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.

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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.

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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.

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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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