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.  

The Supreme Court of the United States (SCOTUS) will not be reviewing the disappointing October 23, 2013 decision of the Supreme Court of Minnesota in State v. Brooks.  The order denying certiorari was issued this morning, April 7, 2014, thus ending Mr. Brooks' near 5-year battle to avoid conviction for three separate DWI cases.   

SCOTUS remanded Brooks case back to Minnesota in April of 2013 as a part of its decision and order in
Missouri v. McNeely.  McNeely reiterated that, absent consent, police must obtain a warrant before obtaining blood evidence for use in impaired driving convictions.  The ruling obviated dozens of state appellate court decisions that held police could force a chemical test without a warrant in all cases where there existed probable cause for arrest. 

Brooks still stands for the proposition that urine and breath testing, and not just blood draws, fall under the ruling of McNeely.   Brooks also solidifies a defendant's right to a case-by-case analysis of whether his/her purported consent to provide a sample for testing was coerced.  You can read more about Brooks in an earlier article on this site.          

Not exactly the Christmas gift we were hoping for:  On December 27, 2013, the Supreme Court of Wisconsin, in State of Wisconsin v. Bentdahl, sharply limited the discretion of Wisconsin Circuit Court judges to dismiss Implied Consent Refusal convictions.  This, of course, includes the La Crosse County Circuit Court, where I have had MANY such Refusal convictions dismissed.  

A person who is arrested for OWI/PAC must agree to supply a sample of their breath, blood or urine to their arresting officer.  Wis. Stat.  s. 343.305(9).  Implied Consent Refusals--refusal to supply such a sample--can be counted as a prior OWI/PAC conviction in Wisconsin and most other states, even when the person is later found NOT GUILTY of the actual OWI/PAC charge they were arrested for.  Wis. Stat. s. 343.307. 

Because of Bentdahl, even a person later found NOT GUILTY of the actual OWI/PAC can't ask the Judge for dismissal of the Refusal conviction.  Worse, now a person who relieves the State of the time and expense of having to prove him/her guilty of OWI/PAC can't request dismissal of the Implied Consent Refusal conviction unless they actually challenged the Refusal within 10 short days.  

Yes, there is only 10 days to challenge a Refusal charge by filing a request for a refusal hearing.  Many--including innocent people--do not meet the short deadline.  Unfortunately, I know that some people charged with Refusal are not even given the notice of their right to challenge the Refusal.  In either respect, this means that an innocent person can be unwittingly saddled with the equivalent an OWI/PAC conviction for life, with all the stigma and expense that brings.

The  Bentdahl court did not overturn State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), the case that first acknowledged Wisconsin Circuit Court judges' discretion to dismiss Refusal convictions after a plea to OWI/PAC.  It just limited dismissal to cases where the defendant (1) first challenged their refusal to test, and (2) pleads guilty.  However, as was the case in Bentdahl, Refusals were also frequently dismissed for defendants who did not challenge the Refusal within 10 days, pleaded no contest, and/or or were found not guilty of the actual charge of OWI/PAC.  
A person with a first Refusal conviction will be revoked twice as long as an actual OWI/PAC conviction (12 months vs. 6 months (for a first OWI less than .15 BAC)).  Pleading to the OWI/PAC would cut the revocation in half if the Refusal is dismissed.  Now, the defendant who did not challenge the Refusal charge within 10 days by filing a request for a "Refusal Hearing" will not have that benefit.  Hence, there is less incentive to plead guilty.  As mentioned, many do not file the request for a hearing in that narrow time frame.  However, clients who come to me before passage of the 10 days ALWAYS do.   

NOW MORE THAN EVER:  IF YOU ARE ISSUED A NOTICE OF INTENT TO REVOKE OPERATING PRIVILEGES FOR ALLEGEDLY REFUSING TO TEST, FILE YOUR REQUEST FOR A REFUSAL HEARING.  Call me if you need help doing that.     

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.

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.

Missouri v. McNeely has changed the way La Crosse County police agencies are dealing with OWI arrests, at least in cases of refusals to allow blood tests in criminal OWI (2nd offense or greater).   La Crosse area police are now applying for warrants from La Crosse County Circuit Court judges before taking their arrested subjects to the hospital for a blood draw.   

In a recent City of Onalaska OWI I reviewed, the arresting officer, immediately upon getting a refusal to give a blood sample, typed out an affidavit using the computer in his police vehicle.  It appears there was an electronic form already produced for that purpose into which he typed the information he believed supported probable cause to arrest (i.e., traffic stop, physical appearance/traits, field tests, PBT results).  He then transmitted the affidavit via email to the judge who was responsible for issuing warrants that day, who was likely the judge assigned to intake at the La Crosse County Circuit Court.  After reviewing the affidavit, the Judge called into La Crosse County emergency Dispatch, who then connected him to the officer's squad cell phone.  The entire conversation was, therefore, digitally recorded by dispatch.  

The Judge then swore the officer upon oath and asked whether the information in the affidavit was true.  The officer said it was, and the Judge authorized the warrant.  He indicated to the officer that the original would be signed and filed with the Court.  This took place around Midnight, and the entire process took about 1/2 hour.

 Wis. Stat.  968.12 et seq. allowed for electronic warrant applications either by affidavit or recorded testimony long before Missouri v. McNeely, but only now has this been used for OWI cases, but only in cases of refusal to test.  It does not appear the police are seeking warrants in non-refusal cases, and it is unclear whether they will in non-criminal (first offense) cases.  Regarding the non-refusal cases, the position seems to be that there is consent (an exception to the warrant requirement) by virtue of the arrested person's submission to test following the Implied Consent advisory.   Whether agreeing to submit to a test after being read the advisory is valid "consent" is a question that still remains very much unresolved, in my opinion.  Moreover, there should not be any reason to differentiate between first and subsequent OWI when applying for warrants.  A search is a search.  Finally, though McNeely dealt specifically with a blood test, there is no good reason to assume it does not apply equally to breath and urine tests.

 State v. Bohling, is the Supreme Court of Wisconsin case that allowed warrantless blood draws in all valid Wisconsin OWI arrests.  That bad law is now gone.  The premise of that case was that every OWI created an emergency which allowed police to proceed to forcibly draw blood without first getting a warrant.  That was obviously a fallacy, considering a warrant can be obtained with little delay.  Some judges may be getting less sleep, and arresting officers will have to do a little more work, but that's the price of a constitutional system.     

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.

I have been defending Minnesota DWI cases since first being admitted to practice in Minnesota in early 2001.  Though I have always had my law office located in Wisconsin (La Crosse, 2000-2008, and Onalaska 2008-present), I have been representing clients in South-Eastern Minnesota since 2001.   I have insisted on keeping on top of all the developments in Minnesota DWI and criminal law, to ensure my Minnesota clients get a state-of-the art defense.  In fact, I was the only attorney in our area to become a member of the Source Code Coalition, which was a group of Minnesota DWI attorneys who pooled their resources and fought to keep he flawed Intoxilyzer 5000 breath testing machine out of Minnesota courts.

Keeping on top of Minnesota DWI law requires attendance at the Annual Minnesota DWI Defense seminar in the Twin Cities area.  This year's seminar, held on June 14th, was especially exciting, due to the recent case, Missouri v. McNeely.  In McNeely, the Supreme Court of the United States ruled that warrantless, non-consensual OWI/DWI/DUI blood draws are unconstitutional.

The speakers on the topic of McNeely were Chuck Ramsay, Jeffrey Ring, and Jeff Sheridan.  These preeminent attorneys have spent their gifted careers representing DWI defendants in the Minnesota District Courts.  They were each very excited that the Supreme Court of the United States has finally declared unconstitutional the practice of forcing OWI/DWI/DUI suspects to submit to blood draws without first getting a warrant based on probable cause.  In fact, Jeffrey Ring described McNeely as the most important case in the area of DWI defense during his long career.   That is is really saying something,

Minnesota requires arrested DWI suspects to submit to a breath, blood, or urine test.  Refusal to test is a crime in itself, often more serious than the DWI they were arrested for.  Almost all DWI suspects are read an Implied Consent advisory that tells them that it is a crime to refuse testing.  In other words, there is no such thing as consent to the test.  There is a strong argument that, like the blood test in McNeely, breath tests and urine tests will also be deemed to require a warrant.   Despite the McNeely ruling,  law enforcement is not getting warrants prior to requiring submission to their tests.  That means any BAC test is subject to challenge. 

All competent DWI defense attorneys are challenging these tests at the trial court level.  Attorney Jeff Sheridan already has a case postured to lead the challenge in the Minnesota courts of appeal.  I will be doing my part, and I will be watching carefully to ensure my client's rights are preserved, and that McNeely is enforced.  If you have been charged with DWI in any county in South-Eastern Minnesota, including Houston County, Winona County, Fillmore County, Olmstead County, and Wabasha County, feel free to contact me for free information.           

In Part 1 of this series, I showed how Wisconsin has declared to juries that its chosen, or "approved", BAC testing devices use "scientifically sound method[s] of measuring the alcohol concentration of an individual".  This declaration relieves its prosecutors from having to actually prove that fact to jurors.  This article explores the how Wisconsin went even further to hobble OWI defendants at trial, tilting the playing field even more in favor of its OWI prosecutors.  

Wisconsin Jury Instruction 2663 states, "If you are satisfied beyond a reasonable doubt that there was .08 (breath) 
(blood) at the time the test was taken, you may find from that fact alone that the defendant was under the influence of an intoxicant or operating with a prohibited blood alcohol content at the time of the alleged operating, but you are not required to do so . . ."  This instruction allows prosecutors to tell jurors, "I don't have to PROVE the defendant was actually impaired or .08 at the time of driving.  If you, the jurors, believe the test demonstrates a BAC or .08 or greater AT THE TIME OF TEST, then 'the law' says you can also find he/she was impaired or .08 AT THE TIME OF DRIVING."  It must be nice to play make believe and have the full force of the Wisconsin statutes to uphold the illusion.  

Why is this so unfair?  First, the test result "is admissible", so long as it was taken within 3 hours of the driving.  This means, essentially, that no matter what the issues with the test--i.e. eight breath samples to get a good test--the test is admissible.  Why?  The Wisconsin statutes say so.  This means the Judge at an OWI trial can't exclude a test taken within 3 hours of driving unless the test  is so devoid of trustworthiness as to lack relevance altogether.  


The other reason it's unfair is that the test result could be markedly higher than it was at the time of driving, because of the delay in full absorption of ethanol into the blood.  The Wisconsin Jury Instructions state that the prosecution has the burden to prove each element of the offense of OWI or PAC.  One of the two elements for OWI is that the driver was impaired at the time of driving.  One of the two elements of PAC is that the driver had a BAC of .08 at the time of driving.  But the same Jury Instructions say that impairment or BAC of .08 can be viewed as proven by a test of .08 or greater taken as long as 3 hours after driving.  A BAC test taken any time later is almost certainly not the same as BAC at the time of driving.  

 So does the prosecution have to prove impairment or BAC at the time of driving or not?  Apparently not.  Is the jury allowed to pretend that BAC at the time of driving is the same as the time of test?  Yes.  In fact, they are strongly encouraged to do so if this jury instruction is allowed.

Fortunately, an experienced OWI attorney can often keep Wisconsin Jury Instruction 2663 out of the trial by the introduction of BAC "curve" evidence--i.e., evidence that BAC was below the legal limit at the time of driving, but rose above the legal limit after the driving.  This type of defense will definitely help level the playing field.  

End.   

885.235 (1g) states: In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle  . . .  evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's blood or urine or evidence of the amount of alcohol in the person's breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:
 * * *
(c) The fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.