Socialite Kerry Kennedy, daughter of the late Sen. Robert Kennedy and former wife of New York Governor Andrew Cuomo, was allegedly involved in an impaired driving accident on July 13, 2012, in Westchester County, New York.  A witness reported to police that she had no control over her vehicle has she was driving down the highway.  A subsequent blood analysis revealed levels of Zolpidem, which is the sleeping drug marketed as Ambien.  Kennedy claims she is not legally responsible because she took Ambien by mistake instead of her thyroid medication.  

"Lame excuse", you say?  I call it a great defense.  In fact,  fully expect it to be successful, since there were apparently no other  impairment-causing substances reported in her system.  I have gotten impaired-driving charges dismissed the same way. 

These so-called "sleep driving" cases have become more prevalent in recent years as more people reach for the powerful sleeping drug.  People with Ambien prescriptions often have other prescribed medications.  Accidents happen, and so the wrong pill can be swallowed.  Persons awake while on Ambien are often described as being in a hypnotic trance.  When this occurs, the defense of "involuntary intoxication" may be viable.  After all, it is not much different than the person who becomes impaired after being "slipped" a drug in their drink.  You wouldn't hold that person responsible if they suddenly became impaired while driving home.

Another way to attack it is to show that the act of driving was "involuntary" because of the effects of Ambien.  This
defense could be asserted even by drivers who intentionally became drunk but later took Ambien and somehow made it behind the wheel.  It is similar to asserting that a crime occurred while sleep walking.  In fact, the Supreme Court of Oregon recently ruled, in Oregon v. James Robert Newman, a 6-0 decision, that involuntary driving due to a sleep walking disorder is a viable defense.   However, Wis. Stat. § 939.42(1) provides that an intoxicated or drugged condition is a  defense if it is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at  the time the act is committed.  It would seem to include this fact pattern.

A  variation of this defense, which is more difficult case to make, is the "sleep drinking" defense.  In that scenario, the driver agrees that there was impairment due to alcohol but maintains that the drinking that caused the impairment was involuntary due to the hypnotic effect of Ambien.  This could also be framed as involuntary intoxication.   I have yet to see that defense play out.

These defenses are far different from the defense of "voluntary intoxication", wherein a defendant admits he/she
purposely became impaired but claims the impairment was so great that it rendered him/her incapable of forming the "intent" necessary to commit the crime.  That defense is now being played out in the appeals of Martin Heidgen, Taliyah Taylor and Franklin McPherson, also in the state of New York.  These defendants were all convicted of charges stemming from fatal crashes while driving in the wrong lane while drunk.  The law they were convicted under required that they acted with "depraved indifference to human life."  They claim their level of impairment prevented that mindset.  Like the defense of voluntary intoxication generally, that is a very tough sale, if you ask me.

I am a lawyer licensed in the State of Wisconsin and Minnesota.  I regularly practice in the field of OWI/DWI/DUI Defense.  However, none of my commentaries are ever meant to be legal advice.

Police Lt. Brian Thomson "resigned" on August 13th after reportedly being caught dipping into drugs in the evidence room at the La Crosse Police Department.  He appeared in court on August 14th for a bond hearing, but he has not been in court again.  He was supposed to be in the La Crosse County Circuit Court yesterday to face charges following a delay on August 30th.  However, if you search for his name on CCAP, you will not find a case for Brian Thomson yet.  Charges have now been delayed to October 23rd.  According to the La Crosse Tribune, Thomson's attorney cited "medical reasons" for the new delay.  

This is not your typical case, for sure, with judges and prosecutors having to bow out due to conflicts caused by their connection to the former policeman.  However, to date, Thomson has done a great job avoiding the courtroom, particularly since persons facing felony charges are typically required to be present in person for court hearings, aside from mere status conferences.  Maybe he'll be in court on October 23rd(?)

The La Crosse Tribune and the Police Department reported today that Brian Thomson's illegal activities were detected through a "sting" operation at the department, reportedly using "fake drugs."  In other words, he was set up.  The activities uncovered by the sting led to an "audit" of the evidence room which revealed additional "manipulations" of evidence, as reported in an earlier blog below.  At this time, it is completely unknown the quantity of evidence that is affected by the "manipulations", or whether that can even be determined. 

Evidence rooms are sacrosanct from the standpoint of the integrity of evidence.  The fact that there was some sort of known tampering going on could potentially rasise questions about every piece of evidence in the room, particulary if it is of the type tampered with.  Once has to wonder how long this has been going on before being detected.  If it has beeen going on for some time, how could that even happen? 

La Crosse County District Attorney, Tim Gruenke, has announced that the discovery of "manipulation" by an officer in the evidence room at the La Crosse Police Department has resulted in an audit which has in turn exposed more "manipulation" of evidence.    His news release this morning was in an email to the La Crosse Area Criminal Defense Lawyers (LACDL) and the La Crosse Public Defender's Office.

 This is obviously a shocking revelation.  At this point, it is speculative, but my reading is that there is likely a connection between this audit and the recent arrest of La Crosse Police Lt. Brian Thomson.   If there was tampering of the seals, it may have been from drug use.  To date, the full details of the activities of Lt. Brian Thomson have not been revealed.  See my earlier blog regarding that situation.  He is scheduled to return to court on October 2nd.  Something tells me there may be more delays.

We will be watching these situations very closely and will report further details as they become available.  In the meantime, I applaud Mr. Gruenke for alerting us to these issues.

I recently happened upon a case involving a local police officer that raised my eyebrows.  It certainly seemed newsworthy, particularly considering what  often poses for news around here.  However, there was never any mention of it in any of the local news outlets.  The circumstances also made the basis for criminal charges, though it does not appear any such action was ever taken.  Since the La Crosse Tribune, WKBT, WXOW, and WIZM either did not report or missed this story, I thought I would put it out there for you, or it "never happed" (WIZM's slogan is, "If you don't want to hear about here, don't let it happen.").  But first, let me make some observations:

We should all have the utmost respect for the police.  They put themselves in harm's way to keep the peace and protect us and our property.  However, occasionally an officer behaves in a way unworthy of our respect, which tarnishes the badge for all police.  When such a thing occurs, equal treatment in the law is critical.  Favoritism in the law is repugnant to our sense of justice and fair play.     

When you think about it, one of the major roles of a police officer is "professional witness."  They are out in the field making observations that support their arrests.  When the charging document, called a Criminal Complaint, is issued, it frequently is bolstered by the arresting officer's own incident report, which then serves as the "factual basis" for the charges.  The factual basis must establish "probable cause" for the charges in the Complaint, or the charges must be dismissed.  A formal "complainant", usually a county deputy, will often make a statement in the Complaint vouching for the credibility of the officer making the report.  Ultimately, unless a prosecutor has a credible witness to go to trial with, he/she has no case.  Police make GREAT witnesses for the prosecution, because jurors' may have a psychological indebtedness to them for all they do for us.  Police MUST be honest for the system to work. Now, on to the story:

In December 2012, I was informed by a La Crosse County Assistant District Attorney that James Hackett, a principal prosecution witness for one of the cases I was defending, had "resigned" his position as a patrolman for the La Crosse Police Department.  I was told the resignation stemmed from lying to the police during an investigation.  Incredibly, the ADA stated that Hackett was still going to be used as a witness in the cases that had been charged before his resignation. 

I assumed I would be able to  learn further details from the local newspaper.  That never happened.  So, I drafted an open records request and was given the reports relative to the incident.  You can read the full reports below.

According to the reports, Hackett's then live-in girlfriend was intentionally locked out of Hackett's residence during a   party hosted by Hackett.  Apparently, she was very intoxicated and causing trouble, so one of the guests locked her out.  She was wearing a skirt and had no shoes on.  A neighbor eventually called the police due to the commotion she was making outside.  It was after Midnight.

When Hackett's fellow officers arrived, they found Hackett's pistol, a ".380", and a holster laying in his yard.  The girlfriend said she was standing outside the front door holding the handgun up and yelling to get back in the house.  She claimed she got the gun out of his car glove box using the key she kept on her person.  She said the gun was always kept there.  She claimed she had been drinking "UV Blue" vodka at the house, and that Hackett had provided it to her.  She was NOT of legal age to drink.

This is my opinion only, but my reading of the reports is that Hackett fed the police a total cock-and-bull story to cover his rear.  First, Hackett told the police that he never furnished alcohol to his underage girlfriend.  When he was confronted with a text message he sent to the girlfriend stating he had purchased UV Blue vodka for her, he told them he bought it but was holding the vodka until her mother arrived (Wisconsin allows underage consumption of alcohol if a parent is present and agrees).  He told them that her mother was supposed to meet him for the first time that night.  His girlfriend had no knowledge of this.  She was surprised Hackett said that, because her mother lived in Pennsylvania.  The police later spoke with her father, who confirmed that they live in Pennsylvania and no plans to meet Hackett that night in Wisconsin.

Hackett also told the police that his girlfriend had been out somewhere else and returned home intoxicated.  He was unable to explain why she would be gone in the first place, because her mother was supposedly scheduled to come over to meet him.  He said when the girlfriend arrived, he told her she had to leave.  She left and came back.  He said he eventually had to lock her out when she refused to leave.  Perhaps worrying that he might be seen as encouraging drunk driving (with his own car at that), he explained that he thought her mother had picked her up.  Lies beget lies.

It gets worse:  Hackett also told the police that the first time he knew his girl friend had his handgun was when the police arrived and showed it to him in the yard.  However, the police questioned him about a text message he wrote prior to their arrival which said, "where is the .380".   Nonetheless, Hackett maintained that he was not looking for the gun prior to their arrival. 

With regard to how his pistol ended up on the front lawn, Hackett told the police that his girlfriend must have taken it from the upstairs of his residence without his knowledge.  He said he was sure it was stored under his bed.  He also told the police that the couple had an argument two weeks prior.  During that episode, she got his gun out.  While she did not threaten him or her, he "contacted her wearing a bullet resistant vest. "  That time the gun had been left out on his desk.  I guess he didn't learn any lesson from that episode.
 
Hackett was allowed to resign from the police force.  Despite strong evidence that he furnished alcohol to the girlfriend, his repeated lies to cover up for furnishing the alcohol, not to mention gross negligence in the safekeeping of his gun, he was not arrested, cited or charged with anything.  Keep in mind, lying to the police is "Resisting or Obstructing", a Class A Misdemeanor punishable by 9 months jail and/or a $10,000.00 fine.  Wis. Stat.  946.41.  Not only that, he was referred to as the "victim" in the reports. 

His girlfriend was arrested on charges of Disorderly Conduct with a Weapon. Wis. Stat.  947.01(1) & 939.63.   A subsequent report stated she should be arrested for bail jumping because she repeatedly texted Hackett that very day, after just being released with a "no-contact" on her bond.  However, according to CCAP, an underage alcohol citation is the only charge issued to her.  CCAP further notes that the citation was transferred to City court.  The ultimate disposition is unknown.

These police reports had to have been looked over by a prosecuting attorney to determine whether--and what--charges should have resulted from these events.  Now, I'm just spit-balling here, but it seems that this outcome may have been quite different for the average citizen.

Former La Crosse Police Department Lieutenant, Brian Thompson, DID NOT appear in court on August 30th to face charges.  Instead, he appeared by his attorney.  I was there in court on another case.  From the discussion with Judge Elliot Levine, Thomson's attorney, and the prosecuting attorney, Assistant Attorney General Jeff Gabrysiak (Wisconsin DOJ), several things were clear:  (1) every La Crosse prosecutor and every La Crosse County judge, including Levine, has a conflict of interest and won't be directly involved in the case; (2) after more than two weeks from his arrest, no charges have been filed against Thomson--and none are immediatley pending; and (3) according to Gabrysiak and Thomson's attorney, discussions were continuing between the attorneys which may be "in the best interests" of  both the State of Wisconsin and the defendant.   

Judge Levine openly voiced concern about the fact that no case number had even been assigned to Thomson's court case, adding that this made things more difficult procedurally, even from the standpoint of assigning a new judge.  Thomson is scheduled to appear in the intake court in the La Crosse County Circuit Court on October 2, 2013.   Just who will be judge, or whether a judge will even be assigned, is at that point, totally unclear.  Does all this seem unusual to you?  It out to.  TRUST ME, this is not at all how most cases proceed through the courts.  However, this is also a rare case where a policeman is actually arrested.   

My take on this (my opinion only, and perhaps no secret):  This is an enormous public embarrassment for the City of La Crosse; law enforcement generally (including the La Crosse PD and the Wisconsin DOJ) ; and, of course, Brian Thomson.  The discussions may include David Thomson never appearing in court again on these charges, let alone pleading guilty to a felony.  Could the discussions include Thomson revealing information about other officers?  No idea. What will come to pass is pure speculation, because--YOU GUESSED IT--the details of the allegations against Officer Brian Thomson have not even been revealed.  There is no Criminal Complaint on file.  Moreover, not one so-called media outlet in La Crosse has been able to give any specific details regarding the arrest of the 15-year veteran of the La Crosse Police Department.   After more than two weeks, the details of the case have stayed between police and attorneys. 

At this point, the outcome of this case is, obviously, unknown.  However, it is not surprising that many are becoming pretty cynical about "the system" is when it comes to police officers who get in trouble.  I’ll be perfectly honest with you, I am becoming a little cynical about that too.  This is definitely not the only La Crosse Police Department personnel--or family member--to become involved in an investigation lately.  Does that surprise you?  It very well might!  Because while I have learned of and investigated these other cases, to my dismay, WKBT, WXOW, the La Crosse Tribune and WIZM radio, collectively "the news" in our area, have written/spoken nothing (NADA!) about them.  In my opinion, these agencies rely WAY TOO heavily on the police or the courts to feed the news.  There seems to be little actual investigation being done.   You might want to stay tuned to this Blog to see how some others connected with the police--others never talked about in the so-called press--have had their own legal situations dealt with.  You may be surprised--even pissed off!     

The La Crosse County Circuit Court has deemed September "Juror Appreciation" month.  I want to extend my own personal thanks to La Crosse County jurors, since I am most likely the private attorney with the most time spent in jury trials lately. 

According to the La Crosse Tribune, quoting the La Crosse County Clerk of Court. "2,832 people were summoned to serve on 36 jury trials last year in La Crosse County".  The Koula trial (double homicide), La Crosse's 'Trial of the Century', occupied 18 days, making it the longest trial in La Crosse County history.  I was a member of the defense team, along with attorneys Jim Koby and Keith Belzer.  I had another trial prior to Koula which resulted in Not Guilty on all charges.  I have had several trials since Koula, including a three-day trial wherein my client faced 75 years prison and was found Not Guilty of all charges except a  Misdemeanor Disorderly Conduct, which I told the jurors he was guilty of.  There was also an OWI 4th Felony that was dismissed outright after a mistrial, an OWI 3rd that was amended to a mere Reckless Driving half-way through the trial, and a Not Guilty verdict on a .22 BAC charge.  These are just the ones that went to trial.  

Indeed, we at Dyer Law Firm, LLC have much to thank La Crosse County jurors for.  The time we spent in trial will only translate into better results for our current clients, and those to come.  Before you hire another attorney for your case, ask him/her when the last time they won a jury trial was.

The rulings are rolling out in DWI cases in Minnesota where motions for suppression are being raised in light of the recent Supreme Court of the United States ("SCOTUS") ruling in Missouri vs. McNeely.  The outcomes of these rulings are quite polar, as demonstrated by the two examples below. 

In the first example, an Anoka County case, the defendant's motion is granted, and test evidence is suppressed.  In that case, the positions and reasoning of the defendant seem almost wholesale adopted by the court.  In the second, a Hennepin County case, the motion is denied.  In that case, and the defendant's arguments in favor of suppression are set up and knocked down one by one. 

No doubt these and many other cases will be appealed by the respective parties.  There are many, many more such rulings to follow.  Thankfully, there should be some clarity coming from the Supreme Court of Minnesota.  The Court agreed to expedite Brooks v. Minnesota, No. 12-478 (Order filed April 22, 2013).  Brooks and two other  Minnesota cases (two of which were urine tests) were remanded back to the State of Minnesota by the SCOTUS in light of the ruling in McNeely.  Oral arguments are set to commence on September 11, 2013.  A decision should follow in a couple months.

Three bills have been drafted and proposed to further toughen Wisconsin's repeat OWI penalties.   All three bills are sponsored by Republican Rep. Jim Ott (R) of Mequon.  Ott vociferously advocated the measures at a  hearing before the Wisconsin Assembly's Judiciary Committee last week.

A criminal first-offense for BAC's over .15 is being  pushed.  Also, one of Ott's bills would make all third and fourth-offense OWI convictions felonies.  (Currently, only a fourth offense OWI/PAC committed within 5 years of a prior OWI is a felony).  Another bill would increase the penalty for injuring someone in an OWI accident, raising the minimum jail sentence from 30 days to six months.  The third measure requires at least a 10-year prison sentence for anyone who kills another person while OWI.  The current law has no minimum prison sentence for such cases.

In what some might consider a pretty gutsy move, State Senator Jennifer Shilling (D) spoke out against the measures on the radio (WIZM) this morning, touting the additional millions of dollars in costs projected in order to prosecute and incarcerate the offenders.  I say "gutsy", because OWI is generally a hot button issue for judge's and politicians.   

I will be watching the developments closely.  One thing is for sure, no legislator is proposing (or likely  ever would propose) more lenient OWI sentences.  This is not the first time Ott has proposed additional penalties for OWI offenders.  It is only a matter of time before the penalties increase again.