RESOURCE CENTER REPORT
Winter 2004
University of Wisconsin Law School Resource Center on Impaired Driving
ENACTED LEGISLATION
2003 Wisconsin Act 30, effective September 30, 2003.
Wisconsin Act 30 lowers the general prohibited alcohol concentration (PAC) for operating motor vehicles, motorboats, ATVs, and snowmobiles from .10 to .08.
However, under Act 30, for first time offenders with an alcohol concentration of at least .08 but less than .10, the law foregoes the application of all surcharges and fees that are generally added on to base deposits for traffic violations, with the exception of seat belt violations and the alcohol assessment.
The surcharges and additional fees that are generally added include court support services fees ($68), court costs ($25), crime lab and drug assessment fees ($7), penalty assessments (24% of the base deposit), jail assessments ($10), justice information fees ($9), driver improvement surcharges ($355), and municipal court costs.
The interpretation of the applicability of these provisions has generated a fair amount of discussion. For example, one interpretation is that the fee exceptions are applicable only for a municipal or county ordinance violation at the circuit court level, but are not required at the municipal court level. In other words, while a circuit court judge would be required to waive the fees, a municipal court judge would have the discretion of whether to do so.
Another interpretation is that Act 30 does not consistently use the language “or a local ordinance in conformity therewith” when describing the circumstances in which the exemption applies. Thus, in the sections where not specifically stated, the exemption would not apply to an ordinance violation of sec. 346.63(1)(b) (all references in this article to the Wisconsin Statutes are to the 2001-02 Wisconsin Statutes), where the person who committed the violation had a BAC of .08 or more, but less than .10 at the time of the violation.
The Municipal Judge Education Committee took up the issue, recognizing that the language was problematic, but concluded that the exceptions do apply to municipal courts. In reaching this conclusion, the committee specifically relied upon sec. 814.65(1), as amended: “In a municipal court action, except for an action for a first violation of s. 23.33(4c)(a)2., 30.681(11)(b)1., 346.63(1)(b), or 350.101(1)(b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of an ordinance in conformity with s. 347.48(2m), the municipal judge shall collect a fee…”
In addition, Act 30 requires the Department of Transportation to purge the record of a first offense OWI after 10 years if: (1) the person who committed the violation had a blood alcohol concentration (BAC) of .08 or more but less than .10 at the time of the violation; (2) the person does not have a commercial driver’s license; (3) the violation was not committed by a person operating a commercial motor vehicle; and (4) during the 10-year period, the person has no other suspension, revocation, or conviction that would be counted as a prior offense under sec. 343.307.
Incidentally, Assembly Bill 615 would expand this requirement to include a first offense OWI in addition to a first offense OWI-PAC, regardless of the alcohol concentration.
2003 Wisconsin Act 97, effective December 19, 2003.
Wisconsin Act creates a third subsection under the OWI law. Subsection 346.63(1)(am) prohibits a driver from operating or driving a motor vehicle with a detectable amount of a “restricted controlled substance” in his or her blood. A “restricted controlled substance” is defined as: (a) A schedule I controlled substance under ch. 961 other than tetrayhydrocannabinol. (b) A controlled substance analog, as defined in s. 961.01(4m), of a controlled substance described in par. (a). (c) Cocaine or any of its metabolites. (d) Methamphetamine. (e) Delta-9-tetrahydrocannabinol.
Under Act 97, if an individual has a detectable amount of a restricted controlled substance in his or her blood stream while operating a motor vehicle, there is no longer a requirement that the person be “under the influence” of that restricted substance.
Penalties that apply under Act 97 are the same that would apply if the individual had a prohibited alcohol concentration under subsec. 346.63(1)(b) or had been under the influence of an intoxicant under subsec. 346.63(1)(a).
A driver who is charged under subsec. 346.63(1)(am) has a defense if he or she proves by a preponderance of the evidence that at the time of the incident he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol. In addition, a person who is charged with homicide or causing injury while operating a motor vehicle with a detectable amount of a restricted controlled substance in his or her blood may assert two potential defenses; namely, (1) the death or injury would have occurred even if he or she had been exercising due care and did not have a restricted controlled substance in his or her blood, or (2) he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol at the time of the incident or occurrence.
SUPREME COURT OF WISCONSIN
Anderson v. American Family Ins., 2003 WI 148, 671 N.W. 2d 651.
In this case, the Wisconsin Supreme Court held that an underage drinker, who is injured or dies as a result of the consumption of alcohol that was illegally provided to a companion underage drinker, is considered an injured third party for purposes of the exception to immunity under subsec. 125.035(4).
Here, a mother purchased a bottle of vodka for her underage son. Her son took the vodka to the family’s vacation property, where he and two friends drank it. Either late that night or early the next morning, Craig Anderson died of acute alcohol intoxication. The parents of the deceased brought a claim against the mother who purchased the vodka, the son who took the vodka with him on the trip, and the insurance company of the mother and son. The trial court granted summary judgment to all three defendants; however, the court of appeals reversed this decision as to the mother who purchased the vodka.
Subsection 125.035(2) states, “A person is immune from civil liability arising out of the act of procuring alcoholic beverages for or selling, dispensing or giving away alcohol beverages to another person.” However, this immunity does not apply if: (1) the provider knew or should have known that the underage person was under the legal drinking age and (2) if the alcoholic beverages provided to the underage person were a substantial factor in causing injury to a third party.
Applying the statutory exception to the undisputed facts, the supreme court concluded that the mother was a “provider” for purposes of the exception because she gave her son, who she knew was under the legal drinking age, alcohol while he was unaccompanied by a parent, in violation of subsec. 125.07(1)(a). While there was no question that the alcohol provided to her underage son was a substantial factor in causing injury to Anderson, the mother argued that Anderson was not a third party under the statute. She argued that because Anderson procured the vodka from her son and drank it himself, he essentially became a “provider” under the terms of the statute. As such, he could not also be considered a third party. Thus, the mother argued that the immunity exception would not apply.
The supreme court disagreed with this interpretation and concluded that Anderson was a third party to the transaction by which the mother provided alcohol to her underage son. Thus, the immunity exception applied and the mother could be held liable for Anderson’s death. While Anderson’s own consumption did not affect his status as a third party, the court did make it clear that it could bear upon his contributory negligence.
State v. Jorgensen, 2003 WI 105, 264 Wis. 2d 157, 667 N.W. 2d 318.
Here, the Wisconsin Supreme Court affirmed a court of appeals decision that district-by-district sentencing guidelines are constitutional.
In this case, the defendant was found asleep in her vehicle in a ditch. After performing poorly on field sobriety tests, the defendant was arrested for OWI. A jury trial was held and the defendant was found guilty of OWI and OWI-PAC. Because subsec. 346.63(1)(c) only allows for one conviction for sentencing and counting purposes, the defendant’s judgment of conviction was entered on the OWI charge.
At sentencing, both the prosecutor and defense counsel made arguments based on the “Fifth Judicial District OWI Sentencing Guidelines” established by the Chief Judge of the Fifth Judicial District under the authority granted in subsec. 346.65(2m)(a). After hearing the arguments, the circuit court sentenced the defendant to seven months in jail, explicitly referencing the sentencing guidelines.
On appeal, the defendant argued that the sentencing guidelines relied upon by the trial court were unconstitutional. Specifically, she argued that the guidelines violated her state and federal constitutional rights to due process and equal protection of the law because they increase sentencing disparity on the basis of the geographic location of the offense. The defendant also claimed that the guidelines established by the Fifth Judicial District exceeded the authority granted by subsec. 346.65(2m)(a).
The supreme court found both arguments unconvincing, concluding that the guidelines established by the Fifth Judicial District were appropriate and within the authority granted in subsec. 346.65(2m)(a). Further, rather than create disparity, the court found that the guidelines actually serve to reduce disparity within judicial districts.
State v. Delaney, 2003 WI 9, 259 Wis. 2d 77, 658 N.W. 2d 416.
The Wisconsin Supreme Court held that a defendant who is convicted of a second or subsequent offense OWI is subject to the penalty enhancements provided for in both subsec. 346.65(2) and sec. 939.62, so long as the application of each enhancer was based on separate and distinct prior convictions.
In this case, the defendant was arrested for OWI after being involved in a hit and run accident. The defendant entered a no contest plea to OWI, third offense, as a repeater under subsections 346.63(1)(a), 346.65(2)(c), and 939.62, and a no contest plea to two counts of causing injury while OWI under subsec. 346.63(2)(a)(1).
After sentencing, the defendant filed a motion for post conviction relief seeking to reverse the circuit court’s ruling applying the penalty enhancer under sec. 939.62. The court of appeals affirmed the circuit court’s decision, finding that the statutory language of sec. 939.62 and subsec. 346.65(2)(c) was unambiguous.
The question before the supreme court was whether a penalty enhancer under sec. 939.62, based on the existence of a past non-OWI offense, applies to the defendant’s already enhanced OWI offense. The defendant argued that the application of sec. 939.62 was misplaced since it was used to further enhance his already enhanced penalty under subsec. 346.65(2)(c).
Here, the defendant’s enhanced penalty under sec. 939.62 was based on his prior conviction for attempted possession of THC with intent to deliver, whereas the enhanced penalty under subsec. 346.65(2)(c) was based on his prior OWI conviction and his refusal to submit to a chemical test. The supreme court concluded that because each enhancer was based on separate and distinct prior convictions, the defendant was properly subjected to the penalty enhancements provided for in both statutes.
WISCONSIN COURT OF APPEALS
State v. Larson, 2003 WI App 150, 668 N.W. 2d 338.
In this case, the court of appeals concluded that an officer’s act in placing his foot across the threshold of an individual’s doorway, preventing the individual from closing the door, constitutes an entry for Fourth Amendment purposes.
After receiving two tips that an intoxicated driver was driving a maroon and silver pickup truck, an officer ran the license plate and proceeded to the defendant’s residence. When the defendant answered the door, the officer placed his foot across the threshold so that the defendant could not slam the door and began questioning the defendant.
While speaking with the defendant, the officer detected an odor of intoxicants and slurred speech. After admitting that he had just driven home, the defendant was arrested for second offense OWI. After the trial court denied his motion to suppress, the defendant pled no contest and was subsequently sentenced to jail.
On appeal, the defendant claimed that his Fourth Amendment rights were violated when the officer entered his apartment without his consent and without an arrest warrant. The court of appeals agreed with the defendant and held that the officer’s act of stepping across the threshold to prevent him from closing the door constituted an entry under the Fourth Amendment. The court emphasized that the Fourth Amendment draws a firm line at the entrance of the house.
Having established that there was an entry of the defendant’s home, the court next had to determine whether the entry was permissible under the Fourth Amendment. To justify a warrantless entry, the State must prove that there was probable cause to arrest and, in addition, exigent circumstances that could not brook the delay incident to obtaining a warrant.
Turning to the facts at hand, the court concluded that at the time the officer put his foot inside the defendant’s doorway he did not have probable cause to arrest. At that moment, the officer had not yet detected the odor or the slurred speech, nor had he obtained the defendant’s admission to driving. As such, the court could not conclude that probable cause to arrest existed.
Despite this finding, the court concluded that even if it were to assume that probable cause to arrest existed, the State had failed to demonstrate that exigent circumstances justified the entry. The court reiterated the four factors that would constitute exigent circumstances; namely, (1) an arrest made in “hot pursuit,” (2) a threat to the safety of the suspect or others, (3) a risk that evidence would be destroyed, and (4) a likelihood that the suspect would flee. The court concluded that none of these circumstances existed in the present case, and as a result, any evidence gained after the entry into the defendant’s apartment had to be suppressed.
State v. Erickson, 2003 WI App 43, 260 Wis. 2d 279, 659 N.W. 2d 407.
In this case, the court of appeals held that a warrantless blood draw may be taken prior to an arrest, if the officer has probable cause to believe a person’s blood contains evidence of a drunk driving related violation or crime. The defendant crashed her car into another vehicle, killing the passenger and seriously injuring the driver. After the defendant was transported to the hospital for treatment of her injuries, but before she was arrested, the arresting officer directed medical personnel to take a blood draw without the defendant’s consent. The test revealed that the defendant’s blood alcohol level was above the legal limit and she was subsequently arrested for homicide by intoxicated use.
The defendant filed a motion to suppress the blood test results claiming the blood was taken without her consent, without a warrant, and without probable cause to arrest. The defendant’s motion to suppress was denied and the defendant appealed.
In affirming the trial court’s decision, the court of appeals relied on the Wisconsin Supreme Court’s decision in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). In Bohling, the supreme court established a four-prong test for the admissibility of a nonconsensual blood test result taken without a warrant: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw. If the four prongs of Bohling are satisfied the test results are admissible.
The dispute in this case centered around the first prong of the test. Specifically, the defendant claimed that the prong was not satisfied because she had not been lawfully arrested prior to the blood draw. The court rejected the defendant’s argument and held that in the absence of an arrest, probable cause to believe blood contains evidence of a drunk-driving violation or crime satisfies the first prong of Bohling.
In this case, the officer knew that less than two hours before the blood draw there had been a serious crash that killed one individual and seriously injured another. The defendant admitted that she had crashed her vehicle into the other vehicle and that she had been on her way home from a party where she had been drinking. Further, the officer and emergency medical technicians had detected an odor of intoxicants on the defendant.
The court concluded that based upon the totality of the circumstances known to the officer at the time of the blood draw, there was probable cause to believe that the defendant’s blood contained evidence of a drunk driving related crime at the time. Therefore, the test results were admissible.
State v. Drexler, 2003 WI App 169, 669 N.W. 2d 182.
In this case, the court of appeals held that before accepting a waiver of counsel, a trial court is not required to conduct a colloquy which includes specific advice to a defendant that the right to counsel is broader than the right to a public defender, but also includes the right to counsel appointed by the court and paid for by the county.
Here, the defendant appealed a circuit court judgment convicting him of fourth offenseOWI, arguing that the judge on his second offense OWI failed to advise him that he had the right to counsel appointed by the court and paid for by the county. The defendant claimed that this failure precluded a knowing, intelligent and voluntary waiver of his constitutional right to counsel.
When a defendant chooses to proceed without counsel, the trial court must make sure that the defendant: (1) has knowingly, intelligently, and voluntarily waived the right to counsel, and (2) is competent to proceed without counsel. To fulfill the first prong, the trial court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the challenges and disadvantages of self-representation, (3) was aware of the seriousness of the charges, and (4) was aware of the general range of penalties that could be imposed. If a court determines that the defendant knowingly waived the right to counsel, the court must next determine if the defendant is competent to proceed without counsel.
The court of appeals concluded the colloquy in this case was sufficient. Further, the court observed that it would be up to the state supreme court to determine whether in the future, a defendant’s right to counsel should include a requirement that trial courts must provide a more detailed description of this right, including the right to counsel appointed by the court and paid for by the county.
State v. Colstad, 2003 WI App 25, 260 Wis. 2d 406, 659 N.W. 2d 394.
Here, the defendant’s vehicle collided with a child, resulting in the child’s death. An officer told the defendant to move to a location away from the accident scene and to wait. When the officer made initial contact with the defendant, the officer did not notice any signs of intoxication. After assisting with the care of the child, the officer contacted the defendant again. During this encounter, the officer detected a mild odor of intoxicants and the defendant admitted to having two beers that evening.
The defendant agreed to perform field sobriety tests and submit to a preliminary breath test. The results of these tests, along with other information the officer gathered, led the officer to arrest the defendant for OWI. A subsequent blood test revealed that the defendant had a prohibited alcohol concentration.
The defendant was charged with homicide by OWI, homicide by OWI-PAC, and homicide by negligent operation of a vehicle. The defendant subsequently moved to suppress the chemical test results, as well as the results of the field sobriety tests. On appeal, there was no dispute that the officer seized the defendant when he directed him to move to a location away from the accident and wait, and the State conceded that the evidence that was subsequently obtained had to be suppressed if the initial temporary seizure was found to be illegal.
In determining whether the initial seizure was in violation of the Fourth Amendment, the court of appeals reiterated that to justify an investigative seizure, the police must have reasonable suspicion to believe that an individual is violating the law. In the present case, the court concluded that the officer had reasonable suspicion to believe that the defendant violated a traffic ordinance; namely inattentive driving.
Addressing the defendant’s argument that his detention was not “temporary,” the court concluded that given the chaotic accident scene and the need for the officer to attend to the victim, the length of the detention was reasonable.
State v. Clark, 2003 WI App 121, 666 N.W. 2d 112.
In this non-OWI case, officers responded to a report of shots fired and a possible attempted robbery. A detective interviewed an individual at the scene who reported that the defendant had visited him earlier in the day and that he was driving a gray Ford Taurus station wagon when he arrived. The individual informed the officers that as the defendant was leaving the home, he was approached by a man holding a handgun, who began firing shots when the defendant fled on foot.
The police found spent shell casings in the street within ten yards of the parked vehicle. Although the detective observed that the vehicle was undamaged and legally parked, because the vehicle was unlocked, he had it towed to the police department’s impound lot for safekeeping. Prior to towing the vehicle, the detective conducted a search and discovered a backpack containing cocaine.
The defendant was charged with possession of a controlled substance with intent to deliver. The defendant subsequently filed a motion to suppress challenging the search of the vehicle. At the suppression hearing, the detective testified that his decision to tow the vehicle was based on the department’s “safekeeping tow” policy. The detective further testified that pursuant to his department’s unwritten “unsecured vehicle” policy, he could not have simply locked the vehicle and left it legally parked. After the circuit court denied the defendant’s motion to suppress, the defendant entered a guilty plea and was sentenced to ten years in prison.
On appeal, the defendant challenged the trial court’s ruling denying his motion to suppress. The state argued that the search was a valid inventory search done pursuant to department policy, and as such, it was reasonable and permissible. The court of appeals disagreed, emphasizing that compliance with an internal police department policy does not, in and of itself, guarantee the reasonableness of a search or seizure. Rather, the relevant inquiry is whether the seizure is reasonable under the Fourth Amendment, absent any departmental policy.
In this case, the state argued that the vehicle was towed for safekeeping, so the court of appeals had to determine whether the seizure was a reasonable exercise of the community caretaker function. Under this function, a three-step test is used to evaluate the reasonableness of such a seizure: (1) that a seizure within the meaning of the Fourth Amendment has occurred, (2) if so, whether the police conduct was bona fide community caretaker activity, and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.
The court of appeals concluded that none of the typical public safety concerns were present in this case, and although the detective testified that the vehicle was not towed for the public’s safety, but rather to ensure that the vehicle itself and it’s contents would not be stolen, there were other effective alternatives available, such as simply locking the vehicle. For these reasons, the court of appeals reversed the circuit court’s decision.
State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W. 2d 137.
During a stop of the defendant for speeding, an officer noted an odor of intoxicants, bloodshot eyes and slurred speech. After the defendant refused to perform field sobriety tests and declined a preliminary breath test, he was arrested and placed in the back seat of the squad car. While in the squad car, the defendant requested to speak with his law partner who was in the vehicle with him when he was stopped. The officer allowed this, but eventually interrupted their conversation in order to transport the defendant to the police department.
While in the police department garage, the defendant again asked for his law partner to accompany him, and the officer denied his request. The defendant repeated his request once in the Intoxilyzer room. In response, the officer pointed to a newspaper clipping that hung on the wall which indicated that a person is not entitled to the advice of counsel before deciding whether to take a chemical test. After the officer read the defendant the Informing the Accused, the defendant refused to submit to the breath test.
Acknowledging that if an officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel, the officer may not thereafter pull the rug out from under the defendant if he or she reasonably relies on this assurance or suggestion, the court of appeals concluded that at no time did the officer in this case expressly assure the defendant that he had a right to consult his law partner. The fact that the officer previously allowed the defendant to consult with his attorney upon being arrested in no way suggested that the defendant was entitled to consult with his attorney throughout the arrest and evidence gathering process.