"Heien gives the police more leeway to stop cars for the wrong reason, and that SUCKS." 

One of the first principles learned by students of criminal law is "Ignorantia juris non excusat", or "Ignorance of the law is no excuse".  That makes sense, doesn't it?  Otherwise, people could excuse their criminal actions by saying, "I thought that was legal."  However, yesterday the Supreme Court of the United States ("SCOTUS") ruled that the police--the one group that definitely should know the law--can be excused for their ignorance of the law, so long as the ignorance was "reasonable".

So what is a mistake of law, you ask?  For example, if a police officer pulled someone over because he/she thought the person's windshield was cracked, and it was not cracked, that's a mistake of fact.  If, however, he/she made the stop because of a cracked windshield, and cracked windshields are not even illegal, that's a mistake of law.   

HEIEN v. NORTH CAROLINA is the case, handed down just yesterday.  Heien gives the police more leeway to stop cars for the wrong reason, and that SUCKS.  In Heien, a police officer stopped a vehicle under the mistaken belief that having only one brake light was illegal in North Carolina.  It wasn't illegal.  This was a mistake Chief Justice Roberts found "objectively reasonable".  Cocaine was later found in the vehicle. The North Carolina Supreme Court reversed a lower appellate court, which ruled that the cocaine had to be suppressed because there was no grounds for the stop.  SCOTUS AFFIRMED. 

The holding in Heien states that, at least under the US Constitution, both mistakes of fact and mistakes of law are now excusable so long as they are reasonable mistakes, and suppression of evidence will not be required when a such mistake is made.  I call this tantamount to a "good-faith exception" for traffic stops.

Prior to this ruling, reasonable mistakes of fact by police were generally excusable, but reasonable mistakes of law were not.  In Wisconsin, that has been the law for over 15 years.   State vs. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999).  That principle was recently reiterated in State v. Brown, 2014 WI 269.  Therefore, if the police made a stop on a mistake of law and discover evidence as a consequence, that evidence must be suppressed, even if the mistake was reasonable.  

Heien does not necessarily mean that reasonable mistakes of law are now excusable in Wisconsin.  The Wisconsin court can interpret  the Wisconsin constitution in a way that is more generous to citizens' rights than the US Constitution has been interpreted by SCOTUS.  However, the Wisconsin court has generally followed the interpretations of SCOTUS on issues of Fourth Amendment law when deciding the scope of Article I, section 11, Wisconsin's counterpart to the Fourth Amendment.  Therefore, the decision does not bode good things for Longcore and Brown.  

The following is my letter to the editor of the La Crosse Tribune, submitted today:

Police "Body Cameras" Can't Help If They Are Turned Off.

In the wake of the situation in Ferguson, MO, President Obama has pledged $75 Million in federal funds, specifically to equip police officers with digital "body cameras".  The idea, of course, is that these cameras will objectively capture encounters between police and citizens.  This will take the "he said, she said" element out of the equation.  It will eliminate the human elements that have led to infamously unreliable eyewitness accounts.  It will protect the police from false accusations.  It will keep police "more honest".  All of this may be true, so long as the cameras are actually working and on, and if the footage is properly preserved.         

I am a criminal defense and car accident attorney.  As such, I have over the last 15 years routinely requested and examined police audio-video evidence.  Advances in digital technology have led to nearly every police vehicle, and nearly every police interview room, being equipped with audio-video equipment.  I want the audio-video record for obvious reasons:  It is often the best evidence of what actually happened, and of what actually was said.  It can be the best or worst evidence for a client; but it is the truth that matters most. 

In the case of most police squad cars, the digital equipment is designed to be perpetually on.  The system is designed to preserve the audio and/or video record anytime an officer activates emergency lights or sirens, or manually starts recording.  In either case, the equipment will also capture a period of time before the equipment was activated.  Importantly, officers are equipped with wireless microphones on their persons, which often allows them to record witness statements.  

Most law enforcement agencies have in place orders dictating how the audio and/or video equipment is to be used and maintained.  These orders usually require officers to inspect the equipment at the outset of their shift, to ensure it is properly functioning.  These orders also require that officers actually use the equipment to preserve evidence, allowing few exceptions.  

Despite these orders, there is, in my opinion, a shocking percentage of cases where video and/or audio-recorded squad evidence is not being properly captured and/or is not being properly preserved.  I have seen many cases of field sobriety tests done out of view of the camera.  I have seen many cases where officers' microphones are turned off; selectively turned off and on; or not functioning at all, while reportedly incriminating statements are being made.  I have seen multiple cases of audio-video not being recorded because the digital storage device was "full" or the equipment was down.  I have seen many cases where there is no video, no audio, and no explanation at all.  This very morning, I received a letter from the Town of Campbell Police Department, in response to my request, saying only, "[D]ue to computer issues we are unable to retrieve any audio/video recordings of this incident."       

I don't like to be critical of the police; but it is part of my job description.  I am also a citizen, and I rely on the police, just like everyone else.  Police are human.  They also have tough jobs.  Mistakes will happen.  That having been said, if it is true that "the conqueror gets to write history", then this technology must not only be available to the police, it must be properly used by them.  We cannot tolerate the selective or sloppy use of police cameras.                     

Chris Dyer, Attorney and Counselor at Law, Onalaska, WI.        

The Supreme Court for the State of Wisconsin has granted a Petition for Review of State v. Michael R. Luedtke, 2013AP1737-CR.  Luedtke failed to persuade  the Court of Appeals that punishing a person simply for having any amount of a restricted controlled substance in their blood while driving violates the driver's right to due process of the law.  


The statue at issues is Wis. Stat.  s. 346.63(1)(am).  The substance most often detected is Delta 9 THC, the active component of THC.  Other states, including Minnesota, exclude THC from the list of restricted substances.


According to the Court of Appeals, the statute does not violate due process even though it does not require the driver to (1) actually be impaired; or (2) knowingly or intentionally ingest THC/restricted substances.  Statutes that require "knowledge" or "intent" are said to have a "scienter" element.  Those that do not, like section 346.63(1)(am) are called "strict liability" offenses.   The Court of Appeals decision can be summarized as follows, "[B]ecause no reliable measure of impairment exists for many illicit drugs, the legislature reasonably could conclude that the more prudent course was to ban any amount in the driver’s system." 


In a previous blog, I gave my reasons why section 346.63(1)(am) leads to police abuse.  It is my sincere hope that the Supreme Court will see things differently than the Court of Appeals.  However, I am not holding my breath.

Thal and Julian Wendrow sued Michigan Prosecutor David Gorcyca, his former chief assistant, Deborah Carley,  and Andrea Dean, a former judicial candidate now in private practice.   The Wendrows are the parents of a severely-autistic 14 year-old mute child.  In 2007, the child reportedly typed a note to a teacher's assistant stating she had been raped by her father since early childhood.  However, the  teacher's guide "aided" the child's, using a method of typing called facilitated communication, which is widely debunked.  The police even interrogated the child's younger brother, lying to him, saying they had a video of the father raping the child.  On the basis of this unbelievably unreliable information, the police and prosecutors ran with it, arrested and jailed the Wendrows (Mr. Wendrow for 80 days), putting their children into protective custody. 

According to the USA Today, the suit was filed in 2008.  Since then, the West Bloomfield Police Department settled for  $1.8 million, the state settled at $850,000 and Walled Lake Schools will pay the family $1.1 million.  I guess that fills the war chest in terms of pursuing these prosecutors.

I have represented a number of people charged with sexual assault of a child in La Crosse County.  These are difficult and complicated cases.  None of those cases resulted a trial, let alone a conviction.  I am also a parent of young children.  As such, I appreciate the most zealous of advocacy when upholding the rights of child victims.  However, charges of this nature are extremely destructive.  Cases are far too often brought with evidence, and under circumstances, which  are very untrustworthy.  Even the best of intentions--when not guided by common sense--will leave ruined lives in the wake.  This witch hunt is obviously one such case.     

  "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'.  

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.