Wisconsin Municipal OWI

Prosecution Douglas Hoffer

Assistant City Attorney City of Eau Claire douglas.hoffer@eauclairewi.gov

douglashoffer@gmail.com 715-839-6006

Rick Trindl Arenz, Molter, Macy, Riffle & Larson SC

rtrindl@ammr.net 262-548-1340

10/16/2015

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WISCONSIN MUNICIPAL OWI LAW

I. Municipal Court Jurisdiction over 1st Offense OWI/PAC/OCS citations

a. Municipal Court has jurisdiction to hear civil forfeitures

State v. Albright First offense OWI is generally a civil forfeiture

98 Wis. 2d 663 even though there is a possibility of imprisonment if

298 N.W.2d 196 forfeiture judgment is not paid.

(Ct. App. 1980)

Wis. Stat. 755.045(1) Municipal court has exclusive jurisdiction over

actions seeking to impose forfeitures for violations

of municipal ordinances except for actions

transferred to courts of record or where equitable

relief is demanded.

Wis. Stat. 800.035(5)(c) Defendant charged with OWI 1st offense may

request a jury trial within 10 days after entry of plea

(thus transferring case to circuit court).

City of Fond du Lac v. Kaehne Ten day period for requesting jury trial on OWI 1st

229 Wis. 2d 323 offense begins to run when defendant appears in

599 N.W.2d 870 court to enter plea or when written guilty plea is

(Ct. App. 1999) received by court.

b. Jurisdictional limitations based on valid prior convictions

City of Kenosha v. Jensen Municipal courts lack authority to try and convict

184 Wis. 2d 91, 99 1st offense OWI where valid prior conviction exists

516 N.W.2d 4, 7 (Ct. App. 1994)

State v. Strohman Municipal courts lack authority to try and convict

2015 WI App 28, ¶ 2 1st offense OWI where valid prior conviction exists

361 Wis. 2d 286 (and criminal statute of limitations does not toll

862 N.W.2d 619 based on civil OWI conviction).

(unpublished)

II. Circuit Court Jurisdiction over 1st Offense OWI citations

a. Limitations based on valid prior convictions

Note: The issue of circuit court subject matter jurisdiction over 1st offense OWI where a

valid prior conviction exists is currently in doubt. Two recent (unpublished) Court of

Appeals opinions reached contradictory conclusions on this issue.

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State v. Navrestad Subject matter jurisdiction is not revoked when a

2014AP2273 a circuit court enters a 1st offense OWI conviction

2015WL3997004 where valid prior conviction exists.

(Wis. Ct. App. July 2, 2015)

(unpublished)

City of Stevens Point v. Lowery Circuit court lacks subject matter jurisdiction to

2015 WI App 28 enter judgment on a 1st offense OWI when

361 Wis. 2d 285 defendant had valid prior conviction(s).

862 N.W.2d 619

(unpublished)

Wis. Const. art VII § 8 Except as otherwise provided by law, the circuit

court shall have original jurisdiction in all matters

civil and criminal within this state and such

appellate jurisdiction in the circuit as the legislature

may prescribe by law.

Note: Many defense attorneys cite Rohner (below) in support of the proposition that the

existence of a valid prior OWI conviction deprives circuit courts of subject matter

jurisdiction to enter an OWI 1st offense conviction. This argument ignores the holding of

Mikrut (below) which held that circuit court subject matter jurisdiction may not be

revoked by statute.

Walworth Cnty v. Rohner Circuit court lacks subject matter jurisdiction to

108 Wis. 2d 713, 721 enter 1st offense OWI conviction when defendant

324 N.W.2d 682, 685 (1982) has valid prior conviction(s).

Vill. of Trempealeau v. Mikrut Noncompliance with statutory requirements

2004 WI 79, 273 Wis. 2d 76 pertaining to the exercise of subject-matter

681 N.W.2d 190 jurisdiction may result in loss of court competency

but does not negate subject matter jurisdiction.

Note: In addition to Mikrut, a wide body of Wisconsin case law concludes that Wis.

Const. art. VII § 8’s grant of subject matter jurisdiction cannot be revoked by statute:

See Starks, 2013 WI 69 at ¶ 36; Stern, 2006 WI App 193 at ¶ 24; Xcel Energy,

2013 WI 64 at ¶ 27; Brefka, 2013 WI 54 at ¶ 16; Campbell, 2006 WI 99 at ¶¶ 44-

45; Kohler, 204 Wis. 2d at 336-37; Cepukenas v. Cepukenas, 221 Wis. 2d 166,

170, 584 N.W.2d 227, 229 (Ct. App. 1998); In re Termination of Parental Rights

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to Joshua S., 2005 WI 84, ¶ 16, 282 Wis. 2d 150, 160, 698 N.W.2d 631, 635;

Currier v. Wisconsin Dep't of Revenue, 2006 WI App 12, ¶ 6 n. 2, 288 Wis. 2d

693, 698 n. 2, 709 N.W.2d 520, 523; In re Guardianship of Carly A.T., 2004 WI

App 73, ¶¶ 6- 7, 272 Wis. 2d 662, 667, 679 N.W.2d 903, 905; In re Commitment

of Bollig, 222 Wis. 2d 558, 565, 587 N.W.2d 908, 911 (Ct. App. 1998).

III. Elements of OWI offense

a. Operation

Wis. Stat. § 346.63(3)(b) “Operate” means the physical manipulation or

activation of any of the controls of a motor vehicle

necessary to put it in to motion.

Milwaukee Cnty. v. Proegler A finding of intent to drive or move vehicle is not

95 Wis. 2d 614 required to find defendant guilty of operating a

291 N.W.2d 608 motor vehicle while under the influence of an

(Ct. App. 1980) intoxicant.

Vill. of Cross Plains v. Haanstad Defendant who sat in driver’s seat of running car

2006 WI 16 was not “operating” vehicle where no evidence

288 Wis. 2d 573 suggested that defendant operated any vehicle

709 N.W.2d 447 controls and there was no dispute defendant did not

activate any controls.

Vill. of Elkhart Lake Sitting behind steering wheel of a motor vehicle

v. Borzyskowski whose engine is running can provide probable cause

123 Wis. 2d 185 that vehicle was “operated.”

366 N.W.2d 506

(Ct. App. 1985)

b. Motor Vehicle

Wis. Stat. § 340.01(35) “Motor vehicle” means a vehicle, including a

combination of 2 or more vehicles or an articulated

vehicle, which is self-propelled, except a vehicle

operated exclusively on a rail. “Motor vehicle”

includes, without limitation, a commercial motor

vehicle or a vehicle which is propelled by electric

power obtained from overhead trolley wires but not

operated on rails. A snowmobile, an all-terrain

vehicle, a utility terrain vehicle, and an electric

personal assistive mobility device shall be

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considered motor vehicles only for purposes made

specifically applicable by statute.

c. Highway

Wis. Stat. § 340.01(22) “Highway” means:

(1) all public ways and thoroughfares and bridges

on the same.

(2) It includes the entire width between the

boundary lines of every way open to the use of the

public as a matter of right for the purposes of

vehicular travel.

(3) It includes those roads or driveways in the state,

county or municipal parks and in state forests which

have been opened to the use of the public for the

purpose of vehicular travel

(4) and roads or driveways upon the grounds of

public schools, as defined in s. 115.01(1), and

institutions under the jurisdiction of the county

board of supervisors, but does not include private

roads or driveways as defined in sub. (46).

In Interest of E.J.H. “Highway” means entire right of way – it is not

112 Wis. 2d 439 limited to the paved portion or the paved portion

334 N.W.2d 77 (1983) plus the shoulder.

State v. Mertes That vehicle was operated “on a highway” may be

2008 WI App 179 proved by circumstantial evidence.

315 Wis. 2d 756

762 N.W.2d 813

d. Premises held out for the public

Wis. Stat. § 346.61 In addition to being applicable upon highways, ss.

346.62 to 346.64 are applicable upon all premises

held out to the public for use of their motor

vehicles, all premises provided by employers to

employees for the use of their motor vehicles and

all premises provided to tenants of rental housing in

buildings of 4 or more units for the use of their

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motor vehicles, whether such premises are publicly

or privately owned and whether or not a fee is

charged for the use thereof. Sections 346.62 to

346.64 do not apply to private parking areas at

farms or single-family residences.

State v. Tecza The roadways of the Geneva National (gated)

2008 WI App 79 ¶ 22 community were “held out to the public for use of

312 Wis. 2d 395, 405 their motor vehicles” because on any given day any

751 N.W.2d 896, 901 licensed driver could enter the community

unchallenged; therefore, the drunken driving law of

the State applies as provided in Wis. Stat. § 346.61.

City of La Crosse v. Richling The parking lot of bar and restaurant was “held out

178 Wis. 2d 856 the public” because potential customers are part of

505 N.W.2d 448 (Ct. App. 1993) the public.

e. Under the influence

Wis. Stat. § 346.63 (1) No person may drive or operate a motor vehicle

while:

(a) Under the influence of an intoxicant, a

controlled substance, a controlled substance analog

or any combination of an intoxicant, a controlled

substance and a controlled substance analog, under

the influence of any other drug to a degree which

renders him or her incapable of safely driving, or

under the combined influence of an intoxicant and

any other drug to a degree which renders him or her

incapable of safely driving

State v. Paegelow Under the influence is considerably less than degree

56 Wis. 2d 815, 820 of intoxication that would render a person incapable

202 N.W.2d 916, 918 (1973) of being able to understand and voluntarily waive

his constitutional rights.

f. Prohibited Alcohol Concentration

Wis. Stat. § 885.235(1)(a) “Alcohol concentration” means the number of

grams of alcohol in 100 milliliters of a person's

blood or the number of grams of alcohol in 210

liters of a person's breath.

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Wis. Stat. § 340.01(46m) “Prohibited alcohol concentration” means one of the

following:

(a) If the person has 2 or fewer prior convictions,

suspensions, or revocations, as counted under s.

343.307(1), an alcohol concentration of 0.08 or

more.

(c) If the person is subject to an order under s.

343.301 or if the person has 3 or more prior

convictions, suspensions or revocations, as counted

under s. 343.307(1), an alcohol concentration of

more than 0.02.

State v. Muehlenberg Constitutionality of penalizing “status” of having

118 Wis. 2d 502 BAC of 0.10% or more upheld. Statute not void for

347 N.W.2d 914 (Ct. App. 1984) vagueness, as person of common intelligence could,

with fair degree of definiteness, know when

consumption of alcohol was putting him or her in

danger of violating statute.

State v. McManus Per se prohibited alcohol concentration is separate

152 Wis. 2d 113 offense that is constitutional – statute does not

447 N.W.2d 654 (1989) violate due process or equal protection and is not

void for vagueness.

g. With a Detectable Amount of a Restricted Controlled Substance

Wis. Stat. § 340.01 (50m) “Restricted controlled substance” means any

of the following:

(a) A controlled substance included in schedule I

under ch. 961 other than a tetrahydrocannabinol.

(b) A controlled substance analog, as defined in s.

961.01(4m), of a controlled substance described in

par. (a).

(c) Cocaine or any of its metabolites.

(d) Methamphetamine.

(e) Delta-9-tetrahydrocannabinol.

State v. Smet Statute prohibiting operation of motor vehicle while

2005 WI App 263 having a detectable amount of a restricted

288 Wis. 2d 525 controlled substance in one’s blood did not violate

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709 N.W.2d 474 due process or equal protection.

h. Absolute Sobriety

Wis. Stat. § 346.63(2m) If a person has not attained the legal drinking age,

as defined in s. 125.02(8m), the person may not

drive or operate a motor vehicle while he or she has

an alcohol concentration of more than 0.0 but not

more than 0.08. One penalty for violation of this

subsection is suspension of a person's operating

privilege under s. 343.30(1p). The person is eligible

for an occupational license under s. 343. 10 at any

time. If a person arrested for a violation of this

subsection refuses to take a test under s. 343.305,

the refusal is a separate violation and the person is

subject to revocation of the person's operating

privilege under s. 343.305(10)(em).

Wis. Stat. § 343.30(1p) Notwithstanding sub. (1), a court shall suspend the

operating privilege of a person for 3 months upon

the person's conviction by the court for violation of

s. 346.63(2m) or a local ordinance in conformity

with s. 346.63(2m). If there was a minor passenger

under 16 years of age in the motor vehicle at the

time of the violation that gave rise to the conviction

under s. 346.63(2m) or a local ordinance in

conformity with s. 346.63(2m), the court shall

suspend the operating privilege of the person for 6

months.

i. Hazardous inhalants

Wis. Stat. § 340.01(20r) “Hazardous inhalant” means a substance that is

ingested, inhaled, or otherwise introduced into the

human body in a manner that does not comply with

any cautionary labeling that is required for the

substance under s. 100.37 or under federal law, or in

a manner that is not intended by the manufacturer of

the substance, and that is intended to induce

intoxication or elation, to stupefy the central

nervous system, or to change the human audio,

visual, or mental processes.

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IV. Suppression Motions & Motions to Dismiss

a. Seizure

State v. Macho On a Motion to Suppress, when the fact or timing of

2012 WI App 73, ¶ 5 a seizure is at issue, the defendant has the initial

342 Wis. 2d 251, 816 N.W.2d 352 burden to establish that a seizure subject to Fourth

(unpublished) Amendment protection occurred.

Gray v. State On a Motion to Suppress evidence because of an

243 Wis. 57, 63, 9 N.W.2d 68 unlawful seizure, the party asserting the

(1943) transgression has the burden of proving it occurred.

Cnty. of Grant v. Vogt “[T]he 4th

Amendment and Article I, Section 11 of

2014 WI 76, 356 Wis. 2d 343 the Wisconsin Constitution are not implicated until

850 N.W.2d 253 a government agent ‘seizes’ a person.”

United States v. Mendenhall “A seizure occurs only when the officer, by means

446 U.S. 544, 554 of physical force or show of authority, has in some

100 S.Ct. 1870 (1980) way restrained the liberty of a citizen.”

Cnty. of Grant v. Vogt Wisconsin has adopted the Mendenhall test for

2014 WI 76, ¶ 30, 356 Wis. 2d 343 determining whether a seizure took place.

850 N.W.2d 253 (This is an objective test).

Cnty. of Grant v. Vogt Police questioning, by itself, is unlikely to result in

2014 WI 76, ¶ 24, 356 Wis. 2d 343 a 4th

Amendment violation.

850 N.W.2d 253

United States v. Broomfield Telling a pedestrian to stop and take his hands out

417 F.3d 654 (2005) of his pockets did not constitute a seizure.

I.N.S. v. Delgado “While most citizens will respond to a police

466 U.S. 210 request, the fact that people do so, and do so

104 S. Ct. 1758 (1984) without being told they are free not to respond,

hardly eliminates the consensual nature of the

response.”

Examples of circumstances that might suggest a seizure:

The threatening presence of several officers

The display of a weapon by an officer

Some physical touching of the person of the citizen

The use of language or tone of voice indicating that compliance with the

officer’s request might be compelled

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Vogt at ¶ 23, 53 quoting Mendenhall at 554

Note: The Wisconsin Supreme Court interpreted “display of a weapon” not simply as

carrying a weapon, but rather as “brandish[ing]” a weapon. Vogt at ¶ 53.

b. Reasonable Suspicion

State v. Young “An investigatory stop is constitutional if the police

294 Wis. 2d 1 have reasonable suspicion that a crime has been

717 N.W.2d 729 (2006) committed, is being committed, or is about to be

committed.”

Whether the police have reasonable suspicion is

determined by viewing the facts “from the

standpoint of an objectively reasonable police

officer.”

An investigatory stop, though a seizure, allows

police officers to briefly detain a person for

purposes of investigating possible criminal behavior

even though there is no probable cause to make an

arrest.

Reasonable suspicion requires that a police officer

possess specific and articulable facts that warrant a

reasonable belief that criminal activity is afoot.

State v. Anderson Although police officers need more than a hunch,

155 Wis. 2d 77, 84 “police officers are not required to rule out the

454 N.W.2d 763 (1990). possibility of innocent behavior before initiating a

brief stop.”

State v. Young “[W]hat constitutes reasonable suspicion is a

212 Wis.2d 417, 424 common sense test: under all the facts and

569 N.W.2d 84 circumstances present, what would a reasonable

(Ct.App.1997) police officer reasonably suspect in light of his or

her training and experience.”

State v. Waldner This common sense approach strikes balance

206 Wis. 2d 51 between individual privacy and societal interest in

556 N.W.2d 681 (1996) allowing police reasonable scope of action in

discharging their responsibility.

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State v. Post A police officer must be able to identify “specific

2007 WI 60, ¶ 10 and articulable facts” and draw “rational inferences

301 Wis.2d 1 from those facts” sufficient to constitute reasonable

733 N.W.2d 634 suspicion to justify an extension of a driver's

detention.

An officer's “inchoate and unparticularized

suspicion or ‘hunch’ ” is not enough to establish

reasonable suspicion.

Framework courts use for determining validity of an investigatory stop:

[S]uspicious conduct by its very nature is ambiguous, and the

[principal] function of the investigative stop is to quickly resolve

that ambiguity. Therefore if any reasonable inference of

wrongful conduct can be objectively discerned,

notwithstanding the existence of other innocent inferences that

could be drawn, the officers have the right to temporarily

detain the individual for the purpose of inquiry.

Anderson, 155 Wis. 2d at 84; Young, 294 Wis. 2d at 17 (emphasis added).

c. Community Caretaker

State v. Kramer The public has a substantial interest in encouraging

2009 WI 14 police officers to be on the lookout for and offer aid

315 Wis. 2d 414, 438-39 to motorists and other individuals who may be

759 N.W.2d 598, 611 stranded or otherwise in need of assistance,

especially after dark when help is not close at hand.

State v. Goebel When police stop to assist motorists, such contact

103 Wis. 2d 203, 208 is “not only authorized, but constitute[s] an

307 N.W.2d 915 (1981) important duty of law enforcement officers.”

State v. Ziedonis The prosecution bears the burden of proving that the

2005 WI App. 249 community caretaker exception applies. Wisconsin

287 Wis.2d 831, ¶ 15 courts have cautioned against taking a too-narrow

707 N.W.2d 565 view in determining whether the community

caretaker function is present.

State v. Ziedonis The “officers’ fear for the safety of the occupant”

2005 WI App. 249 was a significant public interest supporting

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287 Wis.2d 831, ¶ 29 community caretaker function, because the officers

707 N.W.2d 565 did not know the physical condition of the person

and reasonably concluded that the situation was an

emergency.

State v. Kramer The “totally divorced” language from Cady does

2009 WI 14, ¶ 30 not mean that if the police officer has any subjective

315 Wis. 2d 414, 432-33 law enforcement concerns, he cannot be engaging in

759 N.W.2d 598, 608 a valid community caretaker function. Rather, in a

community caretaker context, when under the

totality of the circumstances an objectively

reasonable basis for the community caretaker

function is shown, that determination is not negated

by the officer's subjective law enforcement

concerns.

3 Step test for evaluating claims of police community caretaker functions:

A seizure occurred

If so, whether the police conduct was bona fide community caretaker activity

If so, whether public need and interest outweigh the intrusion upon the privacy of

the individual

State v. Kramer, 2009 WI 14, ¶ 21, 315 Wis. 2d 414, 427, 759 N.W.2d 598, 605

d. Right to extend stop

State v. Colstad Whether a valid traffic stop may be lawfully extended to

2003 WI App 25, ¶ 19 administer field sobriety tests turns on “whether the officer

260 Wis.2d 406 discover[s] information subsequent to the

659 N.W.2d 394 initial stop which, when combined with information already

acquired, provide[s] reasonable suspicion [of] ... driving

while under the influence of an intoxicant.”

State v. Young “[W]hat constitutes reasonable suspicion is a common

212 Wis.2d 417, 424 sense test: under all the facts and circumstances present,

569 N.W.2d 84 what would a reasonable police officer reasonably suspect

(Ct.App.1997) in light of his or her training and experience.”

State v. Post A police officer must be able to identify “specific and

2007 WI 60, ¶ 10 articulable facts” and draw “rational inferences from those

301 Wis.2d 1 facts” sufficient to constitute reasonable suspicion to justify

733 N.W.2d 634 an extension of a driver's detention.

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An officer's “inchoate and unparticularized suspicion or

‘hunch’ ” is not enough to establish reasonable suspicion.

e. Administering Preliminary Breath Test (PBT)

Cnty. of Jefferson v. Renz Police officers may use PBT as screening device to

231 Wis. 2d 293 establish probable cause to arrest. PBT result is

603 N.W.2d 541 (1999) admissible to show probable cause for arrest.

Quantum of evidence necessary to administer PBT

is greater than reasonable suspicion necessary to

justify investigative stop but less than the level of

proof required to establish probable cause for arrest.

Wis. Stat. § 343.303 PBT result is admissible to demonstrate probable

cause for arrest, or to prove chemical test was

properly required or requested.

State v. Felton Field Sobriety Tests are not necessarily needed to

2012 WI App 114, ¶ 10 demonstrate quantum of evidence necessary to

344 Wis. 2d 483 administer PBT.

824 N.W.2d 871

Fischer v. Ozaukee Cnty. Circuit Court

741 F. Supp. 2d 944 Excluding expert opinion which relied in part on

(E.D. Wis. 2010) PBT result deprived defendant of right to present a

defense.

f. Probable cause to arrest

State v. Lange Probable cause to arrest defendant for operating

2009 WI 49, 317 Wis. 2d 383 while under the influence of an intoxicant refers to

766 N.W.2d 551 that quantum of evidence within the arresting

officer’s knowledge at the time of the arrest that

would lead a reasonable law enforcement officer to

believe that the defendant was operating a motor

vehicle while under the influence of an intoxicant;

burden is on the state to show that the officer had

probable cause to arrest.

The question of probable cause to arrest must be

assessed on a case-by-case basis, looking at the

totality of the circumstances.

In determining whether there is probable cause to

arrest, the court applies an objective standard,

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considering the information available to the officer

and the officer’s training and experience.

State v. Lange Evidence of intoxicant usage – odors, an admission,

2009 WI 49, ¶ 37 or containers strengthen existence of probable cause

317 Wis. 2d 383, 398 but such evidence is not required to establish

766 N.W.2d 551, 558 probable cause.

Washburn County v. Smith No general rule requiring field sobriety tests in all

2008 WI 23, 308 Wis. 2d 65 cases as a prerequisite for establishing probable

746 N.W.2d 243 cause to arrest a driver for operating a motor vehicle

while under the influence of an intoxicant.

State v. Paszek “Probable cause to arrest refers to that quantum of

50 Wis. 2d 619, 624-25 evidence which would lead a reasonable police

184 N.W.2d 836 officer to believe that the defendant probably

(1971) committed a crime.... It is only necessary that the

information lead a reasonable officer to believe that

guilt is more than a mere possibility, and it is well

established that the belief may be predicated in part

upon hearsay information.”

g. Search Incident to Arrest

Arizona v. Gant Motor vehicle search incident to arrest is

556 U.S. 332 permissible when arrestee is unsecured and

129 S. Ct. 1710 (2009) within reaching distance of the passenger

compartment or when it is reasonable to believe

evidence relevant to the crime of arrest might be

found in vehicle.

Note: It is almost always be reasonable to believe evidence relevant to an OWI might be

found in the vehicle.

V. Implied consent

a. Defendant is arrested for impaired driving and refuses to take test.

Wis. Stat. 343.305(9)(a) Police officer shall immediately prepare “Notice of

Intent to Revoke” and give/send a copy to:

a. The defendant

b. The Wisconsin Dept. of Transportation

c. Municipal or Circuit Court that will hear matter

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d. Prosecutor for Municipal Court or Circuit Court

that will prosecute matter.

State v. Moline Officer’s failure to “immediately” serve Notice of

170 Wis. 2d 531 Intent to Revoke does not deprive Court of

(Ct. App. 1992) jurisdiction to hold refusal hearing.

b. Rules of Civil Procedure apply to refusal hearings except where different

procedure is prescribed by statute or rule.

Wis. Stat. 801.01 Chapters 801 to 847 govern procedure and practice

State v. Schoepp in special proceedings (like refusal hearings) except

204 Wis. 2d 266 where different procedure is prescribed by statute or

(Ct. App. 1996) rule.

Note: How to calculate ten days for purposes of the refusal statute is an unsettled

question. Possible issue exists regarding whether “10 day” language found

in § 343.305 prescribes a different procedure.

Wis. Stat. 801.15 If time period is less than 11 days, Saturdays,

Sundays and holidays shall be excluded in the

computation.

State v. Nordness Wis. Stat. 343.305(2) declares legislative policy;

128 Wis. 2d 15, 28 remainder of § 343.305 outlines procedures for

(1986) implementing this policy.

State v. Moline

170 Wis. 2d 531, 534 Request for refusal hearing received by Court on

(Ct. App. 1992) July 11th

for Notice of Intent to Revoke served on

July 1st was received on “the last day of the ten-day

notice period…”

State v. Carlson

2002 WI App 44 Parties (apparently) agreed not to count weekends

250 Wis. 2d 562 or holidays towards 10 day deadline.

No discovery except in limited circumstances with leave of the court.

Neither party is entitled to pretrial discovery in any refusal hearing, except that, if the

defendant moves within 30 days after the initial appearance and shows cause the Court

may allow limited discovery. Wis. Stat. § 343.305(9)(a).

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c. Court authority to hold refusal hearing or dismiss refusal depends on timely

refusal hearing request made in writing.

Wis. Stat. § 343.305(9) Request must be in writing.

Village of Elm Grove v. Brefka

2013 WI 54 Courts lack competency to hear defendant’s request

348 Wis. 2d 282 to extend 10 day time limit. (Revocation is

automatic if request is not received within 10 days).

Wis. Stat. 343.305(10) Failure to timely request refusal hearing results in the

following consequences:

1. Revocation of operating privileges (length determined

by defendant’s offender status – see Wis. Stat. §

343.307(2)) – first offense is one year.

a. Revocation period reduced by any period of

revocation or suspension previously served for

underlying OWI or underlying underage absolute

sobriety.

2. 30 day wait for occupational license (if otherwise

qualified for occupational license)

3. Ignition interlock order

4. $50 ignition interlock surcharge

5. Assessment (if applicable)

Wis. Stat. § 343.350(10)(a) Revocation commences 30 days after refusal date if

defendant fails to timely request refusal hearing.

In re Refusal of Bentdahl The plain language of the statute and recent interpretation

2013 WI 106 of statutory provisions in Brefka demonstrates circuit courts

351 Wis. 2d 739 lack discretion to dismiss a refusal charge if the defendant

(See footnote 10) does not request a hearing within 10 days.

In re Refusal of Bentdahl Courts lack authority to dismiss refusals (1) if defendant

2013 WI 106 pleads not guilty; or (2) if defendant fails to timely request

351 Wis. 2d 739 refusal hearing.

-BUT-

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“We do recognize, however, that factual circumstances

distinct from those at issue today may arise, which make a

request for a refusal hearing within the ten-day limit or

entry of plea of guilty impossible. We do not decide what

the discretionary authority of the circuit court would be

under such circumstances.”

d. Notice of Intent to Revoke issued by police officer is adequate process to

provide refusal hearing court with jurisdiction.

Wis. Stat. § 343.305(9)(b) Use of Notice of Intent to Revoke by law enforcement

officer is adequate process to give the appropriate court

jurisdiction over the person.

State v. Schoepp Notice of Intent to Revoke is akin to Summons and

204 Wis. 2d at 271 Complaint requirements of Chapters 801 and 802.

(Ct. App. 1996)

In re Gautschi Technical defect in Notice of Intent to Revoke is not

2000 WI App 274 sufficient to deprive refusal hearing of personal jurisdiction

240 Wis. 2d 83

State v. Carlson Improperly revoking operating privileges for 19 days prior

2002 WI App 44 to holding refusal hearing was technical error.

250 Wis. 2d 562

Note: Are there other “threshold” issues that refusal hearings are permitted to consider

before examining statutorily limited substantive issues?

e. Refusal hearing issues are expressly limited by statute.

Wis. Stat.§ 343.305(9) Refusal hearing issues are strictly limited to:

State v. Nordness 1. Did the officer have probable cause and did the officer

128 Wis. 2d at 19 (1986) lawfully arrest the defendant?

In re Refusal of Anagnos 2. Did the police officer properly convey information

2012 WI 64 found in Wis. Stat. § 343.305(4) – (generally contained in

341 Wis. 2d 576 Informing the Accused form).

3. Did the defendant refuse the test?

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4. If defendant refused test, does he or she have affirmative

defense?

State v. Nordness There is no “actual driver” threshold issue. Refusal hearing

128 Wis. 2d at 27, 34 (1986) issues are limited to the four issues listed in the statute.

Restricting scope of refusal hearing does not deprive

defendant of due process. Procedural due process requires

that defendants be given notice and an opportunity to be

heard at a meaningful time and in a meaningful manner.

In re Refusal of Anagnos The issues that can be raised at a refusal hearing are strictly

2012 WI 64 ¶¶ 25, 33 limited to the issues enumerated in the refusal hearing

341 Wis. 2d 576 statute.

State v. Darling Trial courts power to regulate motor vehicle operating

143 Wis. 2d 839 privileges is not inherent, but instead is confined to those

(Ct. App. 1989) powers vested by the legislature. (This case is not a refusal

case. However, it stands for the important proposition that

court power is limited in matters involving the regulation of

motor vehicle operating privileges to powers explicitly

vested by statute).

City of Sun Prairie v. Davis

226 Wis. 2d 738 (1999) There are three areas where courts can exercise inherent

authority: 1) Court’s internal operations; 2) the regulation

of members of the bench and bar; and 3) ensuring that the

court functions efficiently and effectively to provide the

fair administration of justice.

Issue No. 1 - Probable Cause and lawful arrest

In re Refusal of Anagnos Defendant is not “lawfully” arrested if police did not have

2012 WI 64 reasonable suspicion or probable cause to stop defendant.

341 Wis. 2d 576

State v. Nordness “We view the revocation hearing as a determination merely

128 Wis. 2d 15 of an officer’s probable cause, not as a forum to weigh the

state’s and the defendant’s evidence…The trial court, in

18

terms of the probable cause inquiry, simply must ascertain

the plausibility of a police officer’s account.”

State v. Wille Prosecution’s (probable cause) burden of persuasion is

185 Wis. 2d 673 greater at suppression hearing than at refusal hearing.

(Ct. App. 1994)

State v. Babbitt Motorist’s refusal to perform field sobriety test may be

188 Wis. 2d 349 used as evidence of probable cause to arrest for driving

(Ct. App. 1994) under the influence.

County of Dane v. Sharpee Preliminary Breath Test (PBT) results may be considered

154 Wis. 2d 515, 520 as part of totality of circumstances upon which police

(Ct. App. 1990) officer’s probable cause determination rests.

State v. Wille An officer’s belief may be partially predicated on hearsay

185 Wis. 2d 673 information, and the officer may rely on the collective

(Ct. App. 1994) knowledge of the officer’s entire department.

Issue No. 2 – Did the officer properly read the language found in Wis. Stat.

343.305(4) (Informing the Accused form) to the defendant?

City of Mequon v. Hess Wis. Stat. § 343.305 does not require police officers to

158 Wis. 2d 500 inform defendants of all possible OWI penalties; only the

(Ct. App. 1990) statutorily prescribed penalties found in § 343.305.

In re Smith 2 different types of cases involving relay of required

2008 WI 23 information with two different types of analysis:

308 Wis. 2d 65

1. Failure to provide statutorily required information to the

Defendant.

a. Courts determine whether there was

“substantial” compliance.

2. Law enforcement officer provides all statutorily required

information but then provides further inaccurate

information in excess of his duty.

a. Courts apply Quelle test.

19

Note: In re Smith abrogated Quelle, below.

County of Ozaukee v.

Quelle, 198 Wis. 2d 269 Under the Quelle test the defendant must satisfy the court

(Ct. App. 1995) of all the following:

1. The officer either failed to meet or exceeded the duty to

inform the accused person in compliance with the

requirements of the implied consent statute.

2. The lack or oversupply of information was misleading.

3. The failure to properly inform the driver affected his or

her ability to make the choice about chemical testing.

State v. Piddington A court need not inquire into whether the information was

241 Wis. 2d 754 (2000) properly perceived or understood by the arrested person.

Issue No. 3 – Did the defendant refuse the test?

State v. Neitzel The obligation of the accused is to take the test promptly or

95 Wis. 2d 191 to refuse it promptly.

(1980)

State v. Rydeski Defendant must promptly submit or refuse to submit to the

214 Wis. 2d 101 requested test. There is no right to recant a refusal. A

(Ct. App. 1997) defendant’s offer to later take the test does not undo the

refusal.

343.305(6)(c)3 Failure to provide 2 separate, adequate breath samples in

State v. Grade proper sequence constitutes refusal.

165 Wis. 2d 143

(Ct. App. 1991)

Village of Elkhart Lake v. Verbal refusal is not necessary. Conduct of defendant may

Borzyskowski constitute refusal.

123 Wis. 2d 185

(Ct. App. 1985)

State v. Neitzel There is no right to consult with an attorney before

20

95 Wis. 2d 191 deciding whether to take test. Very limited exception to

State v. Reitter this rule exists if police have led defendant to believe he

227 Wis. 2d 213 will get opportunity to consult with an attorney prior to

taking the test.

State v. Grogan Miranda warnings do not interfere with defendant’s ability

2014 WI App 90 to make an informed choice under the implied consent law.

(unpublished)

State v. Spring Implied consent revocation upheld when defendant refused

204 Wis. 2d 343 to sign hospital consent form memorializing: 1) hospital

(Ct. App. 1996) would draw blood by order of officer; 2) blood would be

drawn only by medical personnel; 3) medical personnel

were immune from civil or criminal liability except for

civil liability for negligence; 4) defendant consented to the

test; 5) defendant understood test sample would be

submitted for analysis. Note: Court emphasized its

decision would not apply in a situation in which a form

recites complete waiver of hospital liability.

Issue No. 4 – Does defendant have affirmative defense to refusal finding?

Wis. Stat. 343.305(9)(a)5c Defendant must show by preponderance of the evidence

that refusal was due to physical inability to submit to the

test unrelated to the use of alcohol, controlled substances,

controlled substance analogs or other drugs.

In re Refusal of Bardwell Defendant’s lack of confidence in the primary test is not a

83 Wis. 2d 891, 900-01 valid defense.

(1978)

f. Refusal hearing burden of persuasion is “plausibility” not a weighing of

evidence in measuring credibility.

State v. Wille Burden of persuasion is plausibility and not a weighing of

185 Wis. 2d 673, 681 evidence in measuring credibility. “Indeed, the court need

(Ct. App. 1994) not even believe the officer’s account. It need only be

persuaded that the state’s account is plausible.”

21

In re Refusal of Anagnos Prosecution’s burden of proof at a refusal hearing is

2012 WI 64 “substantially less than at a suppression hearing.”

341 Wis. 2d 576, 603-06

(Ziegler, J., concurring)

g. Refusal charge is separate and distinct from the underlying OWI/PAC/OCS

charge(s).

In re Refusal of Anagnos A refusal charge is separate and distinct from

2012 WI 64 ¶ 67 OWI/PAC/OCS charge.

State v. Brooks Courts have discretion to dismiss refusal with guilty plea to

133 Wis. 2d 347 underlying OWI charge.

In re Refusal of Bentdahl The plain language of the statute and recent interpretation

2013 WI 106 of statutory provisions in Brefka demonstrates circuit courts

351 Wis. 2d 739 lack discretion to dismiss a refusal charge if the defendant

(See footnote 10) does not request a hearing within 10 days.

In re Refusal of Bentdahl Courts lack authority to dismiss refusals (1) if defendant

2013 WI 106 pleads not guilty; or (2) if defendant fails to timely request

351 Wis. 2d 739 refusal hearing.

-BUT-

“We do recognize, however, that factual circumstances

distinct from those at issue today may arise, which make a

request for a refusal hearing within the ten-day limit or

entry of plea of guilty impossible. We do not decide what

the discretionary authority of the circuit court would be

under such circumstances.”

h. Implications of finding unlawful refusal

Wis. Stat. § 343.305(9)(d) At conclusion of refusal hearing, or within five days

thereafter, the court must render a decision in the implied

consent case.

Village of Elkhart Lake v. Failure to render a timely decision does not result in

Borzyskowski divestiture of court’s jurisdiction.

22

123 Wis. 2d at 192-94

(Ct. App. 1985)

Wis. Stat. 343.305(10) Finding unlawful refusal results in the following

consequences:

1. Revocation of operating privileges (length

determined by defendant’s offender status – see

Wis. Stat. § 343.307(2)) – first offense is one

year.

a. Revocation period reduced by any

period of revocation or suspension

previously served for underlying OWI or

underage absolute sobriety.

2. 30 day wait for occupational license (if

otherwise qualified for occupational license)

3. Ignition interlock order

4. $50 ignition interlock surcharge

5. Assessment (if applicable)

i. Other considerations after defendant submits to primary test

Wis. Stat. § 343.305(5) Defendant may request alternative test provided by

the agency.

Defendant may, at his or her expense, request

reasonable opportunity for an additional test.

The failure or inability of a person to obtain a test at

his or her expense does not preclude the admission

of evidence of the results of the primary test.

State v. Donner Implied consent law permits arresting officer to

192 Wis. 2d 305 request defendant to submit to blood test after

531 N.W.2d 369 (Ct. App. 1995) defendant submitted (primary) breath test. Refusal

to submit to second test is admissible at trial even if

prosecution does not pursue refusal charge.

State v. Stary Following administration of primary test officer

187 Wis. 2d 266 must act with reasonable diligence to provide

522 N.W.2d 32 (Ct. App. 1994) alternative test.

23

State v. Schmidt An accused’s request for an alternative test does not

2004 WI App 235 need to be made after the primary test, but request

277 Wis. 2d 561 must be clear.

691 N.W.2d 379

State v. Fahey Request for additional test made after release from

2005 WI App 171 custody is not a valid request under implied consent

285 Wis. 2d 679 law.

702 N.W.2d 400

State v. Batt Officer is not required to give defendant reasonable

2010 WI App 155 opportunity to obtain 3rd

test. Officer is required to

330 Wis. 2d 159 offer either a second test at agency expense or a

793 N.W.2d 104 reasonable opportunity for a test at the defendant’s

expense.

j. Evidence of test refusal

State v. Albright Evidence of test refusal is admissible at OWI trial to

98 Wis. 2d 663, 668 show consciousness of guilt.

298 N.W.2d 196, 200

(Ct. App. 1980)

State v. Bolstad Defendant’s explanation for refusal is also

124 Wis. 2d 576 admissible.

370 N.W.2d 257 (1985)

S. Dakota v. Neville Admission into evidence of defendant’s refusal to

459 U.S. 553 submit to test does not offend privilege against self

103 S. Ct. 916 (1983) incrimination.

VI. Additional pretrial issues

a. Discovery

Wis. Stat. § 345.421 Limited discovery in non-criminal traffic cases.

Request must be made within 10 days of violation

and must show cause.

Wis. Stat. § 800.07 Neither party is entitled to pretrial discovery in any

action in municipal court, except that if the

defendant moves for pretrial discovery within 30

days after the initial appearance the court may order

prosecution to provide documents, including names

and witnesses, if available, and to test devices under

Wis. Stat. § 804.09.

24

Defendant may also move for pretrial discovery at

any other time upon a showing of cause.

b. Motions to Dismiss/amend charge

Wis. Stat. § 967.055(2) Motions to dismiss or amend OWI charge require

court approval and may only be approved if the

court finds that the proposed reasons for

amendment or dismissal are consistent with public

interest in deterring drunk driving.

State v. Dums Trial court is not required to accept prosecutor’s

149 Wis. 2d 314 reasons for amendment or dismissal. Trial court

440 N.W.2d 814 (Ct. App. 1989) may inquire into reasons advanced by prosecutor

and examine public interest in light of deterring

drunk driving without violating separation of

powers doctrine.

Wis. Stat. § 967.055(3) Deferred prosecution agreements are not permitted

for OWI offenses.

VII. Trial Issues

a. Chemical test admissibility & issues

Wis. Stat. § 343.305 The results of a test administered in accordance

with this section are admissible. Test results shall be

given the effect required under s. 885.235.

Wis. Stat. § 885.235 Test must be administered within 3 hours of driving

or expert testimony must establish its probative

value.

Test result of 0.08 or more is prima facie evidence

that defendant was under the influence of alcohol or

another intoxicant and is prima facie evidence that

defendant had an alcohol concentration of 0.08 or

more.

State v. Dwinell Presumption of accuracy also applies to the test

119 Wis. 2d 305 results of the “Intoximeter 3000” breath test.

349 N.W.2d 739 (Ct. App. 1984)

Missouri v. McNeely Forced warrantless blood draw requires exigent

133 S.Ct. 1552 (2013) circumstances. Natural metabolization of alcohol

does not present a per se exigency that justifies

25

exception to 4th

Amendment. Exigency in this

context must be based on totality of circumstances.

Wis. Stat. § 343.305(5)(b) Blood sample must be taken by a physician,

registered nurse, medical technologist, physician

assistant, phlebotomist, or other medical

professional who is authorized to draw blood, or a

person acting under the direction of a physician.

State v. Hinz DOT published chart estimating blood alcohol

121 Wis. 2d 282 concentration by reference to number of drinks

360 N.W.2d 56 (Ct. App. 1984) consumed, adjusted for body weight and time is

admissible in drunk-driving cases.

b. Chain of custody

State v. McCoy Alleged gaps in a chain of custody go to the weight

2007 WI App 15, ¶ 9 of the evidence rather than its admissibility.

298 Wis. 2d 523, 528

728 N.W.2d 54, 56

c. Expert Witnesses/Daubert

Wis. Stat. § 902.07(1) If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify

thereto in the form of an opinion or otherwise, if the

testimony is based upon sufficient facts or data, the

testimony is the product of reliable principles and

methods, and the witness has applied the principles

and methods reliably to the facts of the case.

State v. Giese Retrograde extrapolation is admissible under

2014 WI App 92, ¶ 17 Daubert.

356 Wis. 2d 796, 805

854 N.W.2d 687, 691

State v. Giese The question is whether the scientific principles

2014 WI App 92, ¶ 18 and methods that the expert relies upon have a

356 Wis. 2d 796, 806 reliable foundation “in the knowledge and

854 N.W.2d 687, 691 experience of [the expert's] discipline.” Relevant

factors include whether the scientific approach can

be objectively tested, whether it has been subject to

26

peer review and publication, and whether it is

generally accepted in the scientific community.

State v. Warren An officer testifying that field sobriety tests and

2013 WI App 30, ¶ 7 other observations led him to form the subjective

346 Wis. 2d 281 opinion that a driver’s alcohol level was

827 N.W.2d 930 impermissibly high is not scientific or expert

(unpublished) testimony. Field sobriety tests are observational

tools.

Wis. Stat. § 907.01 If the witness is not testifying as an expert, the

witness's testimony in the form of opinions or

inferences is limited to those opinions or inferences

which are all of the following:

(1) Rationally based on the perception of the

witness.

(2) Helpful to a clear understanding of the witness's

testimony or the determination of a fact in issue.

(3) Not based on scientific, technical, or other

specialized knowledge within the scope of a witness

under s. 907.02(1).

d. Telephonic Testimony

Wis. Stat. § 807.13(2) (2) Evidentiary hearings. In civil actions and

proceedings, including those under chs. 48, 51, 54,

and 55, the court may admit oral testimony

communicated to the court on the record by

telephone or live audiovisual means, subject to

cross-examination, when:

(a) The applicable statutes or rules permit;

(b) The parties so stipulate; or

(c) The proponent shows good cause to the court.

Appropriate considerations are:

1. Whether any undue surprise or prejudice would

result;

2. Whether the proponent has been unable, after due

diligence, to procure the physical presence of the

witness;

3. The convenience of the parties and the proposed

witness, and the cost of producing the witness in

relation to the importance of the offered testimony;

4. Whether the procedure would allow full effective

cross-examination, especially where availability to

27

counsel of documents and exhibits available to the

witness would affect such cross-examination;

5. The importance of presenting the testimony of

witnesses in open court, where the finder of fact

may observe the demeanor of the witness, and

where the solemnity of the surroundings will

impress upon the witness the duty to testify

truthfully;

6. Whether the quality of the communication is

sufficient to understand the offered testimony;

7. Whether a physical liberty interest is at stake in

the proceeding; and

8. Such other factors as the court may, in each

individual case, determine to be relevant.

VIII. Sentencing

a. Ignition Interlock Devices

Wis. Stat. 343.01(1g) Court order must: (1) restrict operating privileges to

vehicles equipped with an ignition interlock device;

and (2) order the installation of an IID for each

motor vehicle for which the person’s name appears

on the title or registration.

IID orders apply when any of the following apply:

(1) The person improperly refuses test; (2) The

person is convicted of an OWI related offense with

an alcohol concentration of 0.15 or more at the time

of offense; (3) The person has two or more

convictions in their lifetime.

Vill. of Grafton v. Seatz Trial court is required to order installation of IID

2014 WI App 23 even though prior OWI conviction occurred more

352 Wis. 2d 747, 845 N.W.2d 672 than 10 years before latest offense and defendant

could not be convicted as a repeat offender.

Note: Does dismissal of refusal charge preclude IID order when other two factors do not

apply?

b. Sentencing Guidelines

State v. Weaver Courts are permitted to deviate from sentencing

No. 2015AP170-CR guidelines in imposing sentence based on facts

2015 WL 5090585 of case.

(Wis. Ct. App. Aug. 31, 2015)

(unpublished)

28

IX. Appellate Issues

a. Appeals from “judgments”

Wis. Stat. § 800.14(1) Appeals must be from “judgments,” motions

brought under § 800.11, or determinations regarding

defendant’s ability to pay

Wis. Stat. § 806.01(1)(a) “A judgment is the determination of the action. It

may be final or interlocutory.”

Wis. Stat. § 345.20(2)(a) Chapter 799 applies when no procedure is provided

in Chapter 345.

Wis. Stat. § 799.04(1) Chapter 801 to 847 apply unless otherwise provided

in Chapter 799.

City of Pewaukee v. Carter We conclude that the municipal court proceeding in

2004 WI 136, ¶ 63 the present case constituted a trial under Wis. Stat. §

276 Wis. 2d 333, 358 800.14(4) because the City presented its case, the

688 N.W.2d 449, 461-62 defendant had an opportunity to present his

evidence (even though he chose not to do so), and

the matter was judicially resolved on its merits. We

therefore conclude that the municipal court

proceeding in the instant case triggered the City's

statutory right to a new trial under 462 Wis. Stat. §

800.14(4).

b. Proper Service on appeals to circuit court

Wis. Stat. 800.14(1) Appeals must include written notice of appeal to the

municipal judge and other party within 20 days after

the judgment or decision. No appeals may be taken

from default judgments.

Vill. of Thiensville v. Fisk E-mail to municipal prosecutor on 20th

day after

No. 2015AP576-FT judgment satisfies written notice requirement in

2015 WL 5022543 Wis. Stat. 800.14(1).

(Wis. Ct. App. Aug. 26, 2015)

c. Split Decisions at municipal court level

Note: When municipal court finds defendant guilty of OWI but not guilty of PAC (or

vice versa) be sure to file cross appeal reserving right to appeal the not guilty verdict.

Town of Menasha v. Bastian Circuit court lacks jurisdiction over PAC citation

29

178 Wis. 2d 191 where municipal court found defendant guilty of

503 N.W.2d 382 (Ct. App. 1993) OWI but PAC citation was dismissed without

finding of guilt and defendant appealed to circuit

court without municipality cross-appealing

d. Bond Requirement

Wis. Stat. § 800.14 On appeal by the defendant, the defendant shall

execute a bond, at the discretion of the municipal

judge, to the municipal court with or without surety,

approved by the municipal judge, that if the

judgment is affirmed in whole or in part the

defendant shall pay the judgment and all costs

awarded on appeal.