"The most persuasive evidence known to the officer was Hubbard’s own admission that he smoked marijuana (“weed”) within nine hours of driving. The officer’s training instructed that this would be recent enough for marijuana to be detected in his blood." 

Wisconsin drivers are reminded that in Wisconsin, as opposed to MN for example, just having any "detectable amount 
of a restricted controlled substance" in their blood IS an OWI.   Wis. Stat.  s. 346.63(1)(am) (emphasis added).  Delta 9 THC, the active component of marijuana, is a "restricted controlled substance."  Wis. Stat. s. 340.01(50m).  That means that a driver does not have to be impaired by marijuana--or anything else--to be arrested for OWI.  The arresting officer only has to show "probable cause" that the driver's blood may have a "detectable amount of a restricted controlled substance" present.   Once the blood is drawn--forcibly if necessary--whatever restricted controlled substance is found by the lab "screening" the blood can (and likely will) result in an OWI charge under s. 346.63(1)(am). 

The point is being made again, this time in an unpublished Wisconsin Court of Appeals opinion released Wednesday,
 STATE OF WISCONSIN V. KENT W. HUBBARD.  Hubbard was stopped for a bad tail light at 2:45 a.m. (of course).  He reportedly had bloodshot eyes and admitted drinking two shots.  He also admitted that he smoked marijuana that day, nine hours before.  His PBT (preliminary breath test) registered a BAC of only .02.  He reportedly consented to a search of his vehicle, which produced "two glass pipes containing burnt residue as well as a pill bottle containing a green seed and a Ziploc bag containing a green leafy substance, both smelling like marijuana".  

Hubbard was arrested for suspicion of driving with a detectable amount of a restricted controlled substance.  He refused a blood draw.  His blood was taken anyway.  The decision does not state exactly what was disclosed by the screening tests, but the only thing referenced is methamphetamine.  That's right--not THC, not ethanol (alcohol)--but meth.  

Hubbard was charged with one count of operating a motor vehicle while under the influence of an intoxicant, controlled substance, or any other drug or combination of substances, contrary to Wis. Stat. s. 346.63(1)(a), and one count of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, contrary to s. 346.63(1)(am).  The "detectable amount of a restricted controlled substance", here meth, had nothing to do with the facts giving rise to his investigation or arrest.  However, the test result, showing meth present, was presumably the reason Hubbard ended up pleading to OWI under s. 346.63(1)(a). 

Hubbard challenged his arrest.   At the hearing, the arresting officer testified that "he had received drug training related to impaired driving, where he had learned that marijuana could remain in the bloodstream for '24 hours or longer.'”  (emphasis added.)

The courts ruled that the officer had probable cause to arrest for suspicion of driving with a restricted controlled substance under s. 346.63(1)(am).  In finding probable cause, the Court of Appeals stated, "The most persuasive evidence known to the officer was Hubbard’s own admission that he smoked marijuana (“weed”) within nine hours of driving.  The officer’s training instructed that this would be recent enough for marijuana to be detected in his blood." 

Many believe that s. 346.63(1)(am) promotes a "witch hunt" because it does not even require evidence of impairment, only evidence to believe the person may have some restricted controlled substance in his/her blood.  This decision suggests that an admission of recent marijuana use (if you call 9, let alone 24, hours "recent") could be grounds to arrest, draw blood, and then have the Wisconsin State Lab of Hygiene or Wisconsin Crime Lab go on  a fishing expedition for any "restricted controlled substances" by the process of Mass Spectrometry Gas Chromatography.  If any such substances are found--even if they have nothing to do with the reason for the stop or arrest--the driver can be guilty under s. 346.63(1)(am).  

What's further troubling is that the Wisconsin State Lab of Hygiene, the lab largely responsible for testing for ethanol and restricted controlled substance testing, has clearly been strained by the volume of cases coming to its lab.  So much that in 2011-12 it was forced to contract out 600 cases for mass spectrometry testing to a 'for profit' lab in PA.  How do I know?  I am still fighting one of the cases sent to PA for testing.  There does not have to be cause to believe the blood contains any other substance, but the testing can find and identify most any drug.

 OWI convictions are big-ticket cases for patrol officers.  In La Crosse, WI, a patrol officer might even find themselves highlighted in the La Crosse Tribune for having the most OWI arrests.  Why is that a bad thing, you might ask?  In most cases it isn't.  Nobody wants an impaired driver on the road.  However, I have had cases that start with a stop for something like a tail light, then moved to an investigation for drunk driving because the driver admitted some amount of drinking.   After humiliating field tests, the PBT shows under .08 BAC.  Then the question follows: "Have you had anything else?"  If the person admits to smoking pot any time recently, then we're off to the land of bloodshot eyes, yellow tongues, fevers and pupil size to justify the arrest.  


Like Hubbard,  arrest for THC can end up with charges for some other substance, whether it be meth, metabolites of cocaine, or whatever.  This can happen even though the "symptoms" between using pot or some other substance may be completely different.   It doesn't take a hippy to think this does resemble a bit of a 'witch hunt'.  

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. 

 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." 

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.

The National Transportation Safety Board (NTSB) is now recommending that the states lower the legal BAC limits for impaired driving offense to .05!  According to the Board, this is justified by the 10,000 people killed, and 170,000 injured, in "alcohol-related" accidents. 

Well, I knew this was coming, but I actually thought the new recommended level might be .04, which is what NHTSA has been asserting for years is the threshold for material impairment. 

At this time, there is only a "recommendation" for a .05 BAC limit.  However, as we saw with the push to lower to .08., the federal government is not afraid to drive its policies through by wielding its "spending power."  The federal government can require numerous things in the states' traffic laws if the states want full access to highway funds.
Eventually, the states have no choice but to come around.  In the case of the .08 limit, Minnesota was the last state standing on its .10 limit; but that changed in 2005, far too late for some people.  

The NTSB claims that 1,000 lives per year can be saved with a .05 BAC limit.  It also stated that other measures could be explored and implemented to reduce traffic death rates.

In my practice, I have seen OWI/DUI/DWI enforcement become more and more emphasized.  That is obviously not a bad thing.  However, at the same time, I have seen overt speeding and out-and-out reckless driving receive far less emphasis.  My experience is that most people are cited for reckless driving, running red lights, or similar offenses,
after they are involved in an accident.  The fact is, there is no "Mothers Against Speeders" or "Mothers Against Reckless Driving" behind the debate, at least none we've heard of.

As I write this, cars are boldly whizzing past my location in Onalaska at speeds easily approaching 45 m.p.h. in a 25 m.p.h.  zone.  Is this not dangerous and potentially deadly driving conduct?  However, almost nothing is being done to curtail it, and someone will die.   And how many other crimes will be committed while police are at the hospital getting blood drawn from drivers PBT'd between .05 and .08?  I realize that OWI/DUI/DWI is unpopular, and for good reasons, but why should other, equally-dangerous conduct get a pass?

There are limited resources available for law enforcement.  I believe that a thorough examination should be undertaken regarding the best use of those limited resources to promote public safety before lowering the legal BAC limit to .05.   

(Not Legal  Advice)

“I Just Want to Get  it Over With.”  Sound Familiar?  Not so Fast.
Many people charged with an OWI offense take the matter far too lightly. Some view it as a mere “traffic ticket.” They “just want to get it over with” or put it behind them.  This is a big mistake.  Many people plead guilty with woefully inadequate information about the consequences of their plea.  The truth is, by pleading guilty or no contest to OWI, you may never be able to put it behind you. 
 
The consequences of even a first-offense OWI have steadily grown more severe. In Wisconsin, for example, people convicted of OWI will have that conviction on their driving record forever. That conviction can then be used to enhance, or aggravate, future OWI charges and consequences. The Wisconsin Legislature is right now contemplating making a Third-Offense OWI a felony. 

The fines associated with an OWI  conviction are very significant. Moreover, the conviction will almost always result in substantially increased insurance premiums, and in some instances, outright cancellation.  

In Wisconsin, an OWI conviction will result in a mandatory license revocation of at least 6 months.  This can jeopardize your livelihood.  For example, Commercial Motor Vehicle  license holders will be ineligible to drive a commercial vehicle for one year,  even if they are merely administratively suspended pending their OWI trial. Those who incur two OWI convictions after September 2005—even if the convictions stem from use of their private vehicle—will simply have to find a new line of work.   

The fact is, some people will plead guilty or no contest to an OWI that could have been dismissed, reduced, or which could have resulted in acquittal.  Many will plead guilty not knowing how the conviction will affect them, now and into the future.  A good OWI attorney will obtain your driving record, get all the facts, and provide you the information you need before you make a decision you cannot take back, and, often, will never live down.            
 
 “I Don’t Need a Lawyer.”  
 If you have been charged with an OWI offense, you have some very important decisions to make.  A conviction will likely follow you for the rest of your life.  The “other side” will have a lawyer representing its interests against you.  That lawyer took an oath to zealously represent his/her client, the town, city, county or State. That person cannot represent your interests at the same time.  If you are relying upon the prosecuting attorney to advise you of your best interests, you are making a big mistake.  
 
A prosecutor can prosecute you so long as there is “probable cause” supporting your charge.  “Probable cause” is a lower level  of proof than is needed to convict you.  Most prosecutors have a heavy caseload.  You simply cannot rely upon them to point out weaknesses or defenses that could jeopardize their “client’s” case.  Rest assured, most prosecutors would rather have you plead guilty or no contest to the offense. You need an experienced advocate on
your side to help you determine what is in your best interests. 

“I Have Time to  Think About This.”
In Wisconsin, if a legal blood-alcohol test puts your blood-or breath-alcohol level over .08, or if you refuse to undertake such test, you have as little as 10 days to act to prevent  the suspension or revocation of your license.  If you blow it off, your driving privileges will automatically be suspended or revoked by the DOT. This is serious, because a test “refusal” can have the same effect as an OWI conviction, in terms of being “counted” as a prior offense.  As mentioned above, for persons with Commercial Driver's Licenses, the  administrative suspension alone will result in one year without a commercial  driver's license. 

Your rights can be drastically affected well before your  first mandatory court appearance.  Many people let this crucial time lapse, thinking there is nothing they can do.  However, there are issues that a good OWI attorney can look for, and a good OWI attorney will have helped numerous clients avoid an interruption of their driving privileges.  One thing is for sure, if you do nothing, you will lose.                   

“Any Lawyer Can  Handle My OWI/DWI/DUI Case.”
OWI law is complicated.  Public demands for more strict  standards and penalties have  caused frequent changes in the laws and penalty structures.  It is challenging for a criminal defense attorney who regularly practices in this field to keep abreast of these frequent changes, let alone the attorney who defends the “occasional” OWI case. 

A lawyer who keeps track of these changes will help you navigate this “minefield.”  To ensure the competency and efficiency of your legal counsel, it is strongly recommended that you hire a lawyer who regularly practices in this field. 
Before you hire an OWI attorney, ask (1) how many OWI cases have they taken to a jury trial, (2) what percentage of their practice is dedicated to OWI defense, and (3) what instruction do they have to keep up to date with the changes in the OWI laws. 

OWI cases regularly involve scientific testing procedures to determine blood-alcohol levels. These procedures involve strict protocols and standards that must be observed to ensure the reliability and admissibility of the test results.  The introduction of such evidence at trial can be  tricky, even for the seasoned prosecutor. 

A good OWI attorney is familiar with the rules the scientists and prosecutors must follow, and he/she will jump to
action when they have not done so.  A good OWI lawyer must know how to obtain, analyze, and detect possible defenses from the various materials available.  He/she should have experts” he/she can turn to aid in this process and, if necessary, testify at trial. 

It is a serious mistake to believe any attorney can  effectively handle these cases.  Most can't.  I have been
representing persons charged with OWI/DWI/DUI from the first day of my practice.  I regularly attend and participate in annual training conducted by the most talented and knowledgeable attorneys in this field.  I have handled these cases in trial for years.  I know what to look for, so you need look no further. 
 
 “The Cheaper the Lawyer, the Better.”
Lawyers are also businessmen.  A good law practice is expensive to maintain.  Lawyers must charge  sufficient money to pay expenses and their salaries.  More importantly, OWI cases require very careful attention to detail, and may need to go to trial. 
 
 Good OWI attorneys will not undertake responsibility for a case unless there are sufficient funds to guarantee a substantial portion of their fees and expenses.  If you find a lawyer who will take your case at a very low price or
rate, it may be cause for concern.  You may only be worse off if your lawyer withdraws from your case after the insufficient retainer he/she required has been exhausted. 

Almost any lawyer can sit next you as you plead guilty.  A good OWI attorney should consider a guilty plea the last resort, not the presumed outcome.  However, properly  investigating and developing your
defense will cost money.    

“I Tested Over ‘the Legal Limit’, So I Must Be Guilty.”
In Wisconsin, you are “guilty” of simple OWI only if you drove or operated a motor vehicle upon a highway while (1) impaired in your ability to drive by alcohol; or (2) while having a blood-alcohol concentration at or above .08.  If your blood-alcohol level was at or above .08 at the time of the test, it does not necessarily mean it was the same level while you actually drove or operated your vehicle.  Importantly, the Preliminary Breath Test ("PBT"), which is the device used to test your blood- alcohol level at the roadside, is not admissible at trial in most states, including Wisconsin. 

Alcohol is absorbed into the blood stream over time.  Therefore, a person who was not impaired, but who “tests”
with a blood-alcohol at or above .08, could in fact be innocent.  With the proper information, a good OWI attorney can have your case analyzed to determine whether you fall within this category of defendants.  No person should have to
plead guilty to an offense they did not commit.        

The proliferation of OWI traffic stops and arrests has put tremendous pressure on the equipment and personnel in charge of testing breath and blood samples for BAC.  After all, the test result is only a piece of paper with a numerical
result, a fancy heading and a signature. It is not even the actual test, but instead a document created after the fact to look important and "official".

Testing equipment must be properly maintained and operated, and exacting protocols and tolerances must be observed, in order to obtain accurate and admissible BAC test results.  An experienced OWI attorney will, where appropriate, know how to obtain the documentation necessary to determine whether there may be equipment maintenance or performance issues that can be used to demonstrate doubt regarding the test result.  I have never handled any case where the prosecuting attorney knew more than me about the BAC testing equipment, or the
procedures and science surrounding the testing process.

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.