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.  

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.