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.       

  "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.

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. 

Charles E. Spangler, 44, was arrested by the Wisconsin State Highway Patrol after reportedly striking a guardrail on Highway 12 near Millston.  According to reports, Spangler has prior OWI convictions in 1994, 1995, 1997, 1999, 2000, 2006, and 2011.  For the most recent, he was sentenced to participate in the Jackson County Treatment Court program in addition to five years probation.

This is one guy who needs a lawyer.  Mr. Spangler's probation officer has no doubt placed a probation hold on him that will keep him in jail until the issue of his probation is resolved.  If he is revoked from probation, then he faces sentencing on his 2011 case in addition to whatever bodes for him relative to his new charges.  Making things even harsher, OWI 7th and greater offenses carry increased mandatory prison sentences so that, if a person is sentenced to serve prison, the initial period of confinement must be no less that 3 years, pursuant to Wis. Stat. § 346.65(2)(am)6.  

A lawyer in this case needs to act very quickly.  The police reports and video-recorded evidence should be obtained right away to determine whether some issue can be raised for suppression of evidence.  At the same time, the lawyer would want to get all documentation relative to the prior convictions to determine whether any of those can be taken out of the equation. 

Yes!  Especially with OWI/PAC 4th or greater, where the prohibited alcohol concentration is a mere .02, keeping prior OWI/PAC convictions from being counted is one of the best things a lawyer can do for an OWI defendant.  This area of the law is tricky, but this firm has helped numerous people reduce their charges by motions to strike prior offenses, including lowering a OWI 5th to OWI 3rd, and OWI 7th to a 6th, thereby avoiding the mandatory 3-year imprisonment of Wis. Stat. § 346.65(2)(am) 6.  Spangler, and anyone charged with repeat OWI, needs an attorney who knows this area of law well and can get these prior offenses knocked out of the picture.   If that is not possible, and the new case cannot be otherwise defeated, then careful legal strategy on how to present this case for sentencing is paramount.