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 In an unpublished opinion in State of Wisconsin v. Gumersinda Gonzalez, the Court Appeals ruled that the odor of alcohol, without any other indicators of impairment, including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 Other unpublished opinions with similar circumstances, State v. Meyer, No. 2010AP336-CR, unpublished slip op. (WI App July 14, 2010), and County of Sauk v. Leon, No. 2010AP1593, unpublished slip op.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 However, with three standing unpublished opinions, risking an authoritative published opinion would not seem their wisest choice.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