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.

For many years, I have been driving north up highway 35 to the Buffalo County Circuit Court in Alma, Wisconsin.  I have handled cases, ranging from OWI/DUI 1st or Disorderly Conduct, to very serious felonies, with very good results.  I have tried a civil case there, with equal success. 

I enjoy practicing in the Buffalo County Circuit Court.  Like the other smaller counties I travel to, including Trempealeau, Jackson, Pepin, Portage, Columbia, and Clark Counties in WIsconsin, the court personnel and staff are approachable and helpful.  The judges and District Attorneys are professional and courteous.  They appreciate the role of defense counsel. 

If you have been charged with OWI/DUI or a criminal charge in Buffalo County, or if you have been injured in a car accident there, call me at (608)  781-5400 for more information on how I can help you.  I know the Buffalo County Circuit Court.  I have established a reputation there as a serious trial lawyer.  My office is closer to Alma than La Crosse, and as with all other counties, I will substantially discount my rate for travel to Alma, making it affordable for you to have the finest legal assistance for your Buffalo County Case.  Most important, I will work my ass off to get you results. 

If you are ever charged with criminal Disorderly Conduct under circumstances that are considered "domestic", you could lose your right to possess or purchase a firearm for life.  Robert W. Evans Jr. found that out.  He is appealing the Wisconsin DOJ's denial of his application for a concealed carry permit.  His application was denied because he was convicted in 2002 of criminal Disorderly Conduct relative to an incident involving his adult stepdaughter, whom he reportedly admitted he had "pushed."    

Disorderly Conduct, or "DC", is prohibited by Wis. Stat.  947.01, which outlaws "engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance." (emphasis added.)  This is unbelievably broad language, and unbelievably, it has survived a constitutional challenge on the grounds of overbreadth.  When it comes to disturbances, I tell people, "If the police arrive and you were one of the reasons they are called, you could be arrested and charged with DC."    

Many, many people pleaded guilty or no contest to Disorderly Conduct believing it was just a minor offense.  Like Mr. Evans, they later got a rude awakening.  Not only can their applications for concealed carry be denied, but they could be charged criminally for possessing a firearm, under the Federal Firearms Act.  Attempts to undwind the conviction on the grounds that they were unaware of the ban when they pleaded were rejected, on the grounds that the ban is a "collateral" consequence of the conviction and not, therefore, grounds for a "do over."

Since 1996, the so-called Lautenberg Amendment to the Federal Firearms Act has prohibited gun possession by anyone convicted of a misdemeanor that "has, as an element, the use or attempted use of physical force, or the 
threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."  18 U.S.C. §921(a)(33)(A), (g)(9) (emphasis added.).

A recent 2nd Amendment challenge to the federal ban did not end well in the 7th Circuit Court of Appeals for Steven Skoien, a man convicted of DC and, subsequently, the federal act. The challenge to the Wisconsin DOJ's application denial is not 2nd Amendment based.  It hinges on interpretations of the language of the federal statute and Wisconsin Disorderly Conduct statute.  The arguments by the appellant and DOJ are quite complicated, but can be accessed here (Appellant, Respondent, Reply) if you want to try to follow them. 

My thoughts?  Don't get convicted in the first place.  I have kept many people charged with Disorderly Conduct in La Crosse County and surrounding counties from losing their 2nd Amendment rights.   

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.

Police Lt. Brian Thomson "resigned" on August 13th after reportedly being caught dipping into drugs in the evidence room at the La Crosse Police Department.  He appeared in court on August 14th for a bond hearing, but he has not been in court again.  He was supposed to be in the La Crosse County Circuit Court yesterday to face charges following a delay on August 30th.  However, if you search for his name on CCAP, you will not find a case for Brian Thomson yet.  Charges have now been delayed to October 23rd.  According to the La Crosse Tribune, Thomson's attorney cited "medical reasons" for the new delay.  

This is not your typical case, for sure, with judges and prosecutors having to bow out due to conflicts caused by their connection to the former policeman.  However, to date, Thomson has done a great job avoiding the courtroom, particularly since persons facing felony charges are typically required to be present in person for court hearings, aside from mere status conferences.  Maybe he'll be in court on October 23rd(?)

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 La Crosse Tribune and the Police Department reported today that Brian Thomson's illegal activities were detected through a "sting" operation at the department, reportedly using "fake drugs."  In other words, he was set up.  The activities uncovered by the sting led to an "audit" of the evidence room which revealed additional "manipulations" of evidence, as reported in an earlier blog below.  At this time, it is completely unknown the quantity of evidence that is affected by the "manipulations", or whether that can even be determined. 

Evidence rooms are sacrosanct from the standpoint of the integrity of evidence.  The fact that there was some sort of known tampering going on could potentially rasise questions about every piece of evidence in the room, particulary if it is of the type tampered with.  Once has to wonder how long this has been going on before being detected.  If it has beeen going on for some time, how could that even happen? 

La Crosse County District Attorney, Tim Gruenke, has announced that the discovery of "manipulation" by an officer in the evidence room at the La Crosse Police Department has resulted in an audit which has in turn exposed more "manipulation" of evidence.    His news release this morning was in an email to the La Crosse Area Criminal Defense Lawyers (LACDL) and the La Crosse Public Defender's Office.

 This is obviously a shocking revelation.  At this point, it is speculative, but my reading is that there is likely a connection between this audit and the recent arrest of La Crosse Police Lt. Brian Thomson.   If there was tampering of the seals, it may have been from drug use.  To date, the full details of the activities of Lt. Brian Thomson have not been revealed.  See my earlier blog regarding that situation.  He is scheduled to return to court on October 2nd.  Something tells me there may be more delays.

We will be watching these situations very closely and will report further details as they become available.  In the meantime, I applaud Mr. Gruenke for alerting us to these issues.

I recently happened upon a case involving a local police officer that raised my eyebrows.  It certainly seemed newsworthy, particularly considering what  often poses for news around here.  However, there was never any mention of it in any of the local news outlets.  The circumstances also made the basis for criminal charges, though it does not appear any such action was ever taken.  Since the La Crosse Tribune, WKBT, WXOW, and WIZM either did not report or missed this story, I thought I would put it out there for you, or it "never happed" (WIZM's slogan is, "If you don't want to hear about here, don't let it happen.").  But first, let me make some observations:

We should all have the utmost respect for the police.  They put themselves in harm's way to keep the peace and protect us and our property.  However, occasionally an officer behaves in a way unworthy of our respect, which tarnishes the badge for all police.  When such a thing occurs, equal treatment in the law is critical.  Favoritism in the law is repugnant to our sense of justice and fair play.     

When you think about it, one of the major roles of a police officer is "professional witness."  They are out in the field making observations that support their arrests.  When the charging document, called a Criminal Complaint, is issued, it frequently is bolstered by the arresting officer's own incident report, which then serves as the "factual basis" for the charges.  The factual basis must establish "probable cause" for the charges in the Complaint, or the charges must be dismissed.  A formal "complainant", usually a county deputy, will often make a statement in the Complaint vouching for the credibility of the officer making the report.  Ultimately, unless a prosecutor has a credible witness to go to trial with, he/she has no case.  Police make GREAT witnesses for the prosecution, because jurors' may have a psychological indebtedness to them for all they do for us.  Police MUST be honest for the system to work. Now, on to the story:

In December 2012, I was informed by a La Crosse County Assistant District Attorney that James Hackett, a principal prosecution witness for one of the cases I was defending, had "resigned" his position as a patrolman for the La Crosse Police Department.  I was told the resignation stemmed from lying to the police during an investigation.  Incredibly, the ADA stated that Hackett was still going to be used as a witness in the cases that had been charged before his resignation. 

I assumed I would be able to  learn further details from the local newspaper.  That never happened.  So, I drafted an open records request and was given the reports relative to the incident.  You can read the full reports below.

According to the reports, Hackett's then live-in girlfriend was intentionally locked out of Hackett's residence during a   party hosted by Hackett.  Apparently, she was very intoxicated and causing trouble, so one of the guests locked her out.  She was wearing a skirt and had no shoes on.  A neighbor eventually called the police due to the commotion she was making outside.  It was after Midnight.

When Hackett's fellow officers arrived, they found Hackett's pistol, a ".380", and a holster laying in his yard.  The girlfriend said she was standing outside the front door holding the handgun up and yelling to get back in the house.  She claimed she got the gun out of his car glove box using the key she kept on her person.  She said the gun was always kept there.  She claimed she had been drinking "UV Blue" vodka at the house, and that Hackett had provided it to her.  She was NOT of legal age to drink.

This is my opinion only, but my reading of the reports is that Hackett fed the police a total cock-and-bull story to cover his rear.  First, Hackett told the police that he never furnished alcohol to his underage girlfriend.  When he was confronted with a text message he sent to the girlfriend stating he had purchased UV Blue vodka for her, he told them he bought it but was holding the vodka until her mother arrived (Wisconsin allows underage consumption of alcohol if a parent is present and agrees).  He told them that her mother was supposed to meet him for the first time that night.  His girlfriend had no knowledge of this.  She was surprised Hackett said that, because her mother lived in Pennsylvania.  The police later spoke with her father, who confirmed that they live in Pennsylvania and no plans to meet Hackett that night in Wisconsin.

Hackett also told the police that his girlfriend had been out somewhere else and returned home intoxicated.  He was unable to explain why she would be gone in the first place, because her mother was supposedly scheduled to come over to meet him.  He said when the girlfriend arrived, he told her she had to leave.  She left and came back.  He said he eventually had to lock her out when she refused to leave.  Perhaps worrying that he might be seen as encouraging drunk driving (with his own car at that), he explained that he thought her mother had picked her up.  Lies beget lies.

It gets worse:  Hackett also told the police that the first time he knew his girl friend had his handgun was when the police arrived and showed it to him in the yard.  However, the police questioned him about a text message he wrote prior to their arrival which said, "where is the .380".   Nonetheless, Hackett maintained that he was not looking for the gun prior to their arrival. 

With regard to how his pistol ended up on the front lawn, Hackett told the police that his girlfriend must have taken it from the upstairs of his residence without his knowledge.  He said he was sure it was stored under his bed.  He also told the police that the couple had an argument two weeks prior.  During that episode, she got his gun out.  While she did not threaten him or her, he "contacted her wearing a bullet resistant vest. "  That time the gun had been left out on his desk.  I guess he didn't learn any lesson from that episode.
 
Hackett was allowed to resign from the police force.  Despite strong evidence that he furnished alcohol to the girlfriend, his repeated lies to cover up for furnishing the alcohol, not to mention gross negligence in the safekeeping of his gun, he was not arrested, cited or charged with anything.  Keep in mind, lying to the police is "Resisting or Obstructing", a Class A Misdemeanor punishable by 9 months jail and/or a $10,000.00 fine.  Wis. Stat.  946.41.  Not only that, he was referred to as the "victim" in the reports. 

His girlfriend was arrested on charges of Disorderly Conduct with a Weapon. Wis. Stat.  947.01(1) & 939.63.   A subsequent report stated she should be arrested for bail jumping because she repeatedly texted Hackett that very day, after just being released with a "no-contact" on her bond.  However, according to CCAP, an underage alcohol citation is the only charge issued to her.  CCAP further notes that the citation was transferred to City court.  The ultimate disposition is unknown.

These police reports had to have been looked over by a prosecuting attorney to determine whether--and what--charges should have resulted from these events.  Now, I'm just spit-balling here, but it seems that this outcome may have been quite different for the average citizen.