RESOURCE CENTER REPORT

Number 98-2
December 1998

YEAR END SUMMARY

Nina J. Emerson, Director
Maureen Boyle, Assistant Director

Change in Counting Prior OWI Offenseseffective January 1, 1999

1997 Wisconsin Act 237 will change the wayprior OWI, PAC, or implied consent convictions* are counted under Wis. Stat. 343.307(1).Specifically, the act increases the time period in which a prior conviction is counted fora second offense from five to ten years. On January 1, 1999, a driver who has more thanone prior conviction within a ten-year period will have a permanent record of allconvictions for the purposes of counting under Wis. Stat. 343.307(1). Therefore, a driverwho has one prior conviction resulting from a violation of OWI, PAC, or the impliedconsent laws on or after January 1, 1989, whether committed in or outside ofWisconsin, should be charged with second offense OWI or PAC, or both. A driver with morethan one such conviction on January 1, 1999, should be charged with the appropriateoffense based on the number of prior convictions appearing on the person's driving record,excluding violations committed prior to January 1, 1989.

For example, Joe Public is arrested forOWI on January 3, 2009. Upon checking his record, you find that he has one prior OWIconviction for an offense committed on January 4, 1999. Mr. Public would be charged withOWI second offense because he has one prior conviction within ten years. If you find morethan one prior OWI conviction, you need not worry about a specific time period; simply addup all convictions which appear on the driver record for offenses committed afterJanuary 1, 1989, regardless of whether they occurred within 10 years of the presentviolation date. (See Figure 1.)

*PLEASE NOTE that when referring to thetime period for counting prior convictions, it is not enough that the conviction occurredon or after the applicable date. The violation date of the offense which resultedin the conviction must also have occurred on or after the applicable date. This has notchanged.

Date of Current Violation    PreviousViolation Date(s)             Offense Type         Reason

Wisconsin Switching to New Breath AlcoholTesting Instruments

The Chemical Test Section of the WisconsinState Patrol has announced that it has evaluated, approved, and purchased new evidentialbreath alcohol analyzers by competitive bid. Sue Hackworthy, Chief of the Chemical TestSection of the Wisconsin State Patrol, reports that the Intoximeter EC/IR utilizes twobreath testing technologies, Infrared and Fuel Cell, to provide law enforcement withreproducible and accurate evidential breath alcohol test results. The EC/IR is Ayear2000" compliant and has a streamlined data entry process making the instrument userfriendly.

A training committee within the ChemicalTest Section developed a cross-over training schedule for the approximately 7,000 currentIntoxilyzer operator permit holders, with installation of the new instruments to followtraining. The committee's goal is to have this process completed by December 31, 1999.Therefore, the Chemical Test Section will not offer any Breath Examiner Specialist coursesin 1999.

Cross-over training consists of afour-hour time commitment, inclusive of classroom and travel time. Each operator will berequired to pass a short written examination. Those operators who fail this examinationwill be required to attend an EC/IR Breath Examiner Specialist course when these coursesare offered in the year 2000. Make-up sessions for those unable to attend training will beplanned on a regional basis as needed. Operators must successfully complete cross-overtraining before being authorized to use the EC/IR.

For more information regarding theIntoximeter EC/IR and/or training, contact the Chemical Test Section of the WisconsinState Patrol.

Penalty Increase for OWI 5^thand Subsequent Offenses Effective January 1, 1999

1997 Wisconsin Act 237 also increases themaximum prison term for a 5^th or subsequent OWI conviction from one year tofive years. (See subsec. 346.65(2)(e).) The increase makes a 5^th orsubsequent OWI conviction a felony which requires a preliminary hearing. (See sec.971.02.) The penalty is still doubled under subsec. 346.65(2)(f) where there is a minorunder the age of 16 years in the car at the time of the violation. The act makes noprovisions for probation; therefore, the court must either sentence the defendant to oneyear or less in jail or to a longer term in prison. The penalty increase applies tooffenses committed on or after January 1, 1999. When counting prior convictions, onlythose convictions resulting from violations occurring on or after January 1, 1989, may becounted.

Resource Center Working on The Web

In an effort to get up-to-date informationout to the people who use the Resource Center, we are expanding the Center's web page onthe UW Law School website. Our goal is to provide access to current and back issues of theResource Center Report as well as important changes in legislation and case law. We arealso working on a format within our web page for persons interested in traffic andimpaired driving issues to share ideas with each other. Finally, we have future plans toprovide links to other useful organizations, such as the National Traffic Law Center andthe Wisconsin Department of Transportation.

You can visit our site at www.law.wisc.edu/rcid/.

NOTE: In our last issue of theResource Center Report, we reported that as of August 1, 1998, operating after revocation(OAR) and operating while suspended (OWS) offenses would no longer be classified as majortraffic violations for purposes of determining habitual traffic offender (HTO) status. AllOAR/OWS offenses now carry three (3) demerit points instead of six (6) demerit points.This point reduction applies to prior convictions for OAR or OWS and has resulted in anumber of individuals becoming eligible for reinstatement as they are no longer consideredhabitual traffic offenders. However, not all persons who are recalculated will lose theirHTO status. Drivers who have become eligible to reinstate usually have had no otherserious traffic offenses and their underlying OWS or OAR convictions were the result of aninitial suspension for failing to pay a fine.

1997 Wisconsin Act 84 represents thelegislature's comprehensive overhaul of Wisconsin's license revocation and suspensionsystem. The impetus for these legislative changes came from the 1995 Governor's Task Forceon OAR/OWI. This group consisted of representatives from law enforcement, prosecution, thejudiciary, and private bar as well as the Wisconsin Department of Transportation andcitizen groups involved in the traffic and impaired driving arena.

Under the current system, law enforcementofficers, attorneys, and judges have struggled to determine whether an OAR or OWS offenseshould be prosecuted in municipal court as a civil offense or circuit court as a criminaloffense. Many have created charts or diagrams to assist in the sometimes complicated andconfusing decision-making process. However, drivers with similar records have continued tobe treated differently across the state.

In an effort to rectify this problem aswell as to save time and money, the legislature adopted a system which requires that onlyone question be asked before charging; namely, Is the driver's operating privilegesuspended or revoked? If the answer is suspended, the offense is civil. If the answer isrevoked, the offense is criminal. This is true even in cases of first offense OAR.

Please note, however, that these changesdo not take effect until May 1, 2000 (or an earlier date in 2000 if the DOT's system hasbeen adjusted for the change). In addition, Wisconsin Act 84 provides an initialtransition period to prevent circuit courts and district attorney offices from beingflooded with criminal OAR charges.

In conjunction with this streamlinedsystem for OAR/OWS, the act provides for changes in penalties for other traffic offenses.One of the purposes of the new law was to criminally punish those drivers with bad drivingrecords and to decriminalize those drivers suspended or revoked due to failure to payfines (FPF). Therefore, the legislation provides for revocation as a penalty for serioustraffic offenses and suspension for FPF. For example, a first offense OWI will result in arevocation and not a suspension.

The penalty for the civil offense of OWSincludes a forfeiture of $50 to $200 and court ordered license suspension for up to 6months. However, the act also requires a six-month license revocation in the event adriver accumulates four or more convictions for OWS within a five-year period. Therefore,even those drivers who initially receive civil penalties will face criminal prosecution ifthey continue to drive without a valid license.

In addition, the act eliminates mandatoryminimum penalties for OAR. The penalty for an OAR conviction includes a fine of up to$2,500 and imprisonment up to 1 year, regardless of the number of convictions. Ifthe person is HTO, the fine could be increased by $5,000 and the imprisonment could beincreased up to 6 months. During the transition period, however, an OAR first offense willresult in a forfeiture of up to $600. Sentencing courts will also be statutorily requiredto consider both aggravating and mitigating factors, including the number of priorconvictions. It is anticipated that guidelines similar to those developed for operatingwhile intoxicated will be created to assist courts in maintaining consistency, yet stillallowing for flexibility.

Look for more information and updatesregarding this comprehensive change in future issues of the Resource Center Report orvisit our web page at www.law.wisc.edu/rcid/.

RECENT CASE SUMMARIES

Wisconsin Court of Appeals AddressesIngestion of Drugs as Possession Issue

In State v. Griffin, 220 Wis. 2d371, 584 N.W.2d 127 (Ct. App. 1998), petition for review denied, the court ofappeals held that a person may not be convicted of possession of a controlled substancewhen the only evidence is the presence of drugs in the person's blood or urine. During asearch of the defendant's apartment, officers found three blunts containing marijuana, anunexplained large quantity of cash and money orders, and drug paraphernalia. However, nococaine was found. A urine sample from Griffin tested positive for cocaine, cocainemetabolites, and THC, while his blood sample tested positive for THC metabolite. Inaddition, Griffin's clothing smelled of marijuana and he had left the apartment only ahalf hour before he was arrested. Griffin was charged with possession of marijuana andcocaine.

The court of appeals affirmed themarijuana possession conviction, stating that the presence of THC in Griffin's blood andurine, when considered along with the marijuana found in the apartment and the smell ofmarijuana on his clothes, was sufficient. However, with regard to the cocaine possessionconviction, the court did not find the corroborating evidence the state presented to besufficient to show that Griffin knowingly possessed cocaine at the time and placecharged.

Prior to this decision, no Wisconsin courthad addressed the issue of whether the presence of drugs in one's urine or blood stream issufficient to support a possession conviction. In reaching its decision, the court in Griffinwas persuaded by the majority of states that have adopted a similar rule.

Court of Appeals Rules on Trial Court'sRefusal to Strike Jurors for Cause

In State v. Kiernan, 221 Wis. 2d126, 584 N.W.2d 203 (Ct. App. 1998), the court of appeals held that when jurors havepreviously rejected a criminal defendant's proffered theory of defense and have indicatedduring voir dire that they will reject that theory of defense again, the defendant hasbeen denied a fair and impartial tribunal.

Kiernan was charged with operating whileintoxicated (OWI), third offense. The trial court refused to strike five jurors who hadserved on a jury two days earlier in a first offense OWI case before the same judge anddefended by the same attorney. In the earlier case, the five jurors rejected the identicalresidual mouth alcohol defense that Kiernan was planning to use at her trial. During juryselection, four of the five jurors indicated that they would vote guilty on the prohibitedalcohol concentration (PAC) charge unless the defense could prove that the Intoxilyzeroperator was unqualified or that the machine malfunctioned. The trial court refused tostrike the jurors for cause, forcing counsel to use peremptory challenges to strike fourof the five jurors.

The court of appeals stated that becausethe veteran jurors indicated they would find the Intoxilyzer to be accurate unless thedefense proved that it was operated by a noncertified technician or that the machinefailed its diagnostic tests, the jurors were biased against the theory that residual mouthalcohol could cause an artificially high reading. If a juror is biased, he or she shouldbe struck for cause. (See Wis. Stat. 805.08(1).) The trial court erred when it failed tohonor Kiernan's motion to strike the five veteran jurors for cause. Being forced to useher peremptory challenges to remove four of the five veteran jurors deprived her of theright to exercise her statutory complement of peremptory challenges. The court concludedthat because Kiernan used her peremptory challenges to correct the trial court's error,her conviction should be reversed. The Wisconsin Supreme Court granted review of thisdecision on December 8, 1998.

Probable Cause to Arrest Required BeforePreliminary Breath Test

The court of appeals recently heldin County of Jefferson v. Renz, 1998 WL 751239, that Wisconsin statutes require anofficer to have probable cause to arrest before administering a preliminary breathtest (PBT).

A police officer stopped Renz incident toan ordinance violation for an excessively loud muffler. When the officer made contact withRenz, he detected a strong odor of intoxicants coming from the vehicle. After running alicense check and returning to speak with Renz, the officer again noticed a strong odor ofintoxicants. The officer did not observe Renz's speech to be slurred. The officer askedRenz to step out of his car and asked if he had been drinking. Renz said he was abartender and had consumed three beers earlier that evening.

The officer administered five differentfield sobriety tests prior to administering the PBT. Renz recited the alphabet correctly.During the one leg stand test, he lost his balance on the count of 18, put his foot down,then started the test again at the number 10, and continued to 30. While performing thewalk and turn test, he lost his balance and swayed. During the finger to nose test, hetouched the upper bridge of his nose. The officer administered the horizontal gazenystagmus (HGN) test, however, neither the trial court nor the appellate court consideredthis test in determining whether probable cause existed.* After the field sobriety tests,the officer asked Renz to submit to a PBT. The result of that test was .18. The officerthen placed Renz under arrest.

The court held that the officer did nothave probable cause to arrest Renz prior to requesting that he submit to a PBT, and,therefore, the officer did not have the requisite probable cause to request a PBT. Thecourt concluded that the defendant's unsteadiness was minimal; that Renz was not drivingerratically; that Renz's speech was not slurred; that his eyes were not glassy, that Renzwas not unsteady when walking or standing apart from the field sobriety tests, and thatRenz performed the alphabet test correctly.

Further, the court held that thelegislature intended that an officer have probable cause to arrest before requesting aPBT. The court reasoned that the legislature had considered and rejected the lesserstandards of reason to believe, and reasonable suspicion for probable cause to believe inthe PBT statute. The fact that the legislature did not adopt reason to believe orreasonable suspicion language (see Wis. Stat. 343.303) is a persuasive indicator that itintended to adopt the probable cause standard as defined by case law.

The court recognized that requiringprobable cause to arrest before requesting a PBT would undercut its use in establishingprobable cause to arrest. However, the court suggested that even if an officer hassufficient probable cause to arrest, the officer may decide to request a PBT anyway, andthen use the results to decide whether to actually make an arrest. In that circumstance,the court opined, if the suspect refuses to submit to a PBT, that fact may be consideredas evidence of consciousness of guilt for the purpose of establishing probable cause toarrest at a subsequent motion to suppress or at a refusal hearing.

The Wisconsin Supreme Court granted reviewof this decision on 12-17-98.

*The court of appeals concluded that thetrial court struck the officer's testimony regarding HGN. Therefore, the appellate courtdid not consider the results of that test in determining whether there was probable causeto request a PBT.

Wisconsin Court of Appeals Rules on AOdorof Marijuana as Probable Cause Issue

In State v. Secrist, 218 Wis. 2d508, 582 N.W.2d 37 (Ct. App. 1998) (Oral arguments heard by the Wisconsin Supreme Courton 10/08/98), the court of appeals held that the odor of marijuana coming from thepassenger compartment of a car is not enough to establish probable cause to arrest thesole occupant of the vehicle for possession of marijuana. The court reasoned that the odorfrom the vehicle alone does not give an officer reasonable grounds to conclude that thesole occupant of the vehicle is the person who smoked the marijuana.

An officer of the New Berlin PoliceDepartment was directing traffic at the local Fourth of July parade. Secrist, alone in hiscar, drove up to the officer and asked for directions. The officer detected the odor ofmarijuana coming from the vehicle. He told Secrist to pull over and subsequently arrestedhim for possession of marijuana. A search of the car revealed a marijuana cigarette and aroach clip.

The court reversed Secrist's conviction onthe basis that the evidence relied upon for the conviction was Athe fruit of a searchsubsequent to an unlawful arrest.  In ruling that the arrest was unlawful for lack ofprobable cause, the court noted that odors linger, especially in automobiles, and whilethe smell of marijuana gave the officer reason to believe that a crime had been committed,the odor of marijuana alone was not enough to establish that Secrist was the person whosmoked the marijuana. The court cited State v. Mitchell, 167 Wis. 2d 672, 482N.W.2d 364 (1992), a Wisconsin case with similar facts in which an arrest for thepossession of marijuana was upheld. However, in Mitchell, the arresting officer sawsmoke in the passenger compartment and smelled the odor of burning marijuana,indicating that marijuana had been smoked quite recently. Since probable cause was basedon both the visible smoke and its odor, the arrest in Mitchell was valid.

OTHER 1998 CASE HIGHLIGHTS

State v. Busch, 217 Wis. 2d 429, 576N.W.2d 904 (1998).

This case was originally consolidated atthe appellate court level with State v. Baldwin, 212 Wis.2d 245, 569 N.W.2d 37 (Ct.App. 1997). In Baldwin, the court held that the modified version of the Intoxilyzer5000, Series 6400 and the Intoxilyzer 5000, Series 6600 were not entitled to thepresumption of accuracy and automatic admissibility because the modified version and theSeries 6600 had never been evaluated or approved by the chief of the Chemical Test Sectionof the Department of Transportation. On review of Busch's petition, the supreme court heldthat the Intoxilyzer 5000, Series 6400 and Series 6600 were, for all practical purposes,the same machine. Therefore, Busch's breath test results obtained from the Intoxilyzer5000, Series 6600 were entitled to a presumption of accuracy and reliability withoutrequiring expert testimony. (See Wis. Admin. Code TRANS 311.04 (May 1997).)

State v. Gruen, 218 Wis. 2d 582, 582N.W.2d 728 (Ct. App. 1998), petition for review denied.

A Milwaukee police officer came upon avehicle stuck in a snow bank outside his jurisdiction. He stopped the defendant to brieflyquestion him and determine if he was the driver. While waiting for a Wauwatosa policeofficer to respond, he invited defendant to sit in his police van. Defendant was nothandcuffed, was not placed under arrest, and was not locked inside the van. When theWauwatosa officer arrived, he questioned the defendant who was still in the police van.The court concluded that the questioning by the Wauwatosa police officer subsequent to theMilwaukee officer's brief investigation did not convert a valid Terry stop into acustodial interrogation requiring Miranda warnings.

State v. Konrath, 218 Wis. 2d 290, 577N.W.2d 601 (1998).

Defendant raised several constitutionalchallenges to the vehicle seizure action taken pursuant to his conviction for 5^thoffense OWI. The court affirmed the seizure order and held: (1) The seizure statute wasconstitutional as applied to Konrath because in his case, there was a nexus between thevehicle and the OWI which did not give him standing to make a facial overbreadthchallenge; (2) The seizure of Konrath's vehicle was an in rem civil forfeiture which didnot constitute punishment and violate the Fifth Amendment prohibition against multiplepunishments; and (3) Konrath was not denied due process because he was provided withadequate notice and sufficient opportunity to be heard prior to the seizure of hisvehicle.

State v. Lechner, 217 Wis. 2d 927, 584N.W.2d 126 (1998).

The court held that defendant's convictionof second degree reckless homicide was not a lesser-included offense of homicide byintoxicated use of a vehicle to constitute a violation of the double jeopardy clause whereboth charges arose out of a single death. [At the time Lechner was convicted, bothhomicide offenses were Class C felonies and carried the same maximum penalties. However,as of July 4, 1998, the penalty for homicide by intoxicated use of a vehicle was increasedto 40 years, making it a Class B felony.] In addition, defendant's two convictions forrecklessly endangering safety did not violate the double jeopardy clause because each timethe defendant drove across the center line of the highway, passed a different vehicle, andabruptly reentered the traffic lane, he created a separate, unreasonable, and substantialrisk of harm to each driver. Therefore, the court concluded his misconduct was not asingle, ongoing criminal act.

State v. Stankus, 220 Wis. 2d 232, 582N.W.2d 468 (Ct. App. 1998), petition for review denied.

The defendant was stopped for a burned-outheadlight. The officer confirmed that he had a valid driver license and no outstandingwarrants but was suspicious that defendant might have illegal drugs in his possessionbecause the interior of his car was unusually messy. The officer told his chief, who wasriding with him in his squad car, that he wanted to ask defendant for consent to searchhis vehicle. Both officers, who were dressed in uniform but did not have their weaponsdrawn, returned to defendant's vehicle. The officer on the driver side requestedpermission to search while the chief was on the passenger side. The court concluded thatthe presence of the two officers did not in itself create an unduly coercive atmosphere torender defendant's consent to search involuntary.

City of Sun Prairie v. Davis, 217Wis.2d 268, 579 N.W.2d 753 (Ct. App. 1998).

A municipality charged defendant with 1^stoffense OWI and PAC as a civil forfeiture action. The citations stated that the initialcourt appearance was mandatory. However, the defendant chose not to appear. The municipalcourt issued two orders directing the defendant to be present at his scheduled trial.Counsel for defendant objected and contended that the municipal court lacked the authorityto order him to be present at the trial. The court of appeals held that a municipal courthas the inherent authority to order a civil litigant to be present at trial and nothing inthe statutes or the Wisconsin Constitution precludes a court from sanctioning theviolation by entering judgment against the defendant.

MARK YOUR CALENDARFOR THE

A Florida Validation Study of the Standardized Field Sobriety Test Battery
Sargeant T. R. Dioquino, Pinellas County Sheriff's Office

Extended Session on New Drugs and Drug Trends
Ms. Phyllis J. Good, Forensic Chemist, Michigan State Police

Lunch Program on AChanges in Substance Abuse Trends
Mr. William L. White, Chestnut Health Systems

Social Hour and Test Your AC Knowledge on the New Breath Test Instruments

Registration forms will be mailed out inFebruary 1999.  Electronic registration will be available.
(CLE credits will be applied for.)

Any questions, call:

Nina J. Emerson, Director, Resource Center on Impaired Driving (800) 862-1048
Carol Karsten, Alcohol Program Manager, Bureau of Transportation Safety (608) 266-0550