Legal Blog of Onalaska-Law.com and Dyer Law Firm, LLC, outstanding OWI/DUI/DWI, Criminal Defense, Car/Motorcycle Accident Attorney/Lawyer

DYER LAW FIRM, LLC, WINS APPEAL IN CASE WITH STATE-WIDE REACH.

7/9/2026

The Wisconsin Court of Appeals recently affirmed La Crosse County Circuit Court order suppressing all evidence from a late-night traffic stop by a City of La Crosse Police Officer, Kevin Lozano. The ruling resulted in dismissal of charges for OWI/PAC 3rd or 4th. Read the entire decision here: www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=1134830

The traffic stop was based on Lozano's errant belief that my client's vehicle was equipped with illegal window tint. At the hearing, it quickly became apparent that Lozano did not know the difference between factory-glazed window tint, which is always legal, and after-market tint, which must comply with the Wisconsin window tint regulations. This resulted in a Motion for Suppression being granted by Judge Ramona Gonzalez. The State appealed the ruling. Recently, the Court of Appeals rejected the State's appeal and affirmed the suppression order.

Because there was NO prior Wisconsin case dealing with the difference between factory-glazed window tint and after-market tint, this case sets a persuassive standard for traffic stops involving vehicles with windows tinted during the factory-glazing process. The police should no longer assume that tint is after-market when deciding to stop a vehicle.

This ruling is very important, because vehicles classified as trucks, SUV, minivans, and crossovers are often equipped with very dark rear-side and rear windows. If police are able to simply assume the worst, there was ample room for abuse. By the way, this was the second case within a year where I successfully challenged evidence obtained by Officer Lozano following a traffic stop.

LA CROSSE COUNTY JUDGE FINES CITIZENS WHO SKIPPED OUT ON JURY DUTY.

1/25/2018

La Crosse County Circuit Court Judge Todd Bjerke was not amused when a number of citizens summoned for jury duty for the Todd Kendhammer trial simply failed to show up. An article in the La Crosse Tribune outlines some of the totally lame excuses these people gave to the judge, which ranged from pure "stupidity", to believing that a jury was being brought in from another county. "So you just didn't show up then?", the judge asked. "Yup", that errant citizen replied. Amazingly, one person who was subpoenaed to explain his/her absence did not even show up to do that! That person was summarily fined $500.00. If that person is as bad at paying the fine as he/is at obeying court summonses, he/she will probably sit time in the jail for the unpaid fine.

Obviously, jurors play an essential role in the jury trial system. I have handled trials where an inadequate number of jurors nearly led to the Sheriff going to a nearby cafeteria to conscript unwitting citizens to serve. Such a thing is patently unfair for the citizens enjoying their lung, not to mention for the criminal defendant or civil party who will have some unhappy campers sitting on his/her jury.

The right to a jury trial is probably the most crucial safeguard we have as citizens. That's why they call it "jury duty". Hopefully, the publicity from these events will help prevent further absences.

LA CROSSE COUNTY COURT ALLOWS STUDENT'S LAWSUIT AGAINST VITERBO UNIVERSITY TO GO FORWARD.

12/19/2016

A La Crosse County judge recently denied a motion by Viterbo University to dismiss a lawsuit filed by one of its former nursing students, Xiaozan Anderson, now a client of this firm. The Complaint I filed on her behalf alleges that Viterbo breached its contract; acted arbitrarily and capriciously; and was unjustly enriched, by forcing Ms. Anderson to either drop her final clinical course or face expulsion from the nursing program just weeks before she was scheduled graduate. This was after she had paid over $100,000 in pursuit of a nursing degree.

The Complaint alleges that the nurse assigned by Viterbo to oversee Ms. Anderson's clinical course was not competent for the position and resented having to work for free. The nurse saw an opportunity to get out of the job by unfairly reporting Anderson's performance to Viterbo. The nurse ultimately quit the position, leaving Anderson without a nurse instructor. Anderson asserts that instead of forcing her to drop the course, Viterbo should have assigned a replacement, and it otherwise failed to give her a reasonable opportunity to clear herself.

The Complaint further alleges that the Viterbo kept the tuition Anderson paid for that course, and then made her pay again to retake the course, or she could not graduate. As a result of these actions, the student was unnecessarily delayed starting work as a nurse. She seeks damages for the unnecessary tuition and wage loss she incurred.

In arguing for dismissal, Viterbo's lawyers asserted that the courts of this country, citing public policy concerns, simply do not allow such claims by students against institutions of higher learning. It warned that allowing this case to go forward could "open the flood gates" of litigation by students.

I agreed that many courts have been reluctant to "second guess" teachers' evaluations of student performance. However, I clarified that Ms. Anderson was not asking the court to reassess her performance in the class. Instead, she paid for, and Viterbo had agreed to supply her with, an instructor for the course. It failed to do so at the outset, and it failed again when it did not provide a replacement after the instructor quit without cause. This breached Viterbo's implied obligation of good faith and fair dealing under the contract.

The judge agreed that the Complaint stated a legal claim against Viterbo, and that the case could go forward. The judge added that Viterbo could avoid "opening the flood gates" by changing the way it handles such situations.

My further thoughts:
The costs of higher education have skyrocketed in the past 15 years. The stakes are commensurately higher for the students. There have also been a proliferation of 'for profit' schools glad to take the student loan money. The courts, which have been generally reluctant to get involved in lawsuits against institutions of higher learning, will be rethinking and drawing the lines regarding what kinds of lawsuits are viable. I am happy to do my part.

LANDMARK CASE, WALL v. PAHL, IS PUBLISHED AND FINAL

10/3/2016

In late August, I notified you of our great success in the Trempealeau County, Wisconsin, Circuit Court case, Wall v. Pahl. Wall sued my clients, alleging they breached Wisconsin Statutes pertaining to health care record confidentiality while employed at a local clinic.

After being hired, I immediately filed a motion to dismiss with the Trempealeau County Circuit Court, where the lawsuit was filed. I was successful getting the lawsuit dismissed at the earliest stage possible, on the grounds that the Civil Complaint failed to state a claim under Wisconsin law. Wall appealed that ruling to the Wisconsin Court of Appeals. After I submitted a legal brief in opposition to Wall's appeal, the Court of Appeals affirmed the dismissal on August 30, 2016, releasing its decision in Wall v. Pahl, 2016, WI App 71. You can read a detailed analysis of the decision here, in publication by the State Bar of Wisconsin.

I have now been notified that the Wisconsin Court of Appeals has, in fact, ordered that Wall v. Pahl be a "published" decision. That means Wall v. Pahlcan be cited as binding legal precedent for later cases. The vast majority of Wisconsin Court of Appeals cases are unpublished and cannot be cited as biding precedent.

Furthermore, more than 30 days has passed since Wall v. Pahl was released. Therefore, it cannot be further appealed to the Supreme Court for the State of Wisconsin. That means this decision is the final word on lawsuits of this nature in the State of Wisconsin.

Wall v. Pahl ruled that a patient cannot sue healthcare workers who access the patient's health information without the patient's knowledge or permission--even for non-work related purposes--so long as the healthcare worker has not disclosed the information outside the healthcare organization. The ruling will obviously have a state-wide impact. Moreover, because this issue is sure to arise outside of the State of Wisconsin, Wall v. Pahl will, no doubt, be cited as authority and have an impact in other state courts as well.

It should be noted that our clients denied that they accessed Wall's medical records without his permission.

Dyer Law Firm, LLC is a Civil and Criminal/OWI Law firm serving La Crosse County and surrounding areas. Despite its small size, it continues to make legal history.

DYER LAW FIRM, LLC, WINS APPEAL IN MEDICAL RECORDS PRIVACY LAWSUIT WITH STATE-WIDE IMPLICATIONS.

8/30/2016

The Court of Appeals for Wisconsin just issued its decision affirming the dismissal of a medical records privacy lawsuit against Gundersen Clinic and two of its employees. Dyer Law Firm, LLC, got the lawsuit dismissed last year, and then successfully handled the appeal, for the two employees. The La Crosse Tribune Article can be read here. The decision of the Court of Appeals can be read here.

In its opinion, which is recommended for publication, the Court of Appeals sided with us and ruled that a patient cannot sue hospital/clinic employees who looked at patient records without the patient's permission, when information in those records was not released to anyone else inside or outside of the hospital/clinic.

It should be noted that these defendants deny that the records were viewed without the patient's knowledge/permission. They assert the lawsuit was baseless in fact. In any event, I am glad we got the lawsuit dismissed on purely legal grounds at the earliest stage possible--and then kept it dismissed.

WALL v. PAHL pending final decision in the Court of Appeals.

6/24/2016

I have been notified that a decision will soon be released from the Wisconsin Court of Appeals in WALL v. PAHL. That case that will decide whether a Wisconsin patient can sue a Wisconsin healthcare worker for breach of health information privacy for allegedly accessing the patient's healthcare records without the patient's permission, even if the information in the records was not conveyed outside the healthcare facility.

I represented the defendant healthcare workers. Last year, I got the case dismissed almost right away by the Trempealeau County Circuit Court. The patient appealed that ruling to the Wisconsin Court of Appeals. I filed a brief opposing the appeal. The outcome of this case may have a state-wide impact. Stay tuned!

It should be noted that my clients denied that they accessed the records without permission.

6/23/2016

JUST IN: 'SCOTUS' RULES THAT POLICE DO NOT NEED WARRANT TO CONDUCT BREATH TESTS FOR BrAC EVIDENCE.

SCOTUS has just released its decision in the combined cases of Birchfield v. N.D.; Beylund v. Dir., NDDOT; and Bernard v. Minnesota. See it here. The decision is bound to disappoint many who fight for the rights of those accused of OWI/DWI/DUI, and it will certainly please law enforcement in MN and other states that continue to use breath testing as the primary BAC test.

First, and most importantly, SCOTUS, in a decision penned by Justice Alito, ruled that police are not required to obtain search warrants to request and conduct breath tests upon those arrested for impaired driving. Generally, the Court found that breath tests, unlike blood tests, are far less intrusive and less invasive. The Court also emphasized the hardship that would be imposed on law enforcement if police were forced to obtain a warrant in every case. This is a big departure from the reasoning in Missouri v. McNeely, 569 U. S. ___, ___ (2013), the case that ruled that the warrants must usually be obtained for BAC blood draws, despite any convenience that causes.

The Birchfield decision upholds the reasoning of the lower court Supreme Court for the State of Minnesota in Bernard, which found that a breath test is a "search incident to arrest" (like a search of the clothing of an arrested person). That particular reasoning made no sense to many legal scholars who, like me, believed SCOTUS would never adopt it.

In Wisconsin, and especially in La Crosse County, breath tests are usually only requested in non-criminal, 1st Offense cases. If there is a refusal to give a breath test, then no test other test is usually requested, and the person is hit with civil license penalties only.

On the other hand, Minnesota, ND, and other states, have statutes that make it a crime to refuse BAC testing. It was believed these statutes would be found unconstitutional because they criminalize something people have a right to do, i.e., insist on a warrant. For Minnesota, and its breath tests at least, that did not happen. But the decision also makes clear (thankfully) that people cannot be punished criminally for refusing blood tests.

It is important to note that blood and urine testing have been treated differently in recent appellate rulings in Minnesota, which cases are now up for review before he Minnesota high court. The case involving blood testing, Minnesota v. Trahan, will be resolved by the Birchfield decision.

There is much more to report on this decision after it has been thoroughly scrutinized. But for now, it appears that Minnesota's 'criminal refusal' statute, at least in relation to breath testing, remains constitutional. RATS!!

RECORD # OF CONVICTIONS OVERTURNED IN 2015

2/5/2016

"When jury trials become team sporting events, we ALL lose."

This article from the NY Times illustrates the serious flaws in the criminal justice system, allowing many innocent people to be convicted and imprisoned. Meanwhile, the Netflix series, Making a Murderer, has swept the nation, opening the eyes of scores of people to the potential for serious miscarriages of justice.

This is a good thing, because as someone who has defended many people charged with serious crimes, I have seen first-hand how the egos of prosecutors and their "professional witnesses" in law enforcement can undermine the search for the truth and, ultimately, subjugate justice. The blinders go on. The goal becomes putting a win on the board, not letting the "other guy" get one over on. Some elected judges, unconsciously or not, become a "second chair" for the prosecution (Their most important endorsement is "law enforcement"). When jury trials become team sporting events, we ALL lose!

Most importantly, many jurors come to the courtroom conditioned with the notion that the police and prosecutor are the "home team", are inherently trustworthy. Thus comes the mindset: "The defendant must have done something, or he wouldn't be here. If the evidence is good enough for them, it's good enough for me."

Such jurors can often be weeded out in jury selection, and thankfully, most cases where acquittal is in order do result in "not guilty" verdicts. Nonetheless, more than ever, we need those "12 angry men" (and/or women). So I think a healthy dose of cynicism is the best antidote to prevent these injustices. But, as always, don't forget to bring one more thing to court: A damn good defense attorney.

NEW STUDY REVEALS SHOCKING CRIMINAL SENTENCING DISPARITIES IN WI COURTS

12/1/2015

"THE SCALES OF JUSTICE OR A ROULETTE WHEEL?"

A newly released study by the Gannett news agency proves what most criminal defense lawyers in Wisconsin already knew: The length of a convicted person's sentence can largely depend on which county their case is in, and/or by which judge sits for the case.

Every case is different, but most will agree that fairness in sentencing requires some degree of uniformity. However, the study shows wild differences in the type and length of sentences from one county to another and, worse, from one judge to another within a county. The study is aptly titled "The Scales of Justice or a Roulette Wheel?" I am wondering if this may result in a new push for uniform sentencing standards or guidelines in Wisconsin.

The Gannett study mined sentencing data for various crimes from "CCAP" (the online automated circuit court access program) at https://wcca.wicourts.gov/index.xsl This allowed the authors to compare sentences for various categories of crimes, and sentencing judges, in a manner that appears to be highly objective and accurate.

Defendant's in Wisconsin criminal cases have an opportunity to substitute the judge assigned to their case. See Wis. Stat. s. § 971.20. As the study reveals, such is the disparity in the length of sentence from one judge to another in some counties, that it would seem to be blatant malpractice to not substitute the harsher sentencing judge. Of course, then you also have to know--with some certainty--which judge will inherit the case, lest the client go 'from the frying pan to the fire.' The process of judicial assignment is usually not random. As is the case at the La Crosse County Circuit Court, the courts are allowed to assign a case to the next most substituted judge(s) in order to "equalize" the caseload.

I always take care to closely analyze the likely-assigned judge, and likely-substituted judge. This is information a client must have to make an intelligent decision on whether to substitute a judge or not. Many times, in cases I take over from other lawyers, this important issue was overlooked altogether.

With cases that I know have the potential for prison, I have in the past commissioned my own sentencing study, using a similar mechanism used by the authors of the study, to determine the range of sentences for certain crimes in Wisconsin. It provides an objective basis to keep judges focused on fairness. The hope is to eliminate the subjective resources--such as the so-called "Pre-Sentencing Investigation" ("PSI") reports often relied upon now by Wisconsin judges. These reports, in my opinion, are often hastily prepared, rarely have much "investigation" underlying them, and are merely one corrections officer's "gut" opinion on what should happen in a case. These reports are given far too much weight, and they inject even more randomness into an already unpredictable process.

Of course, I most always know what to expect in the La Crosse County, Trempealeau County, Buffalo County, Vernon County, Monroe County, and Crawford County courts. But when the case is in a Wisconsin county that I do not practice in a lot, I talk to the lawyers in that county, and reach out to local attorneys on a "list serve" for input on the judge(s). Now, however, I will first be looking at the Gannett study.

MJ USER ALERT: DRUG-SNIFFING POLICEMAN

10/2/2015

Warning: Reading this article may cause The Cranberries song, "Linger", to play in your head all day.

In State v. Martin, a (thankfully) unpublished opinion released on September 30, 2015, the Wisconsin Court of Appeals ruled that police are justified in seizing and investigating people who have the smell of "raw" marijuana connected to them. In Martin, the police entered a tavern during an unrelated investigation. Officer Franklin was outside the tavern's bathroom when Martin exited it and walked past. At some point, Franklin entered the bathroom to look for someone else. He reportedly smelled the odor of "raw" marijuana in the bathroom. He searched the bathroom for evidence of marijuana and found nothing. The smell of raw marijuana was reportedly "confirmed" by "several" other officers, including Officer Pierce. Franklin did not observe anyone else exit the the bathroom after Martin. He confronted Martin at the bar, and Martin eventually confessed to possessing marijuana. A search of his person produced marijuana, cocaine, and paraphernalia.

Martin challenged the officer's actions on the grounds that he lacked a reasonable suspicion to detain him for an investigation. Both the trial court and the Court of Appeals ruled that Franklin, in light of the totality of the circumstances, had a reasonable suspicion to detain Martin. The Court of Appeals wrote, "Applying the law to the instant matter, the police had reasonable suspicion so as to justify the brief detention of Martin. [Officer] Franklin’s detection of the odor of marijuana in the bathroom, which [Officer] Pierce confirmed, gave the police reasonable suspicion to believe that a crime had been or was being committed."

Since 2009, in Wisconsin, unpublished decisions can be cited for their "persuasive" value. Wis. Stat. § (Rule) 809.23(3). This decision strikes me as particularly dangerous precedent. It also leaves me with number of "lingering" questions: First, if the odor of "raw" marijuana is so strong that it can linger in a restroom long enough for "several" officers to confirm it, could it not have also lingered long enough to belong to some other user of the bathroom? Therefore, is everyone at the tavern a suspect? Second, if the odor of "raw" marijuana is so strong as to linger so long, would not the officer have smelled it on Martin when he was speaking directly with him, especially since he has such a remarkable nose? Lastly, why do the Oshkosh Police have so much time on their hands?

This case is proof that if you truly want to avoid a criminal conviction, don't ever have MJ on your person. Great, now I'll have The Cranberries song, "Linger" playing in my mind all day.

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