RESOURCECENTER REPORT
Number 00-1
August 2000
University of Wisconsin Law School
Resource Center on Impaired Driving
LEGAL UPDATE
Nina J. Emerson, Director, ninaj@facstaff.wisc.edu
Maureen D. Boyle, Assistant Director, mdboyle@facstaff.wisc.edu
Stephen M. Huxley, Project Assistant, smhuxley@students.wisc.edu
LEGISLATION
1997 Wisconsin Act 84, enacted April 13, 1998:
Wisconsin Act 84 simplifies the operating after revocation (OAR) and operating whilesuspended (OWS) laws. It used to be that figuring out if an OAR or OWS was subject tocivil or criminal penalties was a complicated process. Not anymore. EffectiveAugust 1, 2000, all OWS charges are civil forfeitures. All 1stoffense OARs are civil. And all 2nd and subsequent OARs are criminal. The basisfor the underlying suspension or revocation is no longer an issue. It does not matter. Theonly thing that needs to be determined at the time of the stop is whether the person issuspended or revoked. Period.
Only OAR offenses that occurred within the preceding five-year period can be counted asprior offenses. (These should be counted by violation date, not conviction date.) Inaddition, there is no longer an escalating penalty structure for the subsequent offenses.All OAR offenses will be subject to a fine ranging from $0 - $2,500 and jail from 0 - 1year. The statute requires sentencing guidelines similar to what now exist for OWIoffenses.
OWS will be a strict liability offense. It will not be counted as a prior. However, ifa person gets a 4th OWS conviction within a five-year period, it will result ina revocation. Therefore, OWS will not have a "knowledge" or scienter elementwhile OAR will. Both OAR and OWS convictions will be three point violations but will notbe considered "major" traffic offenses for habitual traffic offender (HTO)status under Wis. Stat. Ch. 351.
The new offenses will be cited as one of four subsections under Wis. Stat. §343.44(1):
(a) Operating While Suspended;
(b) Operating While Revoked;
(c) Operating While Out of Service; and
(d) Operating While Disqualified.
The revised penalties for OWS and OAR convictions make the reason for suspension orrevocation irrelevant in determining whether the offense is civil or criminal. Sentencingnow depends only on whether the offense is OWS (civil) or OAR (criminal), and if OAR,whether the offender has had any other OAR violations in the past five years.
Act 84 also imposes revocation only for alcohol-related offenses (e.g., OWIand refusal) and serious traffic violations, such as hit and run, eluding police, andrepeated OWS. Conviction of all other offenses will result in a license suspension, whichthe act reduces from 5 years to 2 years.
Finally, there is no longer a "VOO" violation. People who are stopped and arefound to be in violation of an occupational license will either be OWS or OAR, dependingon the status of their operating privilege. You cannot cite a person under Wis. Stat. §343.10(8).
If you have any questions, e-mail cnr.dmv@dot.state.wi.us.
1999 Wisconsin Act 109, enacted May 3, 2000:
This act reflects the work of both the State Senate and the State Assembly to passsignificant legislation targeting drunk driving. Senate Bill 125, also referred to as the"Omnibus OWI Bill," contains numerous provisions; namely, it increases thepenalties for underage alcohol offenses; allows courts to order ignition interlock devices(IIDs) on 2nd offense OWI; requires drivers who lack the ability to pay OWIfines to perform community service; lowers the prohibited alcohol concentration to .02 for4th and subsequent OWI offenses (considered "absolute sobriety");increases fines on 3rd and subsequent OWI offenses based on alcoholconcentrations above .17; modifies Huber and work release laws to require assessment andcompliance with a driver safety plan as a condition of release; provides that DOC and DOTconduct a joint study of alternatives to incarceration for repeat OWI offenders, andincreases the driver improvement surcharge from $340 to $345 to create and help fund asafe-rider program.
The majority of Act 109 provisions will go into effect January 1, 2001; with theexception of the comprehensive statewide IID program which will become effective January1, 2002.
Finally, note that the following provisions were effective July 1, 2000:
1997 Wisconsin Act 283, enacted December 31, 1999:
Wisconsin Act 283, also known as the Truth-in-Sentencing Law, created a few changes forOWI-related offenses. Effective for crimes committed on or after December 31, 1999,Wis. Stat. § 973.01(1) now requires a bifurcated sentence that includes a term ofconfinement in prison as well as a period of extended supervision (ES). Under this act,anyone convicted of Wis. Stat. § 940.09, homicide by intoxicated use of a vehicle orfirearm, is guilty of a Class B Felony, which is subject to a maximum of 60 yearsimprisonment, 40 years confinement, and 20 years ES.
1999 Wisconsin Act 66, enacted April 12, 2000:
This act makes legal what most people thought was already legal; namely, to flash yourhighbeams at an oncoming vehicle that has its highbeams on. Specifically, the act"does not prohibit an operator from intermittently flashing the vehicle's high-beamheadlamps at an oncoming vehicle whose high-beam headlamps are lit." Flash away!
You can obtain other legislative bill summaries by visiting the WisconsinLegislature's website: www.legis.state.wi.us./billtext.html
RECENT UNITED STATES SUPREME COURT CASES
Miranda and its Progeny Govern the Admissibility of Statements MadeDuring Custodial Interrogation in Both State and Federal Courts.
In a seven-two decision, the Supreme Court in Dickerson v. United States, 120S.Ct. 2326, 68 U.S.L.W. 4566 (2000), held that Miranda was aconstitutional decision of the Court and as such could not be overruled by an Act ofCongress and would not be overruled by the Court. The decision in Miranda v. Arizona, 384U.S. 436 (1966), held that certain warnings must be given before a suspect's statementmade during custodial interrogation could be used as evidence. Shortly thereafter,Congress enacted 18 U.S.C. § 3501 which established a rule essentially stating that theadmissibility of such statements should turn on their voluntariness. Dickerson's ownstatements made at a FBI field office without the benefit of Miranda warningsbefore interrogation were held admissible by the U.S. Court of Appeals based on a findingof voluntariness under § 3501.
In reversing the court of appeals, the Supreme Court revisited the historical basis forhaving a law governing the admissibility of confessions. From the law's infancy, the Courtrecognized that coerced confessions by their nature were untrustworthy and needed to besubjected to a "voluntariness" test. Eventually, the Court in Mirandareasoned that modern custodial interrogation techniques heightened concern aboutconfessions obtained by coercion. In response, the Court specifically laid down"concrete constitutional guidelines for law enforcement agencies and courts tofollow." These guidelines, now commonly known as the Miranda "warnings,"have become the cornerstone of routine police practice. In fact, the Court concluded thatthe totality-of-the-circumstances test of voluntariness used under § 3501would be moredifficult than Miranda for law enforcement officers to adhere to and for courtsto apply in a consistent manner. However, the Court ultimately relies on the rule of staredecisis to decline overruling Miranda, whether or not they would agree with itsreasoning and resulting rule if they were addressing the issue in the first instance now.
Unprovoked Flight in a High Crime Area is Sufficient to Establish ReasonableSuspicion under Terry.
In Illinois v. Wardlow, 120 S.Ct. 673, 145 L.Ed. 2d 570 (2000), theU.S. Supreme Court found that an individual's unprovoked flight is sufficient under Terryv. Ohio, 392 U.S. 1 (1968), to warrant further investigation by an officer in orderto resolve any ambiguities as to the individual's conduct. In Wardlow, thedefendant fled upon seeing a caravan of police vehicles converge on an area of Chicagoknown for heavy narcotics trafficking. When an officer conducted a pat-down search of thedefendant, a handgun was discovered and the defendant was arrested. The Illinois trialcourt denied his motion to suppress, finding the gun was recovered during a lawful stopand frisk. He was convicted of unlawful use of a weapon by a felon. The state appellatecourt reversed, concluding the officer did not have reasonable suspicion to makethe stop. The Illinois Supreme Court affirmed, determining that sudden flight in a highcrime area does not create a reasonable suspicion justifying a Terry stop becauseflight may simply be an exercise of the right to "go on one's way." Floridav. Royer, 460 U.S. 491 (1983).
The United States Supreme Court held that the officer's actions did not violate the FourthAmendment. While an individual's presence in a "high crime area" is not enough,on its own, to support a reasonable, particularized suspicion of criminal activity, alocation's characteristics are relevant in determining whether the circumstances aresufficiently suspicious to warrant further investigation. Adams v. Williams, 407U. S. 143 (1972). In this case, it was the defendant's unprovoked flight thataroused the officers' suspicion, and thus the officer was justified in suspecting that thedefendant was involved in criminal activity and, therefore, in investigating further.While flight is not necessarily indicative of ongoing criminal activity, Terry recognizedthat officers can detain individuals to resolve ambiguities in their conduct and thusaccepts the risk that officers may stop innocent people.
An Anonymous Tip That a Person is Carrying a Gun is Not, Without More,Sufficient to Justify a Police Officer's Stop and Frisk of That Person.
In Florida v. J.L., 120 S.Ct. 999, 145 L.Ed. 2d 927 (2000),the U.S. Supreme Court held that an anonymous tip that a person is carrying a gun is not,without additional suspicion of illegal conduct, sufficient to justify an officer's stopand frisk of that person. In J.L., an anonymous caller reported to police that ayoung black male standing at a particular bus stop and wearing a plaid shirt was carryinga gun. The officers went to the bus stop and saw three black males, one of whom, thedefendant, was wearing a plaid shirt. Apart from the tip, the officers had no reason tosuspect any of the three of illegal conduct. The officers did not see a firearm or observeany unusual movements. One of the officers frisked the defendant and seized a gun from hispocket. The trial court granted defendant's motion to suppress the gun as the fruit of anunlawful search. The intermediate appellate court reversed, but the Florida Supreme Courtquashed that decision and held the search invalid under the Fourth Amendment.
The United States Supreme Court held that an anonymous tip that a person is carrying a gunis not, without more, sufficient to justify a police officer's stop and frisk of thatperson. Terry allows an officer, for the protection of himself and others, toconduct a carefully limited search for weapons in the outer clothing of persons engaged inunusual conduct where the officer reasonably concludes in light of his or her experiencethat criminal activity may be afoot and that the persons in question may be armed andpresently dangerous. Here, the officers' suspicion that the defendant was carrying aweapon arose not from their own observations but solely from a call made from an unknownlocation by an unknown caller. Thus, the tip lacked sufficient indicia of reliability toprovide reasonable suspicion to make a Terry stop. The fact that the tipaccurately described the defendant's visible attributes is not enough to justify a Terrystop. The reasonable suspicion here at issue requires that a tip be reliable in itsassertion of illegality, not just in its tendency to identify a determinate person.
NOTE: By Mandate dated May 8, 2000, the U.S. Supreme Court vacated thedecision in State v. Roosevelt Williams, 225 Wis. 2d 159 (1999), and remanded thecase for further consideration in light of the Court's decision in Florida v. J.L.
RECENT WISCONSIN CASES:
Wisconsin Supreme Court Holds That Officer's Search, Seizure, and Inspection ofSeized Evidence Are All Consistent with Fourth Amendment.
In State v. McGill, 2000 WI 38, the arresting officer decidedto frisk the defendant for weapons before having him conduct a field sobriety test. Theofficer testified at the suppression hearing that he decided to conduct the frisk basedupon a number of factors, including the fact that the defendant did not stop his vehiclein response to the officer's flashing lights, he appeared unusually nervous, tried to walkaway from the encounter, was "twitchy" and smelled of both drugs andalcohol. The frisk revealed a long, hard object that the officer believed to be aknife. Upon removing it from the defendant's pocket, the officer found it to be along foil package, a wrapping often used for the storage of drugs. The officeropened the foil package to find cocaine and placed the defendant under arrest forpossession of cocaine with intent to deliver. The defendant filed a motion tosuppress the cocaine as the fruits of an illegal search.
The Wisconsin Supreme Court concluded that the officer's frisk of the defendant wasbased upon specific, articulable facts leading the officer to reasonably believe that thedefendant might be armed. The seizure of the object discovered during the frisk was basedupon a reasonable belief that it was a knife. The inspection of the foil-wrapped packageremoved from the defendant's pocket was based upon probable cause that the item containedcontraband. Accordingly, the search, seizure, and inspection of the evidence seized inthis case were reasonable and fully consistent with the Fourth Amendment.
Wisconsin Supreme Court Finds Probable Cause to Arrest Unnecessary BeforeRequesting PBT.
The court in County of Jefferson v. Renz, 222 Wis. 2d 424 (1999),held that the legislature did not intend to require an officer to have probable cause toarrest before requesting a PBT (preliminary breath test). The defendant in Renzwas stopped for a defective exhaust. Defendant smelled of intoxicants and admitted tohaving three beers. The officer then performed six field sobriety tests. Thedefendant was given the horizontal gaze nystagmus (HGN) test and exhibited all six cluesof intoxication. Based on his training, the officer believed that this indicated a bloodalcohol level of at least .10. After administering these tests, the officer asked thedefendant if he would submit to a PBT. The defendant agreed. The PBT indicated his bloodalcohol level was .18. The officer then placed the defendant under arrest for OWI anddriving with a PAC.
The supreme court concluded that the context, history, and purpose of the statute, §343.303, all suggest that "probable cause to believe" refers to a quantum ofproof greater than the reasonable suspicion necessary to justify an investigative stop,and greater than the "reason to believe" that is necessary to request a PBT froma commercial driver but less than the level of proof required to establish probable causefor arrest.
Seizure of a Passenger Pursuant to a Lawful Traffic Stop Held to be ReasonableUnder the Fourth Amendment.
In State v. Griffith, 2000 WI 72, the defendant was apassenger in a vehicle that was pulled over during a traffic stop by officers who believedthe driver had no license. The defendant was convicted for obstructing an officer after hegave a police officer false information regarding his name and date of birth. He wasadditionally convicted of possession of marijuana and escape from custody. His claim isthat because under the Fourth Amendment and Wis. Const. art. 1, §11 the officer lackedlawful authority to ask the defendant his name and date of birth, all of his convictionsmust fail.
The court relied on Brown v. Texas, 443 U.S. 47 (1979) as a guide in theirexamination of whether the police conduct in this case constituted an unreasonableseizure. Brown held that, "the reasonableness of seizures that are lessintrusive than a traditional arrest depends on a balance between the public interest andthe individual's right to personal security free from arbitrary interference by lawofficers." Id. at 50. The court found that on the public side of thebalance, asking the rear passenger for identification furthered several legitimate publicinterests and was reasonably related to the purpose of the stop. On the private side ofthe equation, they stated that the additional interference with the passenger's personalliberty that resulted from the identification questions was minimal.
The Wisconsin Supreme Court held that when a passenger has been seized pursuant to alawful traffic stop, the seizure does not become unreasonable under the Fourth Amendmentor art. 1, §11 simply because an officer asks the passenger for identification during thestop. Passengers are free to decline to answer such questions, and refusal to answer willnot justify prosecution nor give rise to any reasonable suspicion of wrongdoing. However,if a passenger chooses to answer but gives the officer false information, the passengercan be charged with obstructing an officer in violation of Wis. Stat. § 946.41(1).
Warrantless Search of Automobile Passenger's Duffel Bag Held Proper Under theFourth Amendment.
In State v. Pallone, 2000 WI 77, the defendant was thepassenger in a vehicle whose driver had just been arrested for driving with an opencontainer of alcohol. Upon searching the vehicle for more open containers and anypossible weapons, the officer found cocaine within a large duffel bag belonging to thedefendant. The defendant claimed the search was improper and violated his FourthAmendment rights against a warantless search. The Wisconsin Supreme Court held thatthe officer had probable cause to carry out a full search of the truck and its contentsfor additional containers of open beer. When the driver stepped out of the truckholding an open bottle and then told the officer there were more open bottles in thetruck, there was more than a fair probability that the vehicle contained additionalevidence. The officer had probable cause to search the truck cab, and it was reasonablefor him to search the large duffel bag that was situated on the bench in the cab. Thisspacious container had the capacity to hold additional open or closed bottles of beer,evidence that would support the driver's arrest and perhaps lead to an additional charge.
The court concluded that the search of the duffel bag was proper under both the searchincident to arrest exception and the probable-cause-to-search-a-motor-vehicle exception tothe constitutional warrant requirements. The search fulfilled the requirements of thesearch incident to arrest exception because it was incident to a valid arrest, thesituation posed a heightened threat of danger, and there was a need to discover andpreserve evidence. The warrantless search also was permissible because the officer hadprobable cause to believe that the vehicle contained the object of the search, and theduffel bag was a container capable of containing the object of the search.
Common Sense Dictates That it is Sufficient to Use the Term"Attached" to Refer to a Document That Should be "Incorporated byReference" to a Criminal Complaint.
In State v. Smaxwell, 2000 WI App. 112, the court of appealsconcluded that the trial court was "unnecessarily formalistic" in dismissing acriminal complaint because it did not use the legal term of art, "incorporated byreference" to "meld" the incident report into the complaint. The courtreasoned that to hold otherwise was to put form over substance. Finally, the courtconcludes that the officer who signed the criminal complaint under oath, although notpresent at Smaxwell's arrest, could believe the document was reliable and truthful becauseincident reports prepared by the arresting officer had proven to be accurate and reliableon numerous past occasions. Therefore, it was reasonable for the second officer to swearto the reliability of the arresting officer's incident report because the arrestingofficer was a reliable eyewitness. See State v. Knudson, 51 Wis. 2d 270,277 (1971).
A Driver's Unconditional Consent to Search His or Her Vehicle Includes theRight to Search the Belongings of a Passenger Left in the Car.
The defendant in State v. Matejka, No. 99-0070-CR(Ct.App. 1999), was the passenger in a vehicle that was pulled over for failingto display a front license plate. Both occupants consented to a search of the vehicle andto being patted down as they exited the van. While the officer was searching the van, thedefendant became cold and requested her jacket. Before handing over the jackets to all thepassengers, the officer checked the pockets of each coat. After finding marijuana in thedefendant's coat, the officer placed her under arrest. The defendant argues that herFourth Amendment rights were violated because, although she gave her consent for theofficer to conduct a pat down search of her person, she did not consent to a search of herbelongings. Additionally, she argues that the driver of the van did not"possess common authority" over the jacket and, thus, lacked the ability toconsent to a search of the jacket.
The court relies on the recent Supreme Court decision in Wyoming v. Houghton, 119S. Ct. 1297 (1999), in holding that probable cause to search a car includes the right toinspect not only the driver's but also the passengers' belongings found in the car. TheWisconsin Supreme Court interprets this to state that a vehicle's driver can provideconsent to search a vehicle which later leads to the seizure of evidence implicatinganother occupant. Thus, the court concludes that a driver's unconditional consent tosearch his or her vehicle includes the right to search all containers and compartments,including a passenger's belongings, located in the vehicle.
Oral Argument is scheduled for September 6, 2000. Issue on Appeal:Does a driver's consent to a vehicle search following a routine traffic stop justify theconcurrent search of the personal property of a passenger?
Evidentiary Use of PBT Results Requires a Proper Foundation for the Jury.
The court, in State v. Doerr, 229 Wis. 2d 616 (Ct.App. 1999),held that it was error for the trial court to allow the evidentiary use ofdefendant's PBT results without a proper foundation for the jury. In addition todriving while under the influence, the defendant was charged with two counts of battery toa law enforcement officer and one count of resisting an officer. He was also chargedwith refusing to take a chemical test. The defendant first filed a motion seeking toexclude the results of the PBT from being used at trial. Additionally, he argued for theexclusion of any reference to his refusal to take a chemical test. Both motions weredenied, and defendant was found guilty on all three counts.
The court of appeals held that the arresting officer's testimony was insufficient toinform the jury about the device's scientific accuracy, reliability, and compatibilitywith accepted scientific methods. See State v. Baldwin, 212 Wis. 2d 245, 260, 569N.W.2d 37, 43, rev'd on other grounds sub nom. State v. Busch, 217 Wis. 2d 427,576 N.W.2d 904 (1998). However, the error was found to be harmless, in that it didnot contribute to the guilty verdict. Even though defendant's PBT results could haveled the jury to believe that he was intoxicated, the issue of whether the defendant wasintoxicated was not a crucial or controlling feature of the crimes with which defendantwas charged; those of battery to and resisting a police officer.
The defendant also contested the admissibility of his refusal to submit to a chemicaltest. Despite the fact that refusal evidence may be used to demonstrate that adefendant was aware that he or she was intoxicated, see State v. Albright, 98Wis. 2d 663, 668, 298 N.W.2d 196, 200 (Ct. App. 1980), the court determined that it wasnot used in such a manner in this case. Here, the refusal was used to demonstratedefendant's conduct toward police and is directly linked to the criminal events chargedagainst him. Thus, the court held that the evidence was relevant and not undulyprejudicial.
Informed Consent Law Does Not Require Understanding by the Individual Arrestedfor OMVWI.
In State v. Piddington, No. 99-1250-CR (Ct.App. Jan. 27, 2000),the court of appeals held that so long as an arresting officer "orally informs"an OWI arrestee of the correct required information after arrest, the arrestee'sperception and understanding of the information is not necessary. Here, thedefendant was hearing impaired, and after being arrested for OWI, he requested in awritten note to have a blood test rather than a breath test. The trooper thusproceeded to a nearby hospital for the drawing of a blood sample and was met there byanother police officer who had "conversational" abilities in "signlanguage." After the trooper and the additional officer went over the "Informingthe Accused" form with him, defendant agreed to give a blood sample for alcoholconcentration testing. The defendant moved the trial court to suppress the results of theblood test because the arresting officer "failed to adequately orally inform"him of the matters specified in Wis. Stat. § 343.305(4).
The defendant argued that County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276,542 N.W.2d 196 (Ct.App. 1995), holds that the informing the accused and Mirandawarnings are identical in that both must be understood by the arrestee. The courtdisagreed, stating that the supreme court had not recognized "subjectiveconfusion" as a "defense" in proceedings relating to the requirements ofWis. Stat. § 343.305(4). In other words, the implied consent law does not"require assessing the driver's perception of the information delivered to him orher." Id. at 280. Rather, the adequacy of the implied consent "warningprocess" is to be judged objectively via the three-part inquiry which focuses onwhether the arresting officer omitted or oversupplied information to the OWI arresteewhich affected the person's choice regarding chemical testing. See id. Wespecifically rejected a claim that the officer had "a duty to `explain' and notmerely read the information form." Id. The court states that itis but a small step from their analysis and discussion in Quelle to a conclusionthat, so long as an arresting officer "orally informs" an arrestee of thecorrect required information, judicial inquiry is over. That is, a court need not delveinto whether the information was properly perceived or understood by the OWI arrestee.
Petition for Review filed with the Wisconsin Supreme Court. Issue onAppeal: Does Wis. Stat. § 343.305 require an arresting officer to ensurethat the defendant understands the information provided?
Plea by Closed-Circuit Television That Does Not Violate Due Process.
In State v. Peters, 2000 Wis. App. LEXIS 450 (recommendedfor publication), the court of appeals found that although the plea entered byclosed-circuit television violated statutory criminal procedure, the procedure did notviolate the defendant's constitutional due process rights and affirmed his previousconviction. Here, the defendant appealed a prior criminal conviction for operatingafter revocation that enhanced his penalty in this case for subsequently operating afterrevocation. In the prior conviction, defendant pled no contest and was sentenced viaclosed-circuit television. Defendant claimed a violation of Wis. Stat. § 971.04(1),which provides that a defendant shall be present at the arraignment and at the impositionof sentence.
Because Peters did not explicitly waive his right to be physically present, the courtholds that the closed-circuit television procedure violated statutory criminal procedure.However, Wis. Stat. § 971.04(1) has not been interpreted to specify constitutionallymandated procedures. Therefore, a statutory violation of §971.04(1) does notautomatically translate into a constitutional violation. To meet his initial burden, thedefendant must show that the closed-circuit television procedure denied him a fair andjust hearing. See May v. State, 97 Wis. 2d 175, 186, 293 N.W.2d 478 (1980). Other than conducting the hearing by closed-circuit television, the plea and sentencingfollowed appropriate procedure, and there is no indication from Peters that he was coercedor threatened by outside forces. In upholding the defendant's earlier conviction,the court states that absent any substantiated allegations of unfairness, a no contestplea from jail by closed-circuit television is not necessarily coercive or violative ofdue process.