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Bucher Law Group, LLC

Wisconsin Approves Lower Probable Cause Standard for Some Drivers

In December of 2011, the Wisconsin Supreme Court issued an opinion regarding the level of probable cause that a police officer needs to test a driver's blood alcohol content when the police officer knows that the driver is subject to the state's lower Prohibited Alcohol Concentration law. The court's decision in this case could have an impact on Wisconsin drivers charged with OWI .

Probable Cause to Test for BAC

Under Wisconsin law, the PAC for most drivers is.08. However, drivers with three or more convictions, suspensions or revocations for OWI are subject to a lower PAC of.02. The law states that an officer needs to have probable cause to believe that a noncommercial driver is violating the state's OWI laws in order to request a Breathalyzer test.

In most cases, the mere smell of alcohol alone is not enough to provide probable cause to request a breath test because a driver could smell like alcohol and still have a BAC lower than.08. However, after the court's decision in State v. Goss , if police know that a driver is subject to.02 PAC, the smell of alcohol may be all the probable cause an officer needs to administer a breath test.

State v. Goss

In 2008, police stopped Jason Goss for an obstructed license plate and smelled alcohol on him during the stop. The police knew Goss was subject to the.02 PAC level after checking his driving record and finding four prior OWI convictions. Police had Goss take a breath test and measured his BAC at.084.

Goss requested the breath test results be suppressed at his hearing, arguing that police did not have probable cause to administer the breath test. The court admitted the test results and Goss was convicted of a fifth OWI.

Goss appealed his conviction all the way to the Wisconsin Supreme Court, and the court upheld his conviction. The court emphasized that since the police knew that Goss could not drive with a BAC higher than.02, the smell of alcohol was sufficient probable cause for the officers to believe that Goss was in violation of the law. The court noted that most people do not show any physical signs of having alcohol in their systems at a.02 BAC, so to demand more for probable cause than the smell of alcohol would make it almost impossible for police to enforce the lower PAC provision of the state's OWI laws.

The court's decision could have an impact on many Wisconsin drivers. Those who cannot drive with a BAC higher than.02 because of prior OWI convictions will be even more susceptible to run-ins with the law because police will need less justification for issuing breath tests.

Wisconsin authorities take OWI charges very seriously. If you are facing OWI charges, do not hesitate to contact an experienced criminal defense attorney who can help defend your rights.

Wisconsin Drunk Driving Law Turned Upside Down

For virtually decades, it has been common knowledge in Wisconsin that involuntary blood draws could occur in a drunken driving incident when the individual refuses to consent to a voluntary blood draw. The reason was due to exigent circumstances and the dissipation of the most important evidence in drunken driving prosecution — the level of alcohol within an individual's system.

For many years, the courts have ruled that the dissipation of the alcohol was a sufficient exigency to allow for a warrantless involuntary blood draw. Most jurisdictions have utilized this method in second and subsequent offenses, and some jurisdictions have even begun utilizing warrantless involuntary blood draws for first offenses. This not only resulted in the state being able to obtain the level of alcohol in an individual's blood, but also resulted in a refusal charge. The individual was then prosecuted for refusing to consent to the blood draw, and the state was able to obtain the level of alcohol in the individual's blood.

This method has been completely turned on its head with the recent U.S. Supreme Court case in Missouri v. McNeely . The Court, in a virtually unanimous decision, indicated that the dissipation of alcohol in a person's bloodstream, in and of itself, is not a sufficient exigency to justify a nonconsensual and warrantless seizure of the blood sample in a drunk driving prosecution. The Court made clear that in most cases, the police will have to obtain a search warrant prior to obtaining an involuntary blood sample from a suspected drunk driver, although that may not always be the case. Requiring a search warrant will, obviously, place extra stress on prosecutors and judges and will likely affect how defense attorneys advise their clients.

Withdrawing a Plea After Sentencing

Withdrawing a plea after sentencing has always been difficult, but it is all but impossible, with the exception of the recent case of State v. Taylor , 2013 WI 34 (April 23, 2013), where the Wisconsin Supreme Court ruled that a defendant is not entitled to withdraw his plea after sentencing, even if the trial court erred during the plea colloquy. Under previous law, the defendant was entitled to withdraw the plea if he or she could show an error occurred during the plea and that because of the error, the defendant was not aware of all direct consequences of the plea. This has been the law in Wisconsin for over 20 years.

However, in Taylor, the Wisconsin Supreme Court applied the harmless err doctrine and argued that even though there was a mistake made during the plea hearing, the defendant was not entitled to withdraw his plea as the circuit court reasoned the error was harmless.

This will make it much more difficult for individuals after sentencing to withdraw their plea. Even if there is an error made during the plea discussion between the circuit court and the defendant, it will be difficult for the client to prove that his or her plea should be withdrawn, even if there was an error.

Wisconsin Public Records Law – A Recent Victory for the Public

A case brought before the Wisconsin Supreme Court was recently released in June 2012, concerning interpretation of the Wisconsin Public Records Law — Milwaukee Journal Sentinel, Ben Poston and Gina Marie Barton v. City of Milwaukee, City of Milwaukee Police Department and Edward A. Flynn, Case No. 11-AP-1112.

The Wisconsin Supreme Court found that the record authority may not impose a fee to a requester of a public record for the actual, necessary and direct costs incurred by the authority, including staff time for deleting nondisclosable information included in the responsive records. In this case, the Milwaukee Journal Sentinel was seeking significant records relative to an ongoing investigation as it related to the Milwaukee Police Department not reporting violent crime. In an effort to thwart the investigation and to, hopefully, cause the Milwaukee Journal Sentinel to essentially walk away, the Milwaukee Police Department stated it had to redact a significant amount of information from the records being requested, and informed the Milwaukee Journal Sentinel that costs of over $2,000 would be necessary in advance to obtain the records, plus an additional cost for deleting the records.

Reasonable Doubt

Innocent until proven guilty...it's been the hallmark of the American justice system for centuries. But what happens when outrageous claims are made against you and you find yourself beneath the full weight of the government - forced to defend yourself and prove reasonable doubt? See what happened when one Wisconsin EMT was forced to defend himself against the unthinkable.

It all started out simple enough. The 911 call on July 19, 2011, came shortly before noon for a female having seizures at a local Girl Scout camp. Captain Jodin Froeber wasn't at the station or even on call that day, but knew the service was short-staffed. As an officer with the Somers Fire Department, located in Kenosha County, he was allowed - if not encouraged - to respond whenever he could.

Froeber had been involved in EMS for nearly a dozen years. He was 36 years old at the time, a captain and the training officer for the Somers Fire Department. The service operates as a combination department with Froeber being one of their full-time employees. Like many, he loved his job in fire and EMS. He had done other things, including working for the telephone company, but EMS and firefighting was a passion and a job he truly enjoyed. Like many, he responded to as many calls as he could-even if he was not technically on duty or on call at the time. A life-long resident of the area, he knew many in the community and many knew him.

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