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State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474
Date: November 9, 2005
Case No: 2005AP690-CR
Issue: Constitutionality
of Per Se Drug Laws at set forth in Wis. Stat. sec.
346.63(1)(am)
Holding: The court of appeals upheld the per
se ban on operating a motor vehicle with a detectable amount of a
restricted controlled substance in one's blood, as set out in Wis.
Stat. 346.63(1)(am).
Summary:
On June 1, 2004, Smet was arrested on suspicion of operating a
motor vehicle while intoxicated. A blood test indicated a
detectable amount of delta-9-THC, the primary active ingredient in
marijuana, and 11-hydroxy-THC and carboxy-THC, two metabolites of
THC. Smet was charged with operating a motor vehicle with a
detectable amount of a restricted controlled substance in his
blood, contrary to Wis. Stat. § 346.63(1)(am).
Smet moved to dismiss the complaint on the
grounds that Wis. Stat. 346.63(1)(am) is unconstitutional because
it exceeds the legislature's police power and violates his rights
to due process, fundamental fairness, and equal protection. The
trial court rejected his arguments, and Smet was ultimately found
guilty. He appeals from the resulting judgment of conviction.
Smet argues that because Wis. Stat.
346.63(1)(am) requires only proof of "a detectable
amount" of a banned substance rather than actual proof of
impairment, it is an unconstitutional overstep by the Wisconsin
Legislature in the exercise of its police power. Therefore, he
submits that prosecution under that statute violates his rights to
due process and fundamental fairness.
The court of appeals upheld the trial court's ruling, explaining that regulating the safety of Wisconsin roadways is a proper exercise of the police power, and that 346.63(1)(am) bears a reasonable and rational relationship to that goal and is not fundamentally unfair; therefore, there was no due process violation. The court also held that 346.63(1)(am) does not offend principles of equal protection because Smet did not establish that the statute either interfered with a fundamental right or operated to the peculiar disadvantage of a suspect class.
Date: June 30, 2005
Case No: 2004AP102-CR
Issue: Request for alternative
chemical test at agency expense under Wis. Stat.
343.305(5)(a)
Holding:
Where police have informed an OWI suspect of his or her right to an
alternative test at agency expense and provided ample opportunity
for the suspect to make the request, if the suspect does not make
the request until after leaving police custody, it is not a request
within the meaning of § 343.305(5)(a), and police need not provide
the alternative test.
Summary:
In January 2003, Fahey was stopped for speeding. After observing
several indicia of intoxication, the officer arrested him for OWI
and read him the "Informing the Accused" form, informing him that
if he would submit to the chemical test requested by the police, he
had the right to take an alternative test provided by the agency
free of charge. Fahey did not request an alternative test while in
police custody, but instead returned and requested an alternative
test 15 minutes after being released. The police refused his
request. Subsequently, Fahey moved to suppress the results of his
breathalyzer test, alleging that the officer failed to comply with
his request for an alternative test. The circuit court denied the
motion, reasoning that Fahey did not make a "request" within the
meaning of the statute.
The implied consent statutes do not define a "request" for an alternative test at agency expense. In interpreting 343.305(5)(a), the court concluded that the legislature did not mean to impose a requirement that police honor all such requests no matter what the circumstances, nor to hold open the time periods for a request beyond when a suspect is released from custody.
The court notes that this holding does not require police to
honor all requests made while a suspect remains in custody.
Neither does the holding prevent suspects from obtaining an
alternative test at their own expense.
State v. Washington, 2005 WI App 123, 284 Wis. 2d 456, 700 N.W.2d
305
Date: May 17, 2005
Case No: 2004AP1957-CR
Issue: Exclusionary Rule
Holding: Although Washington took a few steps backwards after police ordered him to stop, he did not flee; therefore, he was seized. Because the stop was without reasonable suspicion, the evidence obtained thereafter should have been excluded.
Summary:
A citizen complained that people were loitering and selling drugs
at particular house. Two officers investigated. They saw
Washington in front of the house and ordered him to stop. He
stopped, but then took a few steps backward and allegedly seemed
ready to flee. He threw his hands up, and a towel flew out. The
officers subdued him; one retrieved the towel and discovered a
baggie of cocaine wrapped in it.
The State charged Washington with possession with intent to deliver. He moved to suppress, arguing that the officers lacked reasonable suspicion for the stop. The trial court agreed that the officers lacked reasonable suspicion, but it denied the motion, finding that under California v. Hodari D., 499 U.S. 621 (1991), Washington was not seized when he discarded the drugs, because fled - by walking backwards - rather than yielding to the officers' show of authority. Washington pled guilty and later filed a post-conviction motion for reconsideration, which the trial court denied. Washington appealed.
Court's Rationale:
Washington was effectively seized when, in response to the
officers' order, he stopped walking to wherever he was going.
Although he took a few steps backwards, his actions did not
constitute flight. Further, the stop was unreasonable because
while one officer testified that he was going to cite Washington
for loitering, he did not demonstrate a reasonable, articulable
basis for doing so. The court explained, "People, even convicted
felons, have a right to walk down the street without being
subjected to unjustified police stops." P.17.
State v.
Bowers, 2005 WI App 72, 280 Wis. 2d
534, 696 N.W.2d 255
Date: March 9, 2005
Case No: 04-1093-CR
Issue: Breach of plea agreement; prosecutorial sentence recommendations
Holding:
The State did not breach the plea agreement by inadvertently
misstating its sentencing recommendation, when it corrected the
mistake shortly afterward. Further, the State did not breach the
agreement by recommending a consecutive sentence when the agreement
had not addressed whether State would recommend a consecutive or
concurrent sentence.
Summary:
D claimed IAC because counsel failed to object to the State's
alleged breach. Court held that counsel could not be deficient
because State did not breach the agreement. State charged D with
OWI 6th, PAC, and OAR. D pled NC to the OWI, in
exchange for dismissal of the PAC and OAR. State agreed to
recommend 2 years in, 3 years out.
At sentencing, State mistakenly recommended 2.5 years in, 2.5 year out. Counsel did not object. D pointed out State's mistake, and State amended its recommendation to 2 years in, 3 years out. State also recommended that the sentence be consecutive to the sentence D was serving for another case. Court imposed 3 years in, two years out, consecutive.
D moved for resentencing, arguing that the State breached the agreement by making the wrong recommendation and by recommending a consecutive sentence, and that defense counsel's failure to object constituted IAC. The trial court denied the motion, and D appealed.
The Court concluded that the State's
misstatement was not a breach because the misstatement was promptly
corrected and was not an attempt to undercut the substance of the
agreement. Further, the agreement did not specify whether the
State was to recommend consecutive or concurrent sentences, so its
recommendation for a consecutive one was not a breach.
City of West Bend
v. Wilkens, 2005 WI App 36, 278 Wis. 2d 643, 693 N.W.2d
324
Date: January 12, 2005
Case No: 04-1871
Issue: Reliability of
field sobriety tests; admissiblity vs. weight; relevant
evidence
Holding: The trial court properly admitted the results of Wilkens' field sobriety tests (FSTs), because the reliability of such tests would go to the weight of the evidence, not its admissibility.
Summary:
An officer stopped Wilkens for speeding and noticed that he had
red, glassy eyes, smelled of alcohol, and slurred his speech. The
officer asked Wilkens to perform certain FSTs, and Wilkens failed
them. The subsequent PBT and blood draw showed blood alcohol
concentrations of .13 percent and .19 percent, respectively.
At his trial for driving with a PAC, Wilkens moved to suppress the FSTs on the ground that because they are scientific tests, their results could not be admitted because the trial court had not made a finding of reliability. Because the FSTs were unreliable, Wilkens argued, the officer did not have probable cause to request a PBT; therefore, the trial court should have suppressed the PBT and the fruits of the subsequent arrest; namely the result of the blood draw. The trial court denied Wilkens' motion, and he was convicted.
The court held that FSTs are not scientific tests because their usefulness is based on a subjective evaluation of the subject's performance by the administering officer. Further, even if FSTs were scientific evidence, the trial court correctly admitted them without a finding of reliability, because in Wisconsin the reliability of a scientific test goes to its weight, not its admissibility.
In Wisconsin, evidence is generally admissible
if it is relevant; evidence is relevant when it has any tendency to
make the existence of any material fact more or less probable than
it would be without the evidence. In this case, the Wilkens'
failure to successfully complete the FSTs made his intoxication
more probable than it would have been if he had completed the FSTs
successfully, so the FST results were relevant in the probable
cause analysis.
State v. Matke, 2005 WI App 4
Date: Dec. 9, 2004
Case No: 03-2278-CR
Issue: Prior convictions, OWI penalty enhancement
Holding: The number of prior OWI convictions for purposes of penalty enhancement should depend upon the number of prior convictions a defendant has at the time of sentencing, not at the time the offense was committed.
Summary:
The penalty statute for OWI offenses provides that repeat OWI
offenders will receive greater penalties with each subsequent
offense. Matke committed his fourth OWI on June 19, 2001. Before
sentencing, he committed and was convicted for two more OWI's, and
the court sentenced him as a six-time offender for the June 19
offense. Matke appealed, claiming he should have been sentenced as
a four-time offender.
The court looked to the Wisconsin Supreme Court's decision in
State v. Banks, 105 Wis.2d. 32,
313 N.W.2d 67 (1981), for the conclusion that enhanced penalties
apply to OWI convictions regardless of the order in which the
offenses were committed or when the convictions were entered. The
court further explained that while Matke had relied on certain case
law providing that PAC sentence enhancements are contingent upon
prior convictions having been in existence at the time of the
current offense, those cases do not apply to sentencing for OWI
offenses because "[t]he statute under review is § 346.65(23), a
penalty enhancement statute, not Wis. Stat. § 340.01 (46m), which
defines an element of certain PAC offenses."
Matke had also relied on language in State v. Skibinski, 2001 WI App 109, 244 Wis.2d 229, 629 N.W.2d 12, to support his claim. The court responded that in Skibinski it had "regrettably, misstated the law governing the application of [the OWI sentence enhancement statute,] Wis. Stat. § 346.65(2)" to sentences for repeat offenders. The court concluded that while its holding in Skibinski was correct, the language upon which Matke relied was not.