Resource Center on Impaired Driving

DOCKET NUMBER
03-3149-CR

 ISSUE AND SUMMARY

Prior convictions, OWI penalty enhancement

Holding: 

An Illinois court’s placement of an OWI offender under court supervision is a conviction that counts as a prior offense when charging an OWI suspect in Wisconsin, even though such a sentence is not termed a “conviction” under Illinois law.

Background: 

List was arrested for OWI in Dane County. He had previously been sentenced to 18 months’ court supervision in Illinois for an OWI offense there. Consequently, the Dane County DA charged List with second-offense OWI and second-offense PAC. List moved to dismiss the second-offense charges, asserting that the Illinois violation did not count as a first offense. The court denied List’s motion and convicted him at a bench trial. List appealed.

Arguments and Rationale:

Under Wis. Stat. § 343.307(1), in determining the penalty for an OWI offense, the court shall count “. . . (d) convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated . . .”

List asserted that the phrase, “convictions under the law of another jurisdiction” means that to be counted as a prior offense, an OWI violation in another state has to be termed a “conviction” under the law that state; his sentence to court supervision was not termed a “conviction” under Illinois law.

The court disagreed with List’s interpretation of § 343.307(1)(d), stating that the phrase “under the law of another jurisdiction” does not delimit the word “convictions,” but rather sets forth the types of offenses that will count as prior convictions: those that violate that jurisdiction’s OWI laws, regardless of whether the outcome is considered a “conviction” in that state. 

DOCKET NUMBER
03-2968-CR

 ISSUE AND SUMMARY

Suppression of evidence; illegal stop; submission to show of authority

Holding: 

If an officer attempted to stop a citizen without reasonable suspicion, and the citizen did not submit to the officer’s show of authority and was not brought under physical control, the citizen will not be heard to argue for suppression of evidence as a remedy for the illegal stop.

Background: 

Young was sitting in a parked car with four people when a police officer attempted to stop them. Young exited the car, and the officer ordered him to get back into the car, but Young ran away. The officer pursued and caught Young. During the ensuing struggle, Young threw his coat. After handcuffing Young, the officer searched the coat and discovered marijuana in the pocket.

The State charged Young with possession of THC, among other offenses. Young moved to suppress the marijuana on the grounds that the officer did not have reasonable suspicion for the initial stop. He claimed that because the stop was illegal, all evidence subsequently obtained should have been suppressed.

The trial court denied the motion, and a jury found Young guilty. He appeals from the judgment of conviction, arguing that the trial court erroneously denied his motion to suppress.

Court’s response: 

Under California v. Hodari D., 499 U.S. 621 (1991), a suspect is seized only when an officer makes a show of authority and the suspect yields or is captured. A suspect fleeing an officer is not seized. Therefore, even if the officer lacks reasonable suspicion to stop the suspect, evidence obtained during the pursuit will not be excluded. The court concluded that Young was not seized when he discarded his jacket because he had not yielded to the officer’s show of authority, so he could not be rewarded with suppression as a remedy for the supposed illegal stop.

DOCKET NUMBER
03-3089-CR

 ISSUE AND SUMMARY

Court declines to find that Bohling overrules Seibel; result and use of PBT refusal 

Holding:  (1) If police have probable cause for arrest for an actual crime, the officer’s mistake in arresting a suspect for a nonexistent crime is irrelevant. (2) Warrantless non-consensual blood draw is legal incident to arrest for non-OWI offense, if there is reasonable suspicion that suspect’s blood contains evidence of a crime. (3) A suspect’s refusal to take a PBT is relevant in determining reasonable suspicion for blood draw, even when there was no probable cause to request the PBT.

Background: D is charged with, among other offenses, homicide by intoxicated use of a vehicle, arising out of a head-on collision. There was no probable cause for arrest on drunk-driving related violation. The investigating officer requested D to take a PBT; D refused. Officer arrested D for “causing great bodily harm by reckless driving.” A warrantless, nonconsensual blood draw revealed D’s BAC as .051%. D moved to suppress the result arguing that: (1) “Causing great bodily harm by reckless driving” is not a real crime, so D’s arrest was illegal. (2) As incident to arrest for a non-drunk-driving offense, the blood draw was illegal under State v. Bohling. (3) Refusal to take a PBT was not relevant in determining reasonable suspicion for a blood draw.

Court’s response: (1) An officer’s subjective intent for an arrest is irrelevant if there is probable cause for arrest on an actual crime. Here, there was probable cause for arrest for reckless driving, so the arrest was legal. (2) State v. Siebel approved warrantless blood draws following arrest for a non-OWI offense when police have reasonable suspicion that a suspect’s blood contains evidence of a crime. Here, alcohol in D’s blood would have been evidence of reckless driving, so if there was reasonable suspicion that D’s blood contained alcohol, the blood draw would have been legal. (3) While a PBT result is not admissible absent probable cause to request a suspect to take the PBT, a refusal can be indicative of consciousness of guilt and may therefore be considered in determining reasonable suspicion for a blood draw. Here, D’s manner of driving, combined with his refusal to take the PBT, gave rise to reasonable suspicion.

CASE NAME

DATE

DOCKET NO.

ISSUE AND SUMMARY

State v. Schmidt
2004 WI App 235, 277 Wis. 2d 561, 691 N.W.2d 379

Right to additional blood, breath, or urine test; timing of request

Holding:  An OWI suspect’s right to request an additional BAC test under Wis. Stat. § 343.305(5)(a) does not depend on whether the request is made before or after submitting to the first test; but a request for a substitute test will not be deemed a valid request for an additional test under the statute.

Overview:  On April 10, 2004, D was arrested on suspicion of OWI. He cooperated with the blood test but first stated would rather take a breath test. No breath test was given.

D moved to suppress the blood test. Wis. Stat. § 343.305(5)(a) allows a person who submits to a BAC test to request and receive an additional test. D therefore claimed he should have received a breath test in addition to the blood test.

The circuit court denied D’s motion to suppress because it read § 343.305(5)(a) to require that an OWI suspect must request an additional BAC test after taking the first test. D appealed the denial.

Because it found the language of § 345.305(5)(a) ambiguous on the issue, the court looked to purpose of § 345.05(5)(a) – to give the accused an opportunity to verify or challenge the first test result. Accordingly, the court concluded that § 343.305(5)(a) does not impose a requirement that an OWI suspect request an additional test only after submitting to the first.

However, the court affirmed the circuit court’s denial of D’s motion to suppress. It deferred to the circuit court’s finding that D did not request a breath test in addition to the blood test; he requested to substitute a breath test for a blood test. Because D requested a substitute test rather than an additional one, the officer was not required to give him an additional test.

State v. Sherry
2004 WI App 207, 277 Wis. 2d 194, 690 N.W.2d 435

Anonymous Tips, Reasonable Suspicion, and Probable Cause

Holding:  When police corroborate details of an anonymous tip, particularly details involving predicted behavior, the anonymous tip is deemed reliable even if the police corroborate only innocent details.  Here, officer had reasonable suspicion to stop D's car and probable cause to search it, based on a tip that provided predictive information.

Overview:  Tipster reported that D would transport marijuana in D's car.  Tipster gave predictive and identifying information about D and her activities.  Officer stopped the car after verifying tipster's information: license plate number, direction of travel, and number and characteristics of occupants.  During the stop, officer corroborated additional details of the tip: identities of the occupants, and ownership of the car.  Officer searched the car without consent, based on the tip, and found marijuana.

Court held that anonymous tip supplied reasonable suspicion to stop the car; reliability of tip was based on its inclusion of predictive information that the officer corroborated.  Court found that the totality of the circumstances gave rise to probable cause to search the car.  The totality of the circumstances includes the veracity and basis of knowledge of the tipster, but veracity and basis of knowledge are not rigorous tests; they are only part of the totality of the circumstances.  This tipster's veracity and basis of knowledge were evident in the predictive information the tipster provided.

State v. Stenzel
2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20

Sentencing Factors and Discretion

Holding:  A sentencing court is not required to consider a defendant’s advanced age as a mitigating factor.  Here, an 8-year term of initial confinement for a 78-year-old man convicted of homicide by intoxicated use of a vehicle was not unduly harsh and unconscionable. 

Overview:  On January 25, 2002, 77-year-old Stenzel consumed two alcoholic drinks before driving.  His vehicle crossed the median and struck a car, killing two children and injuring their mother.  Stenzel entered no contest pleas to two counts of homicide by intoxicated use of a vehicle, and one count of causing injury by intoxicated use of a vehicle.  The court imposed a sentence of 8 years of confinement, 6 years ES.  

Stenzel moved for resentencing because 8 years of confinement was a virtual life sentence for a 78-year-old.  He argued that the court placed too much emphasis on the seriousness of the offense, and that the sentence was unduly harsh and unconscionable, and constituted cruel and unusual punishment.  The circuit court denied Stenzel’s motion and on appeal he raised the same arguments.  The court of appeals found that the circuit court was within its discretion when it based Stenzel's sentence on the gravity of the offense and the need to send a message to the public.  In sending that message, the circuit court appropriately considered the deterrent effect of the sentence. 

Scope of consent to search

Holding:  When D consented to a search of his home for a weapon, as long as he was present, the scope of that consent was not violated when an officer asked D’s three-year-old son whether there were any guns in the home, which led to the discovery of a hidden weapon. The officer had a lawful right of access to the gun because he was legally inside the residence, and the child’s actions put the gun into the officer’s plain view.

Overview:  Police received a report that D had pointed a gun at his neighbor and threatened to shoot. Police went to D’s home and D consented a search for the weapon as long as he was present. D left the officer in the living room with D’s son without restricting any conversation. The officer asked the boy if there were any guns in the house; he did not ask the boy to get the gun or show him where the gun was. Rather, the boy acted on his own volition, pulling open a heating vent, which resulted in the gun being brought into plain view. The officer retrieved the gun, and D was arrested and charged.

D contends that the questioning of his son out of D’s presence constituted an invalid search. The court disagrees because D consented to police entry and search of his residence, and the questioning of D’s son did not violate the scope of that consent. One who consents to a search may limit as he chooses the scope of the search to which he consents. However, because D did not make any attempt to prevent the officer from speaking with his son and did not take the boy with him into the other room, the court found that D did not assert any reasonable expectation of prohibiting the officer from speaking with his son.  

Exigent circumstances for warrantless home entry; officer's subjective belief

Holding:  Whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test; namely, whether a reasonable police officer under the circumstances would believe that the delay in obtaining a warrant would gravely endanger life.  A court may consider the subjective belief of the officer involved, but only insofar as such evidence assists the court in determining objective reasonableness.  Here, the circumstances indicated that D was elderly and highly intoxicated. This would lead a reasonable officer to be concerned about D’s welfare when he did not exit the car upon parking it in his garage.

Overview:  Police received a report that D was driving while intoxicated. An officer arrived at D’s house after D drove into his garage; the officer observed that D was still in the driver’s seat. Because most people exit their vehicle after pulling into the garage, the officer was concerned for D’s welfare when he did not do so, given the report that he was an elderly man and very intoxicated. The officer entered the garage to ascertain D’s welfare, perceived that D was intoxicated, and arrested him. The entry into the garage was justified both to ascertain the welfare of D and to prevent D from causing harm to others by driving his car again. The court indicated that D was not in fact elderly, but credited the report that he was as one justification for the officer’s concern; extreme intoxication can be especially dangerous for the elderly. Thus, when D did not leave his car after parking it, the officer was justified in being concerned for his welfare.

Reliability of citizen informant

Holding:  The inherent reliability of a citizen informant is more important than whether the informant had a history of providing reliable information to law enforcement.  Where a tip has a high degree of reliability because the informant identified himself, and the officer independently verifies the information before conducting a stop, the resulting stop is supported by reasonable suspicion.

Overview:  D challenges the investigatory stop that led to his arrest on a fifth offense operating while intoxicated charge (OWI).

An officer was dispatched to a drug store when a clerk reported that D was intoxicated and about to drive.  The officer independently verified that D seemed intoxicated; the officer stopped D when D drove the truck on a public street.

D argues that (1) there was no showing the clerk's tip was reliable since the clerk was not known to provide reliable information in the past, (2) the basis of the clerk’s knowledge was weak or nonexistent because the clerk did not see D drive his truck or violate the law, and (3) there was no information regarding why the clerk thought D was intoxicated.

The court held that (1) citizens who purport to have witnessed a crime are viewed as reliable, and police are allowed to act accordingly, even though other indicia of reliability have not yet been established, (2) it was not essential for the clerk to see D operate his truck in an erratic manner because improper driving is not an element of an OWI offense, and (3) in Wisconsin, a layperson can give an opinion that he or she believes another person is intoxicated.

State v. Miller
2004 WI App 117, 274 Wis. 2d 471, 683 N.W.2d 485

Admissibility of evidence; expert testimony; equal protection

Holding:  When expert testimony is excluded in an OWI case as a result of the State’s failure to timely provide the expert’s reports or summaries to Defendant, the expert is not permanently barred from testifying about the Defendant's BAC; the State may dismiss the charges and then refile them, and the testimony will be admissible in the second proceeding, providing the testimony is otherwise admissible and the State abides by discovery rules in the second proceeding.

Overview:  After being charged with OWI, Defendant filed a discovery demand for expert witness reports or summaries.   The defense received a summary of the expert’s testimony on Defendant’s BAC 5½ months later, just before jury selection.  The expert’s testimony was excluded as a sanction for the State’s not having provided the summary within a reasonable time before trial.  The State then moved to dismiss the case without prejudice, and the court granted that motion.  The State subsequently refiled the charges, and Defendant moved to exclude the expert’s testimony at the second trial.  That motion was denied, and Defendant was convicted by a jury.  On appeal, Defendant claimed the trial court in the second proceeding erred in denying his motion to exclude the expert’s testimony.  The court of appeals concluded that the trial court in the second proceeding was not required to exclude the expert’s testimony because the language of the discovery statute does not suggest such a requirement.  Defendant’s right to equal protection was not violated because the State’s ability to avoid the sanction by dismissing the case and refiling it is balanced by the Defendant’s protection against double jeopardy and the guarantees of due process and speedy trial.

State v. Reed
2004 WI App 98, 273 Wis. 2d 661, 681 N.W.2d 568

03-1781-CR

Obstructing an officer

Holding:  Making false statements to a police officer investigating a crime goes beyond the good faith desire to defend against an accusation allowed under State v. Espinoza, 250 Wis. 2d 80.  D’s motion to dismiss an obstructing-an-officer charge was therefore properly denied because D knowingly and intentionally made false statements to an officer in order to deceive and mislead the police. 

Overview:  An officer found D in an intoxicated condition, sitting in the driver’s seat of a car parked alongside the highway.  D claimed that a friend, not D, had been driving.  D was arrested and his claim of another driver was found to be false.  D was charged with obstructing an officer, OWI, and driving with a PAC, third offense.  He moved to dismiss the obstructing-an-officer charge; the motion was denied, and D appeals. 

Under Espinoza, a person’s denial of guilt when confronted by a police officer about an alleged crime cannot be a basis for an obstructing-an-officer charge.  Here, if D had merely denied driving while intoxicated, Espinoza would have protected him from an obstruction conviction.  However, D made more than a mere denial of his personal involvement in the crime; he provided the officer with false information relating to the crime, thus frustrating the police function, contrary to Wis. Stat. § 946.41 (2001-2002).  Identifying other people as possible suspects goes beyond the exculpatory denial exception to § 946.41. 

State v. Begicevic
2004 WI App 57, 270 Wis. 2d 676, 678 N.W.2d 293
 

03-1223-CR

Holding:  When dealing with suspected drunk drivers that do not speak English, an officer must make an attempt to find a translator in order to explain a suspects rights prior to submitting to a breath test or blood alcohol test.

Overview:  The defendant appealed a circuit court decision which convicted him of a second offense of operating a vehicle with a prohibited alcohol concentration.  An officer observed the defendant's vehicle stopped in the middle of an intersection and pulled over to investigate.  Upon initial contact with the defendant, the officer immediately noticed a strong odor of intoxicants and that the defendant's eyes were glassy and bloodshot.  The officer asked the defendnat to get out of his car so that she could administer the field sobriety tests.  The defendant asked the officer if she spoke German, but the officer felt she could administer the sobriety tests despite the language barier.  After having difficulty with performing the tests, the officer asked the defendant to submit to a PBT.  While at the station, an officer that spoke broken German attempted to communicate the situation to the defendant and tried to read the Informing the Accused form to the defendant.  Neither officers attempted to obtain an adequate interpreter.  The court of appeals felt that although the window for obtaining a sample from a defendant is a short one, it is unreasonable for the officer not to locate a translator when dealing with an individual that does not speak English.  The court remanded the case to the circuit court where the defendant could pursue an order prohibiting the automatic admissibility of the blood test results.