State v. Scott William Forrett, 19AP1850, 2022 WI 37, 6/3/2022, affirming a published court of appeals decision; case activity (including briefs)

In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying
Continue Reading SCOW Holds Previous Blood-draw Refusals Can’t be OWI ‘Priors’

State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)

A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the
Continue Reading SCOW Makes it Tougher to Attack Prior OWIs

State v. Jennifer A. Jenkins, 2020AP1243-CR, 3/1/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Jenkins, convicted of OWI 2nd, raised some interesting and unusual challenges to the trial court’s order denying her motion to suppress.  (1) The arresting officer’s testimony was incredible as a matter of law. (2) He unlawfully stopped her car outside of his jurisdiction. And (3) her blood draw was painful, inordinately long, and therefore unreasonable. The court of appeals rejected
Continue Reading Court of Appeals Rejects Challenges to Denial of Suppression in OWI Case

It is often – but not always – fairly obvious when someone is drunk. The telltale lack of coordination, slurred speech, and of course, the smell can quickly tip off the police that they are dealing with a drunk driver. From there, measuring how drunk the arrestee is fairly straightforward and can be done using a blood test or breathalyzer. When the substance involved is something other than alcohol, determining whether a driver is under the influence can be
Continue Reading How is DUI Testing Done for Substances Other Than Alcohol?

Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.

Steinert was stopped for an equipment violation. The officers noted some possible indicia of intoxication (but no odor of intoxicants) and Steinert was in possession of a syringe and admitted to having
Continue Reading Police had Probable Cause to Arrest for Operating with a Restricted Controlled Substance

State v. Randy J. Promer, 2020AP1715-CR, 12/21/21, District 3 (not recommended for publication); case activity (including briefs).

Last term, SCOTUS rejected the idea that “community caretaking” is a standalone doctrine that justifies warrantless searches and seizures in the home. See Caniglia v. Strom, 141 S. Ct. 1596 (2021). Concurring opinions raised the possibility that the doctrine either no longer exists or applies only to the search of impounded vehicles.  See our post. The court of appeals
Continue Reading Community Caretaker Doctrine Still Applies to Traffic Stops

State v. Michael T. Paczkowski, 2021AP340, 9/29/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Paczkowski crashed his motorcycle, and responding deputies requested that he take a preliminary breath test. He agreed and blew a .149. The circuit court held that he deputies lacked the requisite probable cause to ask for the test, but the court of appeals disagrees and reverses.

Though our state’s courts speak of “probable cause” for a PBT, this is distinct
Continue Reading COA upholds probable cause finding to request PBT

State v. Scott William Forrett, 2019AP1850-CR, petition for review of a published decision of the court of appeals granted 9/14/21; case activity (including links to briefs)

Issue presented
Wisconsin’s escalating OWI penalty scheme counts a person’s refusal to consent to a blood draw as a basis for enhancing the penalty for future offenses. Is that scheme unconstitutional because it penalizes a defendant’s exercise of the Fourth Amendment right to be free from an warrantless search?
As our post on
Continue Reading SCOW will Address Whether Refusal of Blood Draw Can Be Used to Enhance OWI Penalties

In Wisconsin, drunk driving is a factor in almost 3,000 injuries and 170 fatalities each year, and operating while intoxicated (OWI) is a criminal offense that can often result in serious consequences. If you are arrested under suspicion of driving while impaired by drugs or alcohol and have no prior record, you may be fortunate to avoid some of the more severe criminal penalties that apply for repeat offenders. Under certain circumstances, however, you may face the
Continue Reading When Can First-Time OWI Offenders Face Additional Penalties?