiods, and MDMA (i.e.ecstacy). Mr. Lockard's urine tested positive for benzodiazepines, opiates, marijuana, oxycodone, and hydromorphine/hydrocodone. At his deposition, Mr. Lockard described these results as “bogus,” “trumped up,” and “fantasy land.”

Importantly, the warrant provides: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.

Specifically, in November 2008, Officer Miller attended a recertification continuing education course at which Dr. Wagner, the head of the Department of Toxicology at Indiana University, told the officer that Indiana University Department of Toxicology needed samples of both urine and blood specimens when completing toxicology kits. On this point, Officer Miller testified that the Department of Toxicology does “preliminary testing on the urine to have an idea what to test for in the blood ... [t]hat way they don't use the blood sample just running queries to see what may test positive in it.” FN1 Moreover, the state kit from the Department of Toxicology contained vials for both blood and urine. Finally, Officer Miller testified that because the warrant required both blood and urine samples, he felt obligated to obtain both, stating that “[i]t's an order from the judge ... I'm complying with the judge's order.”



The District Court in considering the defendant's Motions to Dismiss discussed the law applicable:

"There are two leading Supreme Court cases addressing whether the state's intrusion into a criminal suspect's body constituted a Fourth Amendment violation. First, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the police did not violate the Fourth/Fourteenth Amendments when, with probable cause but without a warrant, they had a physician extract blood from a person suspected of drunk driving who had declined a breathalyzer test and objected to a blood test. Id. at 772.

"Of course, not all intrusions into a suspect's body are permissible under the Fourth Amendment. This point was driven home in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), where the Supreme Court ruled that the State of Virginia could not compel a criminal suspect to undergo a surgical procedure to remove a bullet lodged in his chest, even though the bullet would have been helpful to the state in prosecuting the suspect for attempted robbery. Id. at 767. To that end, Winston emphasized that “a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.” Id. at 761. Moreover, Winston applied the Schmerber balancing test, which weighs the following factors: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity; and (3) the community's interest in fairly and accurately determining guilt or innocence. Id. at 761–63.FN8 One upshot of Winston is that the “reasonableness of surgical intrusions beneath the skin depends on a case-bycase approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure.” Id. at 760.

"Clearly, in terms of intrusiveness, a case like Mr. Lockard's—involving forced catheterization—falls in between Schmerber and Winston. In fact, the Seventh Circuit has expressly recognized that removing urine through the placement of a catheter is not as intrusive as the removal of a bullet, but that it is worse than a blood draw. See Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir.1995) (“A catheter is more intrusive than a needle but less intrusive than a scalpel, making it hard to classify the procedure under an objective reasonableness inquiry.”). Further, at the time of the incident—March 13 and14, 2009—the Seventh Circuit had addressed forced catheterizations in the context of § 1983 on two occasions."

In granting the defendant's Motions to Dismiss, the District Court found several cases holding that forced catheterizations are not an unreasonable procedure for gathering evidence (see opinion below). As such, the court found that the defendants were entitled to qualified immunity and dismissed the case:

"Beginning with the first method of showing the existence of a “clearly established” right, the Court simply cannot find that, at the time of Mr. Lockard's catheterization, a closely analogous case established that any of the individual Defendants' conduct was unconstitutional. To the contrary, Seventh Circuit precedent is clear that an involuntary catheterization does not automatically violate the Fourth Amendment as a matter of law, even in the absence of a warrant. See Sparks, 71 F.3d 648. Significantly, here, the warrant required the removal of both blood and urine samples."

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OWI Law - Indiana Say 5 Person Jury Trial OK with Defense Consent

In Bex v. State of Indiana --- N.E.2d ----, 2011 WL 3667054 (Ind.App.), the defendant proceeded to trial on an OWI. A jury of six members was seated without an alternate juror being selected. During the trial, one juror suffered a medical emergency, and the case proceeded to a verdict with the five remaining jurors. Initially, defense counsel acknowledged the defense's agreement to continuing with only five jurors, but counsel later moved for a mistrial, which the trial court denied. The five-person jury found Bex guilty, and the trial court sentenced her to 360 days in jail with 350 days suspended to probation and eighty hours of public restitution work.

On appeal, the defendant claimed that a jury trial of less than 6 was unconstitutional. The Appeal Court held that under the Sixth Amendment, a defendant may waive the statutory right to a six-person jury in cases involving a Class D felony or a misdemeanor and consent to a trial by a five-person jury; based upon a defendant's right to waive the presence of an entire jury, it would be inconsistent that a defendant could not waive the presence of one juror.


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OWI Law - Iowa Rejects Refusal Change of Mind Policy

In Welch v. Iowa Department of Transportation, --- N.W.2d ----, 2011 WL 3522804 (Iowa) the Iowa Supreme Court decided to re-visit the issue as to whether an initial refusal could be cured by a subsequent consent. Here, the defendant initially refused a breath test, but changed his mind eleven minutes later. Nothing had changed during those elven minutes. Iowa reviewed the law across the country, noting that a large minority of states allowed a person to have a 'change of heart' under certain conditions, namely: a previous refusal may generally be cured by a subsequent request for a chemical test so long as the request is made within a reasonable time and the delayed administration of the test will neither materially affect the test results nor substantially inconvenience the police.

In deciding that precedent and simplicity was more important than the goal of determining who was guilty and who was not guilty through actually testing, Iowa claimed that upholding the initial refusal was more important than getting an actual blood or breath result:

"Additionally, a bright-line rule has the advantage of providing clear guidance to law enforcement personnel. Clarity as to what the law requires is generally a good thing. It is especially beneficial when the law governs interactions between the police and citizens. Law enforcement officials have to make many quick decisions as to what the law requires where the stakes are high, involving public safety on one side of the ledger and individual rights on the other. A clear, teachable rule is a high priority. Welch's flexible approach, by contrast, is likely to lead to uncertainty in particular cases. See, e.g., Stone v. McCullion, 27 Ohio App.3d 112, 500 N.E.2d 326, 328 (Ohio Ct.App.1985) (“No specific period of time ... can be laid down as reasonable or unreasonable in any and all events.”).FN9

Also, Iowa's existing, clearcut “one refusal” rule reduces the time and cost burdens on law enforcement. As we noted in Krueger, if a motorist can change his or her mind, this means the officer must remain with or near the arrested motorist, effectively removing him or her from other duties, until the “reasonable” time has expired. 169 N.W.2d at 879; see also, e.g ., Zidell, 71 Cal.Rptr. at 113 (“It would be inconsistent with the purpose of the statute to hold that either [the arresting officer], or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences.”). Welch may argue that the last two of the five Standish factors alleviate this burden, because the initial refusal may be withdrawn only if there will be no substantial inconvenience or expense to the police and the individual requesting the test has been in the custody of the arresting officer. But “inconvenience” is in the eye of the beholder, and debates could arise as to whether the motorist remained in the officer's custody and, if not, whether the officer deliberately placed the motorist in another person's custody in order to avoid a possible retraction."

Editor's note: Bright-line rules is what it's all about, isn't it? In a society where individualism is repressed, and conformism is rewarded, we should all applaud Iowa's decision not to be swayed by the thought of giving someone one more chance to prove they are innocent. Whew! That was a close one! One almost got away! It reminds me of the song from Music man entitled Iowa Stubborn, where the below lyric is found:

“We can be cold as our falling thermometers in December if you ask about our weather in July. And we're so by God stubborn we can stand touchin' noses for a week at a time, and never see Eye to Eye.”

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OWI Laws - Maine Says Illegal Stop By Information-Seeking Cop

This gem comes to DAD via Maine NCDD Member Wayne Foote. In State of Maine v. LaPlante, --- A.3d ----, 2011 WL 3298509 (Me.), 2011 ME 85, The question presented was whether evidence obtained from an information-seeking stop of a single vehicle, made in the absence of any reasonable articulable suspicion, for the sole purpose of investigating a third party's civil speeding infraction, can be used in a criminal proceeding against the person who has been stopped.



On September 1, 2007, Elmer Farren, a trooper with the Maine State Police, was patrolling in his marked cruiser on Route 179 in Hancock County. While on patrol, the trooper clocked by radar a red Pontiac automobile traveling seventy-one miles per hour in a forty-five-mile-per-hour zone. As the trooper was making a turn to pursue the car, a motorcycle passed him.



The trooper lost sight of the car, and after traveling a brief distance, arrived at a fork where Route 179 intersects Route 180. He continued along Route 179 but did not see the Pontiac, so he drove back to the fork. On Route 180, the trooper still did not see the Pontiac, but he did come upon the motorcycle. The trooper stopped the motorcyclist “to take a chance that maybe the motorcycle operator had seen where this vehicle might have turned.” He activated his blue lights and stopped the motorcycle, which was being operated by LaPlante, for the sole purpose of asking about the direction of the Pontiac. LaPlante had not been speeding or noticeably breaking any laws, and his motorcycle did not demonstrate any vehicular defects that might justify a safety-related stop.



LaPlante was able to identify where the Pontiac had turned. While they spoke, the trooper noticed that LaPlante seemed “a little bit unstable on his feet” and “his speech seemed to be thick.” The trooper surmised that LaPlante might have been drinking. He requested LaPlante's license and redirected his efforts to investigating LaPlante for operating under the influence. LaPlante was eventually charged with criminal operating under the influence (Class C), 29–A M.R.S. § 2411(1–A)(C)(3). LaPlante moved to suppress the evidence obtained during his vehicle stop, but the court denied the motion.



The Supreme Court reversed the denial of the motion to suppress. They concluded that a law enforcement officer's investigation of a third party's civil speeding offense cannot, standing alone, justify the stop and seizure of a motorist:

"The three Brown v. Texas factors lead us to conclude that the public interest in addressing a civil speeding infraction, and the degree to which that interest is furthered when a single motorist is stopped for questioning, is far outweighed by the substantial interference with the stopped motorist's constitutionally-protected liberty interest. The investigation of a civil speeding offense does not justify the discretionary seizure of a motorist in the absence of reasonable articulable suspicion. Accordingly, the evidence derived from the trooper's stop of LaPlante should have been suppressed."

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OWI Appeal - Improper Remarks by Prosecutor Re Testing is Declared

In State of Wisconsin v. Numrich Slip Copy, 2011 WL 3300202 (Wis.App.) the defendant was convicted of OWI. On appeal, the court held that several of the prosecutor's comments or questions were improper. First, the prosecutor raised an objection, and blurted out in front of the jury:

[Prosecutor]: Your Honor, I'm going to object to this line of questioning at this point. Um, all this stuff about air in the bottle, the mixture, counsel had the sample available, he knows he had it tested, and the implication in front of the jury at this point is that there's potentially a problem here. Counsel knows there was no problem and is—

[Defense Counsel]: Judge, I object—

[Prosecutor]:—again, and therefore this line of questioning is both irrelevant and improper because Counsel knows there's no factual basis for the implication of those questions.

On appeal, the prosecutor admitted that this remark was wrong, but sought to excuse it as having been made in the heat of the litigation.
Second, the prosecutor called the State Chemist. During redirect, the prosecutor asked if the blood sample had been picked up for independent testing, and the chemist answered that it had been forwarded to another lab for testing. Numrich's objection was sustained and the trial court instructed the jury to “disregard that line of questioning.”

Third, the defense called an expert to criticize the State's blood test. On cross-examination the prosecutor asked the defense expert if he was involved with the independent testing of the blood sample. The trial court allowed the question over Numrich's objection. The expert answered that he was not involved in the testing, but he had had access to the results.

Fourth, Numrich took the stand. He testified in direct examination that he had consumed the equivalent of twenty-six twelve-ounce beers on Saturday, April 4, 2009, and that he consumed the equivalent of four twelve-ounce beers on the morning of Sunday, April 5, 2009, prior to driving. He further testified that he did not feel impaired by the alcohol, and that he had been drinking his entire adult life and he knew when he had had too much to drink. The State argued that this opened the door for evidence of Numrich's past OWI convictions to impeach his testimony that he knew when he had had too much to drink. The trial court agreed, and the State was allowed to ask Numrich on cross-examination whether he had, on previous occasions, been caught drunk driving, to which Numrich answered that he had.

Fifth, during closing arguments, the defense attorney reviewed the evidence and stated that, in his mind, the evidence created a doubt as to Numrich's guilt. During the State's closing argument the prosecutor said that “[j]ust because [the defense attorney] says something doesn't mean it's true, it means he wants you to think that because it's his job to create doubt.” Numrich made no objection to this comment at the time, but now claims that the prosecutor was improperly disparaging the defense attorney.
All of these issues were then reviewed on appeal. The appeals court found that the prosecutor's repeated references to the independent lab testing was improper, as they were comments 'on matters outside the record.' As to the introduction of defendant's priors, the court found that the defendant's testimony opened the door to the priors.

As far as the comment during closing that the defense attorney's job was "top create doubt" the court found the remark improper.

The trial court found that the prosecutor's statements, when viewed in their proper perspective, were not “overly damaging to the point where the defendant's day in court is being unfairly compromised.” Rather than grant a mistrial, the trial court issued jury instructions informing the jury that any remarks by the attorneys that suggest facts not in the evidence should be disregarded and that no adverse inferences should be drawn from attorneys' objections. And on appeal, the appellate court found the errors to not be sufficient to cause a new trial:

"In the present case, although the prosecutor's trial conduct was somewhat imprudent at times, there is simply no substantial probability that a new trial would have a different result. See id., ¶ 65. Numrich showed all of the signs of intoxication in the one road-side test that he was able to complete. His blood test revealed a blood alcohol content of 0.25, well over the legal limit, and while Numrich raised the specter of sample contamination during cross-examination of the State's witness, when he completed his defense, he had not shown any evidence of actual contamination of his sample. Thus, during closing arguments, the prosecutor was finally on solid ground in commenting that there was no evidence of contamination of the sample. As well, the defense expert admitted that based on the number of drinks Numrich testified to consuming, Numrich's blood alcohol content should have been around 0.12, also well over the legal limit. Because the improper statements of the prosecutor are inconsequential when viewed against the weight of the evidence against Numrich, we decline to order a new trial."

Editors Note: it is troubling that these legal opinions normally fail to identify by name the prosecutor who commits the improper remarks, in my opinion. The opinion does state that the same person who wrote the State's brief was also the trial prosecutor. The author's name is Daniel Kaminsky.


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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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OWI Appeal - Driving Too Slow or Stopping Is Grounds For Seizure Says Wisconsin

When it comes to the 4th amendment, it seems that merely driving a car is tantamount to reasonable suspicion to stop it in Wisconsin. Well not exactly, but close enough. In State of Wisconsin v. Slip Copy, 2011 WL 2899066 (Wis.App.), the officer observed a truck that drew his attention. The truck drew his attention because it was traveling “at an extremely low rate of speed, slowing to an almost near stop” at an intersection at which there were no signs to stop or yield. The truck then accelerated and reached a second intersection one block away, which also had no stop or yield signs, despite which the truck came “to a complete stop.” So far as the officer could observe, there was no other traffic or other reason for the driver of the truck to have slowed to a near stop at the first intersection or to have come to a complete stop at the second intersection.'

The officer testified that he became suspicious that the driver was impaired based on the following combined factors: the time of night (namely, “the early morning hours[,] right around bar time”), the extreme slowing at the first unmarked intersection, and the complete stop at the second unmarked intersection. On that basis, the officer decided to make a traffic stop to investigate further.

The appeals court herein found the stop legal. In rejecting the argument that the stop was unlawful since the driver had done nothing wrong, the court stated:

"These arguments ignore the rule that “police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.” (citation) “[S]uspicious conduct by its very nature is ambiguous, and the [principal] function of the investigative stop is to quickly resolve that ambiguity.” Id. “Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.” Id. In other words, a Terry stop allows police to obtain more information, through temporary “seizure,” regarding potential alternative innocent explanations for suspicious behavior; the potential for discovery of innocent explanations does not foreclose the stop. It is often going to be the case that aberrant driving behavior could have resulted from one or more causes that do not represent a violation of any statute or ordinance. However, where a reasonable suspicion arises from a pattern of aberrant driving, such as that exhibited by Burch under these circumstances, police are permitted to infringe on the right of the driver to be free of stops and temporary detentions so that police can attempt to resolve the ambiguity by detaining the driver for that limited purpose in a limited manner."

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OWI Appeal - Anonymous Tip OK for Traffic Stop Says Wisconsin Court

In

State of Wisconsin v. Coppens, Slip Copy, 2011 WL 2535535 (Wis.App.), an anonymous caller called into the police on a phone line that did not have caller ID. The caller reported that a male driver of a black car with license plate number 953 NRS had nearly hit him in the parking lot of a market. The caller reported that the man “could hardly walk into the store.”

On appeal, the defense claimed that the police did not have reasonable suspicion to stop his vehicle because the anonymous telephone tip that led to the stop lacked reliability and the officer only corroborated readily observable innocent details alleged by the caller.

The Wisconsin court described their test for these situations as follows:

"Information from an anonymous caller can create reasonable suspicion to justify an investigative stop when the caller provides reasonable indicia of reliability. There is no per se rule of reliability, but three factors inform our decision: (1) the caller's veracity; (2) the caller's basis of knowledge; and (3) whether, under the totality of the circumstances, the activity described by the caller describes an imminent threat to public safety. Drunk driving falls into the category of serious threats to public safety, and an officer is not required to wait to personally observe signs of erratic driving or intoxication." (citations omitted)OWI Appeal -

Most courts will find anonymous informers more reliable if they call into phone lines that are known to have Caller ID, or when the complaint is made face-to-face with a police officer, because these people risk being charged with making a false report if they were to lie. Wisconsin took this analysis one step further here:

"[W]e conclude that the caller presented sufficient indicia of reliability to justify the traffic stop. The record contains no reason to believe the caller would have known that the number he called was not equipped with caller identification. He had no basis for knowing how long it would take the police to respond and the officer could have arrived before the caller left the parking lot. Under the circumstances, a caller making a false report would run the risk of being identified and prosecuted if he deliberately lied. See § 946.41 (2009–10). There is also no reason to conclude that the caller purposefully withheld any identifying information or would not have provided his name if he had been asked. Under these circumstances, the record provides no reason to doubt the caller's veracity."

Applying the other factors, the court concluded that the stop was lawful, explaining:

"The caller also demonstrated sufficient basis of knowledge. He reported that he personally observed the driving and the degree of impairment. He reported specific details that showed how he came to know of the illegal activity. Olson was able to confirm that a black car driven by a male with a specific license plate number was present at the location the caller identified within a few minutes of the call. Even if some of these details were “innocent,” they provided Olson with a basis to test the reliability of the anonymous caller. See State v. Williams, 2001 WI 21, ¶ 37, 241 Wis.2d 631, 623 N.W.2d 101. If “an informant is right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.” Alabama v. White, 496 U.S. 325, 331 (1990).


Finally, the anonymous caller reported an imminent threat to public safety. Olson stopped Coppens on a busy roadway with both vehicle and pedestrian traffic. He was not required to endanger public safety by delaying the traffic stop until he could independently confirm Coppens' intoxication."

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OWI Appeal - Out of State Reckless Counts as a Prior, Says Wisconsin

In State of Wisconsin v. Malsbury, Slip Copy, 2011 WL 2201190 (Wis.App.) the defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving. As stated by the Wisconsin court:
"The issue in this appeal is whether Malsbury's reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin's OWI law. Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. WIS. STAT. § 346.65(2). When determining the penalty for OWI, Wisconsin courts count:

Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws."

In most jurisdictions (if not all of them) penal statutes are strictly construed in favor of the accused. Under a strict reading of the Wisconsin statute, a reckless driving doesn't count. But that's not what Wisconsin said:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

Wisconsin admittedly decided that what was worst for the defendant was best for the citizens of Wisconsin:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

"Our holding is consistent with the purpose of Wisconsin's OWI laws. As the Wisconsin Supreme Court stated, WIS. STAT. § 343.307(1)(d) was meant to “apply broadly to prior out-of-state conduct.” State v. Carter, 2010 WI 132, ¶ 42, 330 Wis.2d 1, 794 N.W.2d 213. We will construe the OWI laws “to facilitate the identification of drunken drivers and their removal from the highways.” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Additionally, “the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.” State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). Counting Malsbury's reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin's OWI laws."

Editor's Opinion: Courts generally do not interfere with legislative decisions. In fact, where a statute is clear and unambiguous, it should be applied without resort to other extrinsic aid, or without resort to determining legislative intent. Surely the statute, if it was meant to include a DWI/DUI reduced to reckless, could have specifically included that phrase. The court failed to follow the doctrine of "inclusio unius est exclusio alterius" which means "the inclusion of one thing necessarily excludes all others not specifically mentioned."


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OWI Appeal - Iowa Bars Use of Prior Arrests Unless Convicted

In State of Iowa v. Figueroa, Slip Copy, 2011 WL 2090020 (Table) (Iowa App.), the defendant was charged as a 3rd time offender and pleaded guilty. A pre-sentence report revealed multiple charges and offenses for which she had been arrested but not convicted. The trial court, specifically stating that it took into account the arrests, sentenced the defendant to 5 years in jail. In vacating the sentence and remanding, the appeals court stated:

"In imposing her sentence, the district court stated that it reviewed the PSI and addendums attached and that Figueroa had been arrested twenty-two times in the past ten years. See State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct.App.1991) (finding the sentencing court “considered matters which it legally should not have considered, such as the defendant's record of arrests without convictions”). Where a sentencing court makes a specific reference to unprosecuted and unproven charges it is an affirmative showing the district court considered those charges. State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Consequently, we find the district court abused its discretion by considering unprosecuted and unproven charges. Compare id. (“When considered in context with the remainder of the court's explanation for imposing sentence, the reference to ‘additional crimes' is not ‘an affirmative showing’ that the court considered unproven charges.”), with State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (“The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption that his discretion was properly exercised.”). We are required to vacate Figueroa's sentence and remand for resentencing. State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct.App.1994). We note that the district court also considered permissible factors, such as Figueroa's extensive record of convictions, probation violations, and being found in contempt. By vacating and remanding, we do not imply that permissible factors would not support the sentence imposed and make no judgment as to what the sentence should be."

Editor's notes: Most states prohibit the use of bald arrests as a factor for sentencing. Instead, these states require the prosecutor to 'prove up' the arrests with reliable evidence, before they can be used.


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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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OWI Appeal - Wisconsin Court Uses Failures to Appear as Priors

In State of Wisconsin v. Devries, Slip Copy, 2011 WL 1844721 (Wis.App.), the defendant was found guilty of drunk driving and sentenced as a 5th timer based on the inclusion of Arizona and California drunk-driving matters as prior “convictions” under the Wisconsin statutes. The issue on appeal was whether the events in those states properly counted as prior convictions.
In Arizona, the documents indicated that: (1) Devries was arrested on August 31, 2005 for drunk driving; (2) Devries was directed to appear in court on the specified date; (3) Devries promised to appear in court on the specified date; (4) Devries had a lawyer for the Arizona matter; and (5) Devries defaulted on her obligation and promise to appear in court. Indeed, one of Devries's trial lawyers conceded that Devries had “violated a condition of her bond” in Arizona.
The appeals court in Wisconsin then held that the failure to appear was a conviction, and stated:
"Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by WIS. STAT. § 340.01(9r) because she did not appear in court when required. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”)"
In California the evidence evinced that: (1) Devries was arrested on December 26, 2003, for drunk driving; (2) Devries was “ordered” to appear in court on the date specified in the Notice to Appear; (3) Devries promised to appear in court on the date specified in the Notice to Appear; (4) Devries did not appear on the date specified in the Notice to Appear; (5) Devries had a lawyer for the California matter; (6) Devries pled “not guilty”; and (7) Devries did not appear for trial.
The Wisconsin appeals court then held that:
"Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by WIS. STAT. § 340.01(9r) because she did not appear in court after she was arrested and released even though she was “ordered” to do so, and she did not appear on the date scheduled for trial. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”).
Devries also argued that she did not have the requisite constitutional protections in connection with the Arizona and California matters, and that, therefore, those matters could not be counted to enhance her penalties for driving drunk in Wisconsin. The Wisconsin court, in disagreeing with Devries' contention, stated as follows:

Offenses that the State seeks to use as a penalty enhancer for a current offense may be collaterally attacked if the procedures underlying those predicate offenses were constitutionally flawed. See State v. Ernst, 2005 WI 107, ¶¶ 2, 22, 25, 283 Wis.2d 300, 306–307, 317, 318, 699 N.W.2d 92, 95, 100–101 (The “defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.”). If the defendant makes a prima facie showing that the procedures in the underlying matters were constitutionally flawed, the State has the ultimate burden to show that they were not. Id., 2005 WI 107, ¶ 27, 283 Wis.2d at 320, 699 N.W.2d at 102. In trying to meet that burden, the State has a right to question the defendant about the matters encompassed by the alleged constitutional infirmities. Id ., 2005 WI 107, ¶¶ 30, 33, 283 Wis.2d at 322, 324–325, 699 N.W .2d at 103, 104. If the defendant refuses to testify, the circuit court may conclude that the State has satisfied its burden to show compliance with the constitution. Id., 2005 WI 107, ¶¶ 35–36, 283 Wis.2d at 326–327, 699 N.W.2d at 105. Although the Record does not indicate that Devries refused to testify based on her Fifth Amendment rights, she did not testify about any matters that are of issue on this appeal. While a defendant is certainly not required to testify, the lack of testimony may affect his or her ability to show that the underlying enhancement-proceedings were constitutionally infirm.

Beyond mere assertion, Devries has not pointed to anything that even indicates that any of her constitutional rights were compromised. Indeed, she actually contends in her main brief that she “never knowingly, intelligently, or voluntarily waived her right to the assistance of counsel in California or Arizona” even though both the Arizona and California documents indicate that she did have lawyers in those states in connection with the her drunk-driving arrests.FN4 Her contention that the underlying Arizona and California matters were constitutionally flawed is wholly without merit and borders on being frivolous.FN5"

The Wisconsin court finalized its opinion by making the following bold statement:
"[I]n light of her having absconded in both Arizona and California before the matters there could be tried, her contention that she was not “afford[ed]” a trial is bizarre."
Editor's Note: Under Apprendi, all matters that enhance a penalty (except prior convictions) must be proved during trial beyond a reasonable doubt. Plus, the defendant normally has the right of confrontation. How would SCOTUS treat these type of 'convictions'? Are these documents be affected by the confrontation clause?


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OWI Appeal - Wisconsin Video Can't Beat Judges Eyes

In State of Wisconsin v. Walli, Slip Copy, 2011 WL 1775995 (Wis.App.), an officer equipped with an in-squad video camera stopped the defendant for crossing the centerline. The cop claimed the video accurately established what happened. A review of the tape by the parties and the judge presented differing views of whether the driver crossed the centerline. On appeal, the appellate court first needed to determine what standard of review should be applied to video evidence - 'de novo' or 'clearly erroneous'. "We therefore decide that when evidence in the record consists of disputed testimony and a video recording, we will apply the clearly erroneous standard of review when we are reviewing the trial court's findings of fact based on that recording." The court left for another day the issue of what standard applies when the ONLY evidence is a video.

Since a blind justice may defer to the trooper instead of a video, the court refused to rule in favor of the defendant. "In conference, we viewed the video recording from Munnik's squad car and conclude that the trial court's finding that Walli crossed the center line is not clearly erroneous."

NOTE: Given the need for the court to decide the standard on review here, it is obvious to this writer that the decision about whether the video supported or contradicted the cop was not unanimous.


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OWI Appeal - Wisconsin Says Misreading License Plates OK for Stop

In State of Wisconsin v. Reierson, Slip Copy, 2011 WL 1587124 (Wis.App.), the police officer ran the license plates of a vehicle it was following. The vehicle's registration came back as expired, and the officer activated his emergency lights and made a traffic stop, pulling his squad car up behind the parked vehicle.


The officer got out of his car to make contact with the driver. Approaching the parked vehicle, the officer discovered that he had misread the last numeral on the license plate. The officer testified a small screw or bolt going through the plate had obscured his view of the last numeral. Nonetheless, he officer continued toward to the vehicle to explain his reasons for making the stop. When the officer reached the driver's side window, a man later identified as Andrew Reierson opened his car door to communicate with the officer because his window was stuck. The officer detected the odor of intoxicants on Reierson's breath and noticed that his eyes were red. Reierson performed field sobriety tests at the officer's request, and submitted to a preliminary breath test, which showed Reierson had a blood alcohol content (BAC) of .16. Reierson was subsequently charged with OWI, third offense.

The court stated as follows:

"[W]e conclude the (trial) court properly denied the motion to suppress because the traffic stop was the product of the officer's reasonable belief, which was based on a good-faith mistake of fact, that Reierson was operating a vehicle with an expired registration..."

"We have found no published Wisconsin case addressing the present situation, where the lawfulness of an investigatory traffic stop turns on an officer's good-faith mistake of fact. However, as a general rule, courts decline to apply the exclusionary rule where an officer makes a reasonable, good-faith factual mistake. See United States v. Cashman, 216 F.3d 582, 587 (7th Cir.2000) (where officer reasonably believed crack in windshield was long enough to violate statute, but it was not in fact, officer had probable cause to stop for traffic violation); see United States v. Miguel, 368 F.3d 1150, 1153–54 (9th Cir.2004) (citing United States v. King, 244 F.3d 736, 739 (9th Cir.2001) (“An officer's correct understanding of the law, together with a good-faith error regarding the facts, can establish reasonable suspicion.”)); see also John Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L.Rev.. 1027, 1044 (1974); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. L.Rev.. 307, 348 (1982).

"By contrast, “[s]tops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.” United States v. Coplin, 463 F.3d 96, 101 (1st Cir.2006) (surveying federal circuit decisions), cert. denied, 549 U.S. 1237 (2007); State v. Longcore, 226 Wis.2d 1, 8–9, 594 N.W.2d 412 (Ct.App.1999), aff'd by equally divided court, 2000 WI 23, 233 Wis.2d 278, 607 N.W.2d 620 (officer's erroneous application of law to the facts does not give probable cause for a traffic stop); United States v. McDonald, 453 F.3d 958, 961 (7th Cir.2006) (stop held to be invalid where officer mistakenly believed that Illinois statutes prohibited defendant's use of a turn signal while rounding a bend); but see United States v. Martin, 411 F.3d 998, 1001 (8th Cir.2005) (objectively reasonable mistakes of either fact or law can support probable cause).

The appellate court concluded that the stop of the defendant was lawful because the officer had probable cause to stop Reierson for operating with an expired registration, contrary to Wis. Stat. § 341.04(1), based on the officer's good-faith mistake of fact in misreading Reierson's license plate number.



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DUI Appeal - Wisconsin Ambien Defense and Alcohol

In State of Wisconsin v. Alswager, Slip Copy, 2011 WL 1485477 (Wis.App.), the defendant appealed pro se from a judgment convicting him after a jury trial of operating a motor vehicle while under the influence of an intoxicant, fifth or greater offense, and of operating a motor vehicle with a prohibited blood alcohol concentration (BAC) of 0.02 grams or more. (Yes I said 0.02!). He had a Blood alcohol concentration between 0.20 to 0.249. He attempted to defend his case at trial based upon a mistaken consumption of one of his wife's 5mg tablets of Ambien, which then caused him to black out and begin drinking to excess. The defendant went through several lawyers (a quite interesting read in and of itself) and one of them submitted his blood to testing at a lab that could only measured amounts of Ambien greater that 25 ng/ml (Limit of Detection). That lab's result came back 'negative' for an amount in excess of 25ng/ml. He then fired that lawyer and hired another. The new lawyer submitted the blood to Rocky Mountain Labs (RML), but the lab didn't have the result available by the time of trial. The judge denied the defendant's motion to continue. The defendant proceeded to trial and there testified that he had taken Ambien, and did not remember anything thereafter until awaking in a jail cell. The jury found him guilty.

After trial, the Rocky Mountain Lab reported that they had found Ambien in the blood sample consistent with ingesting one 5 milligram tablet of Ambien. Dr. Lantz of RML prepared an affidavit in which Lantz attested that he could testify that ingesting one five milligram tablet of Ambien “could” render Alswager incapable of knowing the difference between right and wrong and that one side effect of Ambien is consuming and ingesting food and liquids without memory or knowledge at the time of ingestion.

Alswager sought a new trial based on newly discovered evidence and in the interest of justice. He claimed that he could have presented a defense of involuntary intoxication. Alswager asserted that the post-trial lab results and the evidence as set forth in Lantz's affidavit would corroborate the defense raised by him at trial; namely, that he believed he had mistakenly taken an Ambien pill prescribed for his wife, and this caused him to involuntarily drink alcohol and drive while intoxicated. Relying on State v. Gardner, 230 Wis.2d 32, 601 N.W.2d 670 (Ct.App.1999), he contends that after he mistakenly took the Ambien pill, he became incapable of knowing the difference between right and wrong and therefore involuntarily drank and drove, entitling him to an involuntary intoxication instruction.

WIS. STAT. § 939.42(1) provides that an intoxicated or drugged condition is a defense if it is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed. The appeals court wrote:

“The involuntary intoxication standard, rather than being congruent with the lack of specific intent standard for voluntary intoxication, is coextensive with the mental responsibility test set forth in [WIS. STAT.] § 971.15(1).” Gardner, 230 Wis.2d at 38.FN8 The effects of a prescription medication can form the basis for an involuntary intoxication defense. Id. at 40. However, the involuntary intoxication defense is limited to (1) the defendant's unawareness of what the intoxicating substance is, (2) force or duress, or (3) medically prescribed drugs taken accord ing to prescription. Id. at 41–42. This does not include patients who knowingly take more than the prescribed dosage or mix a prescription medicine with alcohol or other controlled substances, or who voluntarily undertake an activity incompatible with the drug's side effects, like driving after taking a sleeping pill."
Struggling with the issue of whether to allow for the defense in this case, the appeals court wrote:

Under Gardner, a defendant who knowingly mixes a prescription sleeping pill with alcohol is not entitled to an involuntary intoxication defense. Id. Moreover, even though Gardner held that the effects of a prescription medication could give rise to an involuntary intoxication defense, that case did not involve a charge of operating a motor vehicle while intoxicated or with a prohibited BAC. See id. at 35. This court has found no case law applying the involuntary intoxication defense to an operating while intoxicated charge. We recognize that Alswager is arguing that he is entitled to raise an involuntary intoxication defense because, unlike a defendant who knowingly mixes a prescription sleeping pill and alcohol, he did not know he was ingesting Ambien."

Ultimately, the appellate court denied the appeal and skirted the issue as to whether involuntary intoxication would in fact apply to the case:

"[E]ven assuming that an involuntary intoxication defense could apply to the charges of operating a motor vehicle while intoxicated or with a prohibited BAC, as contended by the State, the post-trial evidence proffered here was insufficient to entitle Alswager to a new trial based on newly discovered evidence. Lantz opined only that ingesting one Ambien tablet “could” render Alswager incapable of knowing the difference between right and wrong. While he also opined about potential extreme side effects from Ambien like sleep driving and the unknowing consumption of liquids, nothing in the affidavit of Lantz provided a basis to conclude that Alswager, in fact, experienced such side effects and consumed alcohol and drove without knowing the difference between right and wrong. Because any conclusion that Alswager suffered effects that rendered him incapable of distinguishing between right and wrong would be purely speculative, the new evidence that Alswager ingested one Ambien pill on the day of his arrest was irrelevant and immaterial to the issues in this case. The post-trial lab results and affidavit of Lantz provide no basis to conclude that there is a reasonable probability of a different result at a new trial."


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