As the saying goes, "The size of the attorney's ad is inversely proportionate to the skill of the attorney."  True, some attorneys pay for big, gaudy ad's in the phone book in order to net as many clients as they can.  Some attorneys' ad's are obviously trying to convince the public that they are "tougher" than the other guy.  But even assuming they are that "tough", will it lead to results for the person charged with a crime or injured in an accident? 

I am an advertising attorney, like nearly every other attorney out there.  Attorneys spend a TON of money advertising in the phone book, on TV and radio.  So, I frequently do look at, or listen to, ad's put out by other attorneys.  With all due respect, I often end up laughing at, or worse, embarrassed by, some lawyers' ad's.  

Many attorneys' ad's boast that the attorney is "tough", or "aggressive", and/or "will fight for you."  But are you hiring an attorney or a professional wrestler?  Such attorneys sometimes craft ad's that portray themselves as feared or revered by the opponent.  You may have seen the one where the attorney brags that some defeated--and, conveniently, anonymous--prosecutor had congratulated the attorney for being so great in court; or the one where two insurances adjusters privately confess that they "better settle fast" now that attorney so-and-so is handling the case.  I don't even have to go into the "Denny Crane" ad's.  The bigger the city, the more the competition, the more desperate these ad's get.  If you are considering hiring an attorney based upon "tough talk", consider this:

Jim "The Hammer" Shapiro, was an attorney from Rochester, New York.  He owned three law firms, and he claimed in his fantastic ad's to be "the meanest, nastiest S.O.B.  in town" with "aggressive courtroom prowess".   He reportedly even sold T-shirts that read:  "Protected by Vicious S.O.B., Jim The Hammer Shapiro."  This guy must have been a fierce trial attorney, right?   In fact, the New York Supreme Court, Appellate Division, later found this big-talking lawyer "never tried a case to its conclusion".  HE NEVER EVEN TRIED A CASE!

Don't let your desire to win cloud your common sense.  Cases are handled by human beings on both sides.  Just like you, the people on the other side of your case expect to be treated with a certain amount of respect.  Prosecutors, judges, insurance adjusters, and attorneys on the other side of your case are not likely to cave in just because your attorney is a bully.  The opposite result is more likely:  A jerk attorney can cause the other side to dig in and refuse to be reasonable, hurting your case, costing you time, and, perhaps, a lot more money.  Not  very smart at all.

You want an attorney who is SMART, and who is a CREDIBLE threat.  Such attorney is willing to try cases, and has the skill to pull out a victory, even when it looks doubtful.  That reputation will speak for itself.  You want an attorney who will be very resolute, but who will also choose battles carefully and not turn everyone against you with a "flamethrower" approach to litigation.  That kind of attorney will make the OTHER side look bad if THEY are not reasonable.  When it comes to good lawyering, being smart may be twice as good as being "tough".  

Think about what a lawyer's ad might really be saying about the lawyer before you dial those digits. 

In State of Wisconsin v. Maddix, released only yesterday, Judges Higginbotham, Blanchard, and Kloppenburg of the  District III of the Court of Appeals reversed a circuit court ruling that upheld a search and discovery of a marijuana grow room by police during a domestic-related incident on the grounds that the search was justified by the "community caretaker" exception to the Fourth Amendment. 

The Fourth Amendment requires that the police have a warrant when conducting searches and seizures, especially in homes, where citizens are entitled to the greatest "expectation of privacy".  The community caretaker exception to the warrant requirement rightfully recognizes that there are times when law enforcement are not investigating crime, but are instead trying to help someone who may be in need of help.  Under such circumstances, they should not be required to go through the paces of getting a warrant, mostly because taking that time may result in harm or loss of life. 

The problem is, when police do go snooping without a warrant and do find something illegal, they will often attempt to excuse their warrantless conduct in this way.  There are instances, in my opinion and experience, where it can get way too 'creative' when testifying officers go down that path.      

In Maddix, the police responded to a domestic incident wherein a woman in an apartment was heard my neighbors screaming.  The police went into the Maddix residence and spoke with Maddix  and the woman.  They each separately explained they were arguing about their relationship.  The woman said she was the one that was screaming, but didn't know why.  They both said no one else was there. 

The police had undertaken a "protective sweep"  of the apartment (another exception to the warrant requirement.  During the course of that, an officer noticed a light coming from under a closet door in another room down a hallway.  He speculated that someone might be inside.  He opened the door and found marijuana plants under a grow light.  The police had been there as long as 35 minutes.  

In holding that the community caretaker function did not excuse the search, the court pointed out that there must be "‘objectively reasonable basis’ to believe [that] there is ‘a member of the public who is in need of assistance,’" and to justify on the basis of a "protective sweep", there must be evidence "the officers reasonably believed that the search was necessary to assure the officers’ or others’ safety". 

The court found that there was no evidence directly corroborated the officers’ theory that another person was
present in the apartment during the lengthy time they were there.  The belief was not objectively reasonable.   As the court put it, allowing the search in this case would "allow this exception to justify virtually any residential 'sweep' as part of a police response to an alleged domestic disturbance".

I applaud the Court of Appeals for putting limits on the community caretaker exception.  No one wants to limit the ability of police to help people in need, but we also don't want to give them free leave to poke around our private places, especially our homes.  As pointed out, if it were allowed in this case, then what case wouldn't qualify?  After all, isn't every closed door a potential hiding place for someone in need of help?            

   

Yes, State of Wisconsin v. Carter has been around since 2010, but it has only recently been changing the way 
defendants in La Crosse County OWI or PAC cases are being charged.  For this OWI defense attorney, counting
prior out-of-state suspensions or revocations for Absolute Sobriety violations, Absolute Sobriety convictions, or Implied Consent "convictions" the same way you would a prior drunk driving conviction is patently unfair.
However, some Wisconsin OWI prosecutors, including the current one in La Crosse County, are using Carter to do just that.  Judges, ruling that their hands are tied by Carter, have little choice but to allow them to do so.      

Wis. Stat. section 343.307 definitely allows Wisconsin OWI prosecutors to count prior Wisconsin OWI or PAC
convictions, as well as prior Implied Consent Refusals to test, as prior convictions to enhance new OWI/PAC charges to more serious levels, e.g., OWI/PAC 2nd, 3rd, 4th, etc.  (The ability to count these "priors" has other limitations which are not covered in the scope of this article.)  Currently, an OWI/PAC 4th is a felony if it is within 5 years of another.  So this is serious stuff.

Section 343.307 does not allow Wisconsin prosecutors to count prior Implied Consent violations, prior Absolute Sobriety "convictions", and certainly not losses of license stemming from Absolute Sobriety convictions, as priors, if they occurred in Wisconsin.  However, according to a majority in the Supreme Court of Wisconsin in Carter, suspensions from Absolute Sobriety convictions can be counted, if they originate from other states.   

The Carter court overturned the Court of Appeals ruling which held that the Illinois suspension could not be counted as a prior conviction under 343.307.  The court reached its conclusion by interpreting section 343.307 in a manner that determined that prior Illinois administrative suspensions for committing an Absolute Sobriety offense were prior "convictions".  

The reasoning and interpretation of the majority is quite complicated, and you can read it yourself.  Suffice it to say, I respectfully disagree.  Justice Anne Walsh Bradley also disagreed, and her dissent is, in my opinion, far more compelling.

The main reason I disagree with the ruling is that these so-called "convictions", if they occurred in Wisconsin, could not even be counted under 343.307.  It would be extremely odd , not to mention possibly unconstitutional, for the legislature  to draft the statute so it treats out-of-state drivers, or drivers who moved to Wisconsin, more harshly than drivers from Wisconsin.  Further, unlike actual convictions, the suspensions at issue in Carter were "administrative."  These types of "convictions" can theoretically be proven only by only DMV driving records, even if court records relating to the underlying charge, here Absolute Sobriety, are non-existent.  See State of Wisconsin v. Van Riper, 2003, WI App. 237.  Finally, this ruling affects people with Absolute Sobriety suspensions.  These people are or were, almost by definition, under 21 years of age at the time of the underlying event.  They shouldn't have a .02 BAC driving event follow them potentially for the rest of their lives.  

State v. Carter revolved around statutory interpretation.  Therefore, unless the legislature changed the statute to avoid this result, or unless the Supreme Court of Wisconsin reverses the decision, it is the law.  There is likely little chance of either occurring in the near future.  There may be differences between state laws regarding such revocations or suspensions that would distinguish them from the holding in Carter.  However, to date I have not had a judge agree.  What can be done, if a judge will not strike these prior "conviction" on motion, is to take the OWI case to a jury trial to avoid the conviction altogether.  If that does not work, or is not practical, then definitely argue for more lenient treatment at sentencing.  A person with two prior suspensions or revocations for Absolute Sobriety should not be treated the same as someone with two actual prior drunk driving convictions.       

Thanks for letting me vent.              

When you go to traffic court for a first-offense OWI, or any another "forfeiture case",  scheduled in a Wisconsin circuit court, you do not have an automatic right to a jury trial.  In La Crosse County, but certainly not all Wisconsin counties, the presiding judge will warn the audience that, for these types of cases, a request for a jury trial must be made in writing and the jury fee paid within 10 days of pleading not guilty, or you will only have the right to a court trial (trial to the judge).  In the La Crosse County Circuit Court, if you do plead not guilty, or even if the judge enters a not-guilty plea for you, the next thing they do is order you to meet with the District Attorney's Office, for what is called a "pretrial conference."  That meeting will almost always take place after the 10-day limit to request a jury trial and pay the jury fee has passed.  You may not even know whether you want to go to trial until you know what the DA is willing to offer.  You will simply have to make the request and pay the fee--OR which may now be an option (thanks to me, pat, pat), ask for a continuance to allow you to speak with the prosecutor before the not guilty plea is entered.
  
In a recent OWI 1st case in La Crosse County, I was hired after the individual attended the initial appearance and pretrial conference.  At the initial appearance, the judge asked him/her whether he/she wanted to speak with the La Crosse County DA's attorney about a plea offer.  When he/she said "yes", the judge entered his/her plea for him/her, which he/she did not catch or understand.  He/she was then ordered to speak with the DA, but not until after the 10-day period.  I was retained after the pretrial conference, and I immediately filed a request for a jury trial and paid the fee.  A jury trial was scheduled.  However, this resulted in the La Crosse County Assistant DA filing a motion to strike the jury trial on the grounds that it had been waived because the request and fees were not filed and paid within 10 days.  

The DA's motion was denied, but not for the reasons you might think.  In researching the issue, I found that the statute that deals with initial appearances in forfeiture cases requires some things:  Wis. Stat. section 345.43  (1) states: "The defendant shall be informed of his or her right to a jury trial in circuit court  on payment of fees required by  s. 345.43  (1) . "  Further, Wis. Stat. section 345.43  (1) states: "If the defendant appears in response to a citation  . . . the defendant shall be informed that he or she is entitled to a jury trial and then asked whether he or she wishes presently to plead, or whether he or she wishes a continuance.  If the defendant wishes to plead, the defendant may plead guilty, not guilty or no contest."

I obtained a transcript of the initial appearance.  The transcript showed that the audience members at the initial appearance were warned they must request a jury trial.  (Arguably, that should have carried the day for my client, because there was no way to prove my client was present at that time, and he/she was not personally told that or asked whether it had been heard.)  However, the transcript clearly showed that no one was asked whether they wished to have a continuance.   City  of Madison v. Donohoo,  118 Wis.2d 646, 652-53 (Wis. 1984), I further discovered, makes that was mandatory.  The Judge hearing the DA's motion ruled that this was a defect at the initial appearance, and he denied the motion.  Furthermore, at every initial appearance to since, the Judge now  
specifically informs the audience members that they may request a continuance before entering a plea.

Before this fiasco, if you asked for a continuance in La Crosse County Traffic Court, the Judge would usually enter your plea for you and tell you to come back after meeting with the DA.  If you came back later and asked for a jury trial, it was "too bad", you only get a court trial.  Now, when you attend the initial appearance in a forfeiture case, you can ask for a continuance before entering a plea.   That is the key.  Because, if you enter the plea, or let the judge do it for you, and don't file the request or the jury fee within 10 days, the DA will be fighting to prevent you from having your jury trial.

There is a lot to be learned from this situation, not the least of which is get an attorney before you do harm to your case.  At Dyer Law Firm, LLC, we will find a way to get to get results.  While doing so, we may even expand the rights of everyone else.        
 



 
  

     

Just days ago, the Supreme Court for the United State ruled, in Missouri v. McNeely, that the dissipation of alcohol in  blood does not create a per se exception to the Fourth Amendment requirement that a warrant be obtained before an officer conducts a search or seizure, in this case, drawing blood from a suspected impaired driver who refuses to voluntarily submit.  Instead, the courts will have to determine, on a case-by-case basis where no warrant was obtained, whether "exigent circumanstances" (an emergency) existed to allow the warrant requirement to be ignored by the police.  

For years, Wisconsin and Minnesota trial and appellate courts have ruled that an earlier U.S. Supreme Court decision, Schmerber v. California, 384 U.S. 757 (1966), permitted forced warrantless blood draws from suspected impaired drivers, so long as there existed probable cause and the method of drawing the blood was not patently unreasonable.  Therefore, the McNeely decision represents a monumental shift in the manner that blood draws will be conducted by police. 

A lot of questions remain uncertain at this point, including (1) whether breath or urine tests will be
given similar treatment under McNeely; (2) whether McNeely  will be applied retroactively to prior cases; and (3) whether McNeely has any application to cases where the suspect driver agreed, under the Implied Consent
Law, to submit a sample.  Remember, in Minnesota, a refusal to submit a sample of breath, blood, or urine is a crime, and the subject is told that when he/she supposedly consents to provide a sample.  How could agreement to submit a
sample, under threat of criminal prosecution, be anything but coerced consent?  And under the Wisconsin Implied Consent  Law, a suspect is told his/her driving privileges will be revoked, creating similar issues. 

One thing is for sure, this case is a very exciting development for this OWI/DWI attorney, and I will be working to answer these and other questions to give my clients every advantage possible.  Another thing, is that there will be a lot of judges losing sleep taking late-night calls on warrant applications.