Even if MJ is someday legalized in Wisconsin, its users--and perhaps those around them--will still be in jeopardy of OWI if they are driving in Wisconsin.  Wis. Stat. section 346.63(1)(am) has been around for years.  That law makes it an OWI to drive/operate a motor vehicle with any detectable amount of a "restricted controlled substance" in the blood.    

The Wisconsin Court of Appeals ruled Wednesday, in State  v. Michael R. Luedtke, 2013AP1737-CR, District 2(recommended for publication), that it does not matter how that restricted controlled substance got there.  Constitutional "Due Process" does not require prosecutors  to prove that a detectable restricted controlled substance was voluntarily consumed.  The statue, the court found, is a "strict liability" offense, and does not require a "scienter" element (willful use or even knowledge that the substance might be present ) to pass constitutional muster.

An earlier case, State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474, had already ruled that section 346.63(1)(am) was constitutional even though it does not require some showing of impairment from the substance.  Therefore, Luedtke's evidence that cocaine has been found on 90% of US currency, and in fresh water lakes in MN, fell on deaf ears.  And Smet's argument that you could have THC in your blood from mere contact with MJ smoke was equally ineffective.

You might be surprised to learn that Wisconsin's definition of "restricted controlled substances" includes Delta 9 THC, the active component of Marijuana.  Wis. Stat. s. 340.01(50m)(e).   Cocaine and cocaine metabolites are also included.  While Delta 9 THC generally leaves the blood after several hours, it can be present much longer for "chronic" (frequent, as opposed to the variety) users.   Therefore, a person with Delta 9 THC in their blood may or may not be high.  Other states, including Minnesota, do not include Delta 9 THC among their restricted controlled substances.  They require proof of actual impairment by THC.  

In my opinion, this law can lead to abuse by law enforcement.  I have seen cases where police stop drivers and then get to section 346.63(1)(am) through what I consider a fishing expedition.  For example, a driver pulled over for a tail light is field tested for alcohol after he admits to having a drink.  After going through the embarrassing road side tests and passing the PBT, the officer says, "I still think you are on something.  Any drugs in the car?"  Driver admits there is some MJ, but denies use that day.  Now comes the witch-doctory of the so-called "Drug Recognition Expert", or "DRE".  The findings, yellowish tongue, slight fever, red eyes, pupils, etc. 

Now our driver, stopped for a tail light, investigated for alcohol impairment, is arrested for driving with THC.  He is taken for a legal blood draw, which is sent out and gone for months for testing.  The officer asks for drug screening if the test for alcohol results under .08 BAC.  The blood results come back with with BAC at .03, NO detectable amount of Delta 9 THC, but detectable amounts of cocaine metabolites.  So the driver, pulled over for a tail light, investigated for an OWI, and arrested for driving with THC is, months later, charged under section 346.63(1)(am) for driving with a detectable amount of a completely unrelated restricted controlled substance in his blood. 

Remember, to pass the test for probable cause to arrest, police do not have to be right.  They just have to articulate enough facts to lead a reasonable officer to believe an offense is PROBABLY committed.  Even if they are later
proven wrong, that does not mean the arrest is unconstitutional.  And probable cause gets them a blood draw, which might turn up anything. 

Smoking MJ is still illegal in Wisconsin, and I am not condoning its use.  However, in my opinion, non-high MJ users should not be put into the same category as drunk drivers.  The law should change so that impairment by, and not just contact with, a restricted controlled substance is required.  Write your legislator.  

There is good reason to be skeptical about the prospect of challenging OWI stops and/or arrests given the manner these cases have been handled in the courts of appeal in this Country.  The "freedom-destroying cocktail" that was recently thrown in our faces by the Supreme Court of the United States in Navarette v. California wheeled out all the usual suspects that have led lawyers to coin the phrase "the drunk-driving exception to the Fourth Amendment."
Watching one after another "close case" go against the rights of citizens to be free from unreasonable seizures just about extinguished the fire under my boiler.  However, a new Wisconsin Court of Appeals case has rekindled my hope for fair interpretation of the Fourth Amendment in OWI/DWI cases.

Released yesterday, the Wisconsin Court of Appeals, District IV, overturned a Wood County Circuit ruling that an officer was justified in requiring field sobriety tests which resulted in arrest.  In an unpublished opinion in State of Wisconsin v. Gumersinda Gonzalez, the Court Appeals ruled that the odor of alcohol, without any other indicators of impairment, including bad driving, red eyes, etc., did not itself create a reasonable suspicion of impairment to allow the arresting officer to move to field sobriety testing.  However, it appears the ruling may have been the opposite if the stop would have occured at 12:00 a.m. or after, instead of 10 p.m.  

Essentially, the Court of Appeals found that the Wood County Circuit Court Judge erred by taking into account observations that were made after Gonzalez was removed from the vehicle.  The only observations relevant to expanding the scope of the seizure were those made before the request for field testing occurred.  As the one-judge opinion pointed out, “Not every person who has consumed alcoholic beverages is ‘under the influence’....”  WIS JI—CRIMINAL 2663.  Other unpublished opinions with similar circumstances, State v. Meyer, No. 2010AP336-CR, unpublished slip op. (WI App July 14, 2010), and County of Sauk v. Leon, No. 2010AP1593, unpublished slip op. (WI App Nov. 24, 2010), also supported that the odor of intoxicant, standing alone, was not enoug for field tests.

We will wait to see if the State further appeals this decision to the Wisconsin Supreme Court.  However, with three standing unpublished opinions, risking an authoritative published opinion would not seem their wisest choice. 

Some find it easy to blame complicated economic and societal problems on "greedy trial lawyers".  I admit, some product warning labels I have encountered seem pretty silly.  However, when I consider that many warning labels result from dead children and inconsolable parents, it doesn't seem as bad.  The fact is, many of the safety enhancements we rely upon to protect us from needless death or serious injury came about because of lawsuits filed by lawyers.  Without lawsuits, we may be left to rely upon manufacturers to do the right thing, or upon "the government" to uncover the problem and protect us.  I don't feel comfortable with either scenario.

Many of us remember the example of Ford Motor Company and their "exploding" Pintos.  Ford reportedly decided that there was an acceptable number of people who could burn to death in its vehicles.  Retrofitting a design
alteration would have prevented gasoline from saturating Ford's customers during rear-end collisions.    

Prior to a month ago, we were probably thinking such a thing could never happen in modern America.  Then we find that GM has over the last 9 years been hiding an ignition defect at the expense of its customers' lives.
 (Two weeks ago Toyota was ordered to pay the biggest fine ever levied for its "sudden acceleration" antics.)  What is not widely know or appreciated, however, is that a trial lawyer, one Lance Cooper of Georgia, is almost single-handedly responsible for uncovering GM's deception.  NHSTA, the governmental entity we rely upon to discover and protect us from such defects, never connected the dots.  It took a trial lawyer, presumably one trying to get money, to bring this atrocity to light.  Watch this video to learn more. 

I am not apologizing for all trial lawyers, and I have a GM in my parking stall.  However, when it comes to the role of trial lawyers in our society, I don't see things so nearly black and white.   Money is a great motivator, and if that helps save lives, so be it. 

As of October 2013, 200,000 concealed carry permits were issued in Wisconsin, and 5,800 applications were denied.    One denied applicant, Robert Evans, Jr., appealed.  The Wisconsin Court of Appeals has now ruled that he will not be getting his concealed carry permit, thanks to his 2002 conviction for Disorderly Conduct, contrary to Wis. Stat. 947.01.   Read the full opinion here.  Evans can still petition for reivew of the decision, but as the saying goes, "If you want to win an appeal, be the appellee."  This is especially true after losing at the first level.

The Court of Appeals determined that Mr. Evans' conviction for Disorderly Conduct fell within the gun ban of the Federal Firearms Act as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A).  The court looked at the conviction and determined that it involved "use of physical force" because, examining the "limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions", the first "element" of his conviction involved “violent, abusive and otherwise disorderly conduct.”  According to the court, the fact that Evan was convicted of "violent abusive and otherwise disorderly conduct" made it "a relatively easy case."

Importantly, the court kept the door open for those cases where the first element was stated "in the disjunctive", meaning it was stated as "violent, abusive, or otherwise disorderly conduct."  In my experience, the elements in La Crosse County and surrounding counties have almost always been stated that way.  There is still hope.

Another issues in Evan's appeal was whether his step-daughter, the "victim" of his offense.  The statue covers "a
current or former spouse, parent, or guardian of the  victim, … a person with whom the victim shares a child in common, … a person who  is cohabiting with or has cohabited with the victim as a spouse, parent, or  guardian, or … a person similarly situated to a spouse, parent, or guardian of the victim."   The issue was whether Evans was  “similarly situated” to a parent.  The court, construing the statute broadly, determined that he was.  It also made clear it would not look at the intricacies of the relationship to determine whether the step-parent was an parental figure.

If you want to possess a firearm again, let alone have a concealed carry permit, the most important thing is to simply avoid a conviction for Disorderly Conduct.  Many are lured into a plea thinking it will be a fine only.  There are often long-term consequences.   If you are never convicted, you don't have to spend years of time and energy parsing words with your lawyer trying to get your rights back.  However, as this opinion suggests, if you are convicted of DC, then parsing words may be exactly what you want to do.  The way the first element is/was framed may affect whether you fall within the dreaded gun ban.

THIS ARTICLE REFLECTS THE OPINIONS OF THE AUTHOR ONLY

You may have read my articles detailing my distrust of Avvo and its easy-to-manipulate attorney rating system.  A couple recent Avvo stories really emphasize just how out of control it is--and made me laugh my ass off.  

The first--and funniest by far--is the story of "Goat Lawyer".  Apparently a Minnesota attorney converted his own Avvo profile into "Goat Lawyer".   Complete with his goat photo, he put a bunch of time into creating a profile and CV for the barnyard figure, including a host of goat-related articles and accomplishments, including a fake Creighton Law Review article, “Reexamining EPA Regulations Regarding Plastic Fencing, BPA, and Chewable Contours of the Farm”, and a Minnesota CLE speaking engagement, “Tech Tools for Lawyers, Goats, and Canaries.”.  

How did Avvo rate  Goat Lawyer?  "Superb" 9.2 rating.  Hilarious, if it wasn't so sad.  Of course, Avvo will probably explain that it has no control over people lying.  Good out?  Hardly.  Avvo sucks, in my opinion. 

Need more?  How about the Avvo peer endorsement racket I complained about in my earlier post?  A case in point:  Howard Lewis, a Massachusetts attorney who personally endorsed more than 9,000 attorneys.  He's not the only one, at the time of this article, Christian K. Lassen II, has 1,026 endorsements of himself.  He has endorsed lawyers from sea to shining sea on Avvo.  

Endorsement fishing is a practice whereby lawyers give other lawyers--sometimes scores of them--a good endorsement in hopes that she/he will reciprocate with a good endorsement of them.  Some extreme cases illustrate the potential abuse of Avvo's peer rating mechanism, which tempts some lawyers to artificially increase their so-called "Avvo rating" by racking up peer endorsements.   

If you see a lawyer or law firm bragging about their so-called Avvo rating, consider the source.  

 Prior to  Wednesday, here is what we knew:  In Wisconsin,  a first-offense OWI is a civil citation, or "forfeiture", case.  A second-offense OWI is a criminal charge if the driving occurs within 10 years of the driving that gave rise to the first OWI conviction.  Conversely, If the second OWI occurs outside the 10 years, it is a first-offense again.  So, a person can have two "OWI 1st" charges (but never three).  We'll call the second one an "OWI1st 2nd".  

For first-offense OWI convictions, where the BAC is .15 or greater, the court must order that an interlock ignition device ("IID") be installed in any vehicle driven, owned or registered to the defendant.  Wis. Stat. § 343.301.  An IID must be ordered for all criminal second or greater OWI's .  However, what about when a person is charged with OWI 1st because the first OWI was more than 10 years ago?   That guy doesn't get the IID if the BAC was less than .15, right?  The Court of Appeals answered that question just this Wednesday, January 29th, in Village of Grafton v. Eric L. Seatz, 2013AP1414.  I am guessing Eric L. Seatz doesn't like the answer.

According to the Court of Appeals, when it comes to the IID, a first-offense OWI isn't a first offense if it isn't a real first offense.  The court wrote:

"The ten-year look-back provision in Wis. Stat. § 346.65(2)(am)2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of whether a person has one or more prior OWI
convictions under Wis. Stat.§ 343.307(1) and has no effect on orders for ignition interlock devices under Wis. Stat. § 343.301. The different language of §§ 346.65(2)(am)2. and 343.301(1g)(b)2. indicates that the legislature had
different intentions for how each statute treats prior OWI convictions."  Seatz, 2013AP1414, par. 7.

Many in Wisconsin have decried the civil nature of the first-offense OWI, arguing that it's too easy on the offender and diminishes the seriousness of the offense.  The Court of Appeals has made it a tougher on the second "first-offense" driver.  Having an IID order means paying around $1,000 in equipment rental fees for each vehicle subject to the order--not to mention all the stigma involved in having one of the things in your car.  More than ever, there is reason to fight your "OWI 1st  2nd." 

Further proof that police officers are human:  Two off-duty Sheboygan, WI police officers were placed under arrest for OWI early Thursday following a rear-end car accident invloving their vehicles.  According to the La Crosse Tribune, their respective BAC's were .10 and .23.  It is not clear whether the two officers were drinking together, though that seems likely, or it was a huge coincidence.   It is clear that one was drinking  a lot more than the other.  Apparently, enforcing  the law does not necessarily mean obeying it.     

The Supreme Court of Minnesota, in State v. Brooks, today affirmed the lower court rulings in Wesley Eugene Brooks's
three (yes, he was a busy guy) separate DWI cases today.  The Court also tacitly ruled that Minnesota's Implied Consent law, which states that it is a crime to refuse BAC testing, is constitutional, though merely holding that Brooks did not show it was unconstitutional.  That said, the Brooks decisions leaves a lot of questions unanswered. 

The Court's ruled that, under the totality of the circumstances, Brooks had "consented" to supply his urine and blood to police following his arrests.  The Court found there was consent even though Brooks agreed to the tests after specifically being told it was a crime to refuse.  Because he did not refuse, but instead "consented", the police did not need to obtain a warrant.  The Syllabus of the decision states: "When, based on the totality of the circumstances, appellant consented to the search, police did not need a warrant to search appellant’s blood or urine." 

In reaching its decision, the Court emphasized that there was nothing in the record showing that Brooks was, in fact, agreeing to test only because he was told refusal was a crime.  It also emphasized that fact that Brooks had consulted with an attorney on the phone before agreeing to test.  This leaves open the possibility that the result could be different for the guy/gal who said, "I agree to test, but only because I'll be charged if I don't."  I know there are lots of people who said words to that effect, and so such an appeal will no doubt be coming soon.

The Court's decision makes clear that a person is not legally coerced simply because he/she is told it is a crime to refuse.  The Court attempts to explain, as other courts before it  have, that it is not coercive or deceiving to merely tell a person what the ramifications of their choices will be.  After all, the person is given the choice to refuse, albeit with criminal consequences.

To me, that explanation requires a great deal of pretending.  To begin, the focus is only the behavior of the police, and not the effect on the subject.  The State had the burden of proving Brooks's consent, not there other way around.  There is a presumption against the loss of constitutional rights.  So where did that occur in this case?  The real issue-- the actual effect of the words that everyone agrees was read to Brooks, "refusal to take a test is a crime"--is just sidestepped.  In my opinion, the old adage that there is an "OWI/DWI exception to the constitution" has more force after today.

Thankfully, this was not lost on Justice Stras, whose concurring decision stated, "It is hard to imagine how Brooks’s consent could have been voluntary when he was advised that refusal to consent to a search is a crime."  Justice Stras concurred only that the BAC evidence should not be suppressed, because at the time the blood and urine were obtained, the police were operating on state case law that permitted warrantless blood draws in all Minnesota DWI cases, based on exigent circumstances.  Basically, he believed the "good faith" exception decided the case. 

The argument that everyone who drives has consented ahead of time was discussed but not resolved in this case.  When "consent" takes place is something left for later cases.  However, since the Brooks Court analyzed consent at the point of the Implied Consent decision, and not the time of obtaining a driver's license or driving, it seems awful
inconsistent for anyone to now assert that consent happens at an earlier time.  After all, the Court determined that Brooks had consented, not that he had withdrawn his prior consent. 

As mentioned, the Brooks Court also rejected Brooks's argument that the Minnesota Implied Consent statute was unconstitutional.  In so holding, it recited language in Missouri v. McNeely that can be viewed as approving of implied consent statues generally. 

Overall, the Brooks case does not give the Minnesota Implied Consent statute a free pass.  Instead, the focus will be on the individual circumstances surrounding the supposed consent, something that many District Court judges with cases awaiting this decision will no doubt lament.

The Minnesota Supreme Court will issue its decision in State v. Brooks tomorrow, October 23, 2013, at 10 a.m.  The
decision is expected to provide much-needed guidance to the MN District Courts, which have split on what the landmark decision, Missouri v. McNeely, means for people who have been BAC tested for blood, breath or urine under the Minnesota Implied Consent Law, especially those who have been tested afterMcNeely's release in April.  The case is of such importance that the MN Supreme Court expedited its review after it was remanded by the Supreme Court of the United States.     

You can find the Brooks decision here tomorrow.  I can't wait to read it and supply some analysis.

If you are ever charged with criminal Disorderly Conduct under circumstances that are considered "domestic", you could lose your right to possess or purchase a firearm for life.  Robert W. Evans Jr. found that out.  He is appealing the Wisconsin DOJ's denial of his application for a concealed carry permit.  His application was denied because he was convicted in 2002 of criminal Disorderly Conduct relative to an incident involving his adult stepdaughter, whom he reportedly admitted he had "pushed."    

Disorderly Conduct, or "DC", is prohibited by Wis. Stat.  947.01, which outlaws "engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance." (emphasis added.)  This is unbelievably broad language, and unbelievably, it has survived a constitutional challenge on the grounds of overbreadth.  When it comes to disturbances, I tell people, "If the police arrive and you were one of the reasons they are called, you could be arrested and charged with DC."    

Many, many people pleaded guilty or no contest to Disorderly Conduct believing it was just a minor offense.  Like Mr. Evans, they later got a rude awakening.  Not only can their applications for concealed carry be denied, but they could be charged criminally for possessing a firearm, under the Federal Firearms Act.  Attempts to undwind the conviction on the grounds that they were unaware of the ban when they pleaded were rejected, on the grounds that the ban is a "collateral" consequence of the conviction and not, therefore, grounds for a "do over."

Since 1996, the so-called Lautenberg Amendment to the Federal Firearms Act has prohibited gun possession by anyone convicted of a misdemeanor that "has, as an element, the use or attempted use of physical force, or the 
threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."  18 U.S.C. §921(a)(33)(A), (g)(9) (emphasis added.).

A recent 2nd Amendment challenge to the federal ban did not end well in the 7th Circuit Court of Appeals for Steven Skoien, a man convicted of DC and, subsequently, the federal act. The challenge to the Wisconsin DOJ's application denial is not 2nd Amendment based.  It hinges on interpretations of the language of the federal statute and Wisconsin Disorderly Conduct statute.  The arguments by the appellant and DOJ are quite complicated, but can be accessed here (Appellant, Respondent, Reply) if you want to try to follow them. 

My thoughts?  Don't get convicted in the first place.  I have kept many people charged with Disorderly Conduct in La Crosse County and surrounding counties from losing their 2nd Amendment rights.