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  In an unpublished opinion in State of Wisconsin v. Gumersinda Gonzalez, the Court Appeals ruled that the odor of alcohol, without any other indicators of impairment, including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  Other unpublished opinions with similar circumstances, State v. Meyer, No. 2010AP336-CR, unpublished slip op. (WI App July 14, 2010), and County of Sauk v. Leon, No. 2010AP1593, unpublished slip op.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  However, with three standing unpublished opinions, risking an authoritative published opinion would not seem their wisest choice. 

Some find it easy to blame complicated economic and societal problems on "greedy trial lawyers".  I admit, some product warning labels I have encountered seem pretty silly.  However, when I consider that many warning labels result from dead children and inconsolable parents, it doesn't seem as bad.  The fact is, many of the safety enhancements we rely upon to protect us from needless death or serious injury came about because of lawsuits filed by lawyers.  Without lawsuits, we may be left to rely upon manufacturers to do the right thing, or upon "the government" to uncover the problem and protect us.  I don't feel comfortable with either scenario.

Many of us remember the example of Ford Motor Company and their "exploding" Pintos.  Ford reportedly decided that there was an acceptable number of people who could burn to death in its vehicles.  Retrofitting a design
alteration would have prevented gasoline from saturating Ford's customers during rear-end collisions.    

Prior to a month ago, we were probably thinking such a thing could never happen in modern America.  Then we find that GM has over the last 9 years been hiding an ignition defect at the expense of its customers' lives.
 (Two weeks ago Toyota was ordered to pay the biggest fine ever levied for its "sudden acceleration" antics.)  What is not widely know or appreciated, however, is that a trial lawyer, one Lance Cooper of Georgia, is almost single-handedly responsible for uncovering GM's deception.  NHSTA, the governmental entity we rely upon to discover and protect us from such defects, never connected the dots.  It took a trial lawyer, presumably one trying to get money, to bring this atrocity to light.  Watch this video to learn more. 

I am not apologizing for all trial lawyers, and I have a GM in my parking stall.  However, when it comes to the role of trial lawyers in our society, I don't see things so nearly black and white.   Money is a great motivator, and if that helps save lives, so be it. 

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.          

As of October 2013, 200,000 concealed carry permits were issued in Wisconsin, and 5,800 applications were denied.    One denied applicant, Robert Evans, Jr., appealed.  The Wisconsin Court of Appeals has now ruled that he will not be getting his concealed carry permit, thanks to his 2002 conviction for Disorderly Conduct, contrary to Wis. Stat. 947.01.   Read the full opinion here.  Evans can still petition for reivew of the decision, but as the saying goes, "If you want to win an appeal, be the appellee."  This is especially true after losing at the first level.

The Court of Appeals determined that Mr. Evans' conviction for Disorderly Conduct fell within the gun ban of the Federal Firearms Act as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A).  The court looked at the conviction and determined that it involved "use of physical force" because, examining the "limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions", the first "element" of his conviction involved “violent, abusive and otherwise disorderly conduct.”  According to the court, the fact that Evan was convicted of "violent abusive and otherwise disorderly conduct" made it "a relatively easy case."

Importantly, the court kept the door open for those cases where the first element was stated "in the disjunctive", meaning it was stated as "violent, abusive, or otherwise disorderly conduct."  In my experience, the elements in La Crosse County and surrounding counties have almost always been stated that way.  There is still hope.

Another issues in Evan's appeal was whether his step-daughter, the "victim" of his offense.  The statue covers "a
current or former spouse, parent, or guardian of the  victim, … a person with whom the victim shares a child in common, … a person who  is cohabiting with or has cohabited with the victim as a spouse, parent, or  guardian, or … a person similarly situated to a spouse, parent, or guardian of the victim."   The issue was whether Evans was  “similarly situated” to a parent.  The court, construing the statute broadly, determined that he was.  It also made clear it would not look at the intricacies of the relationship to determine whether the step-parent was an parental figure.

If you want to possess a firearm again, let alone have a concealed carry permit, the most important thing is to simply avoid a conviction for Disorderly Conduct.  Many are lured into a plea thinking it will be a fine only.  There are often long-term consequences.   If you are never convicted, you don't have to spend years of time and energy parsing words with your lawyer trying to get your rights back.  However, as this opinion suggests, if you are convicted of DC, then parsing words may be exactly what you want to do.  The way the first element is/was framed may affect whether you fall within the dreaded gun ban.

THIS ARTICLE REFLECTS THE OPINIONS OF THE AUTHOR ONLY

You may have read my articles detailing my distrust of Avvo and its easy-to-manipulate attorney rating system.  A couple recent Avvo stories really emphasize just how out of control it is--and made me laugh my ass off.  

The first--and funniest by far--is the story of "Goat Lawyer".  Apparently a Minnesota attorney converted his own Avvo profile into "Goat Lawyer".   Complete with his goat photo, he put a bunch of time into creating a profile and CV for the barnyard figure, including a host of goat-related articles and accomplishments, including a fake Creighton Law Review article, “Reexamining EPA Regulations Regarding Plastic Fencing, BPA, and Chewable Contours of the Farm”, and a Minnesota CLE speaking engagement, “Tech Tools for Lawyers, Goats, and Canaries.”.  

How did Avvo rate  Goat Lawyer?  "Superb" 9.2 rating.  Hilarious, if it wasn't so sad.  Of course, Avvo will probably explain that it has no control over people lying.  Good out?  Hardly.  Avvo sucks, in my opinion. 

Need more?  How about the Avvo peer endorsement racket I complained about in my earlier post?  A case in point:  Howard Lewis, a Massachusetts attorney who personally endorsed more than 9,000 attorneys.  He's not the only one, at the time of this article, Christian K. Lassen II, has 1,026 endorsements of himself.  He has endorsed lawyers from sea to shining sea on Avvo.  

Endorsement fishing is a practice whereby lawyers give other lawyers--sometimes scores of them--a good endorsement in hopes that she/he will reciprocate with a good endorsement of them.  Some extreme cases illustrate the potential abuse of Avvo's peer rating mechanism, which tempts some lawyers to artificially increase their so-called "Avvo rating" by racking up peer endorsements.   

If you see a lawyer or law firm bragging about their so-called Avvo rating, consider the source.  

 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." 

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 comments in this article are only the opinions of the author.

According to his biography, "Adrian Dayton is an internationally recognized speaker on social media and business development."  I recently came accross his blog article, "How to Improve your rating at AVVO.com."  You would expect this guy to have 10's across the board on Avvo, right.  Nope.  The only Adrian Dayton I found on Avvo was also from Amherst, NY, and he had an Avvo rating of 5.8.   That's basically non-existent.  I'm only a 6.5, and I actually practice law.  Apparently, what Adrian doesn't know is that he can boost that score real quick by doing what scores of Avvo whores have done:  Get other attorneys to endorse him and then reciprocate.  Maybe, Adrian has integrity.  If so, then he shouldn't endorse such a crappy disservice to the public. 

Further proof that police officers are human:  Two off-duty Sheboygan, WI police officers were placed under arrest for OWI early Thursday following a rear-end car accident invloving their vehicles.  According to the La Crosse Tribune, their respective BAC's were .10 and .23.  It is not clear whether the two officers were drinking together, though that seems likely, or it was a huge coincidence.   It is clear that one was drinking  a lot more than the other.  Apparently, enforcing  the law does not necessarily mean obeying it.     

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.