An unlawful traffic stop can unravel a DUI charge and correctly result in the defendant's acquittal. However, if the defendant refused to submit to chemical testing during the stop, he may still be convicted of a separate refusal charge, even if the drunk driving charge is later thrown out.
]]> The case before the court seeks to answer an important question: If a traffic stop itself is found to be unlawful, should a subsequent refusal charge still be considered unlawful?This is a particularly complex issue because refusal hearings are usually held before a DUI trial ever begins. Therefore, a defendant cannot use evidence from the trial to support his claim that he refused a chemical test on the grounds that the stop itself was unlawful.
In many cases, defendants have tried to argue the merits of the traffic stop at the refusal hearing, but with limited success. Speaking before the Court, the assistant attorney general noted: "[An unlawful stop] would impact whether evidence is suppressed. The implied consent statute isn't meant to get at [that question]." He added that refusal hearings are not the proper or allowable time to consider suppression-of-evidence issues.
But others disagreed, or at least asked questions challenging that assertion. Justice Patience Roggensack noted that if a defendant isn't allowed to challenge the traffic stop at the refusal hearing, there might be no possible way to avoid losing his driver's license. And this would be the case even if he initially refused chemical testing because he believed that the traffic stop was unlawful.
The attorney representing the defendant voiced his belief that the lawfulness of the traffic stop needs to be the central issue which validates or invalidates subsequent charges. He said: "Everything rises and falls ... on whether the stop was lawful."
If the Court rules in favor of the defense, this decision could result in a fairer criminal justice process for all DUI defendants in Wisconsin. If not, DUI defendants who refuse chemical testing may still face license revocation, even if they later prove that they were unlawfully stopped.
Source: State Bar of Wisconsin, "Supreme court hears argument against license revocation where police stop unlawful," April 25, 2012
]]>In a somewhat rare move, the prosecution allowed Hopper to rely on the trial record, rather than hold his refusal hearing before the trial, as is usually the case. Because it was determined that the officer did not have probable cause to arrest him, Hopper's attorneys argued that he had no obligation to submit to a breathalyzer test.
]]> Unfortunately, not every DUI defendant gets a break like this. Even if someone is ultimately acquitted of DUI charges, they may still be convicted of a refusal charge, which can result in a one-year license revocation.With that in mind, readers may find it noteworthy that the Wisconsin Supreme Court recently heard arguments on an interesting an important question: If a traffic stop itself is found to be unlawful, should subsequent refusal to submit to chemical testing still be considered unlawful?
The defendant in the case before the court did refuse chemical testing at the time of his arrest. He later argued that because the police stop was illegal, his arrest was not lawful. Both the circuit court and an appellate court agreed with him. The appellate court additionally held that because the stop and subsequent arrest were unlawful, law enforcement did not have the authority to mandate that the man submit to chemical testing.
However, prosecutors appealed to the state Supreme Court, where the case is currently being considered. The prosecution's argument is that refusal hearings function only to determine whether police had probable cause to suspect a defendant of DUI. Therefore, defendants are not allowed to challenge the legality of the police stop during a refusal hearing.
Now that readers have some background on the case, check back later this week as we continue our discussion about oral arguments made in front of the Supreme Court, as well as what the Court's ruling might mean for DUI defendants.
Source: State Bar of Wisconsin, "Supreme court hears argument against license revocation where police stop unlawful," April 25, 2012
]]>As just one example, a 58-year-old Milwaukee woman was recently and unceremoniously fired from her job with Wells Fargo Home Mortgage despite more than five years of working there and numerous awards for excellent service. Why was she fired? Simply because a recent background check turned up two shoplifting arrests from 40 years ago.
]]> The woman admits she was arrested for stealing clothing from a department store on two occasions in 1972. The incidents resulted in a $50 fine and a year of probation, respectively. She was only 18 at the time.She says she regrets what she did, adding: "I changed my life. I went to school. I went to college. I didn't graduate, but I did go and try to be a good person." Since then, her criminal record has been virtually spotless.
So why should she be fired for small offenses from her youth? A spokesman for Wells Fargo said that the company has been doing background checks on nearly all employees to make sure that they do not hire or retain anyone who "we know has a criminal record involving dishonesty or breach of trust."
Therefore, the woman was terminated. She notes: "I just got the FBI report on Saturday in the mail. Monday, they said you're fired. They never let me say what happened, explain myself, nothing."
Hopefully, most employers will show considerably more flexibility and understanding. After all, who among us is the exact same person we were at age 18?
Nonetheless, this case shows that even small criminal convictions on your record could disrupt your life decades down the road. That's why anyone charged with a crime may wish to seek the help of a qualified criminal defense attorney.
Source: Milwaukee Journal Sentinel, "Will your employer dig up your arrest 40 years ago?" Jim Stingl, May 5, 2012
]]>The former senator was eventually acquitted on the drunk driving charge. But at the time of our last post, Hopper was still facing a related charge: refusal to submit to a breathalyzer test.
]]> DUI defendants usually face a separate refusal hearing before their DUI trial begins, but prosecutors in this case agreed to wait until the outcome of the trial was determined. This was fortuitous for Mr. Hopper, because he was found not guilty.Recently, Hopper was also acquitted of his breathalyzer refusal charge. Based on the outcome of the trial, Hopper's defense attorney was able to successfully argue that there was no probable cause for his arrest. Without probable cause, there should be no obligation for a DUI suspect to submit to a breathalyzer test, he said.
In a court brief, the defense attorney wrote: "There is no way this Court can find, in good conscience, that the above constitutes sufficient evidence to sustain an arrest for drunk driving. To the contrary, this Court is well aware from presiding over countless OWI probable-cause hearings over the years, what probable cause looks like in a drunk driving case. Frankly, Mr. Hopper's case doesn't even come close. This Court needs to see the probable cause issue the same way the jury so astutely saw the charges against Mr. Hopper: all hype and no substance."
These are strong words but they illustrate an important point: it is crucial to hold law enforcement responsible for establishing probable cause. Without this important threshold, individuals can be arrested and ultimately charged outside the protections afforded to them by law.
Source: Journal Sentinel, "Recalled state senator cleared of refusing blood alcohol test," Bruce Vielmetti, April 25, 2012
]]>Thanks to one woman's case, the Wisconsin Department of Transportation (DOT) will be changing its employment restrictions to allow those convicted of certain low-level drug crimes to be considered for positions within the DOT.
]]> Until recently, the Wisconsin DOT prohibited anyone convicted of a drug crime, even if it was a one-time possession or sale of marijuana, to be employed by the department. However, one woman's case illustrated the unnecessary rigidity of this policy and has inspired its change.The woman was convicted in 2004 for a single offense related to selling a small amount of marijuana to undercover law enforcement. She failed to disclose this conviction on her application to drive a bus for the Wisconsin DOT. When her employer discovered the omission, her bus driver's license was cancelled.
She challenged the cancellation in court, because she was not given the opportunity to tell her story at a hearing. After the case was appealed to the Wisconsin Court of Appeals, her license was reinstated and she now drives special needs children to and from public school.
The Court agreed that a one-time low-level offense conviction, combined with a significant passage of time marked by solid employment history should not bar an applicant from employment for life. As a result of the case, the Wisconsin DOT will be revising its rules regarding which offenses will and will not continue to bar certain applicants from employment with the department.
Source: Fox6Now.com, "Convicted felon beats lifetime ban from school bus," Stephen Davis and Bryan Polcyn, May 1, 2012
]]>Personal stress related to work and finances is a major and common trigger of both domestic disturbances and domestic violence. In light of this, it should come as no surprise that law enforcement agencies in Wisconsin and around the country have been responding to more allegations of domestic violence over the last several years.
]]> A recent study suggests that the country's economic recession has sparked an increase in domestic violence, even as overall violence has been declining. The research was conducted by a group called the Police Executive Research Forum (PERF).Researchers in the study surveyed law enforcement agencies around the nation and received about 700 responses. Of these, 56 percent said that they have seen a rise in domestic conflict fueled by the struggling economy. When this same survey was given in 2010, only 40 percent of agencies had reported an increase.
A recent article in USA Today interviews with police chiefs and others who have been witnessing this phenomenon over the last several years. One New Jersey police chief noted: "When stresses in the home increase because of unemployment and other hardships, domestic violence increases. We see it on the street."
A similar sentiment was expressed by the executive director of PERF, which is a think-tank based in Washington. He said: "You are dealing with households in which people have lost jobs or are in fear of losing their jobs. That is an added stress that can push people to the breaking point."
It is certainly understandable that emotions run high when economic times are tough. However, it is important not to let things get out of hand. If you fear that your life stresses could cause you to harm a loved one, you may wish to consider seeking advice from a counselor or an anonymous hotline.
Anyone already facing domestic violence charges may benefit from the help of an experienced criminal defense attorney.
Source: USA Today, "Domestic violence rises in sluggish economy, police report," Kevin Johnson, April 30, 2012
]]>But once-forbidden drugs are now becoming cheaper, stronger and more available. One of these drugs is heroin. And in some communities around the United States, higher numbers of heroin overdose deaths are leading prosecutors to charge the victims' drug suppliers with homicide.
]]> In a recent news article, a U.S. attorney in southern Illinois was quoted as saying: "We are going to treat every overdose scene like a crime scene. We are going to treat every overdose as a potential homicide. Heroin is the bullet."According to the article, heroin coming from Mexico is now purer and stronger than in the past. This means that it can be swallowed or snorted, making it more appealing to casual users because needles are not involved.
And when users die from an overdose, prosecutors are aggressively going after the immediate link in the supply chain.
This is a similar response to drug overdose deaths which have recently occurred here in Wisconsin. Police will try to hold someone criminally accountable, whether the supplier was a friend of the victim or a drug dealer.
While fatal overdoses are certainly unintended and tragic, the decision to take drugs in the first place was each victim's personal choice. Nonetheless, prosecutors are doing all they can to make sure that others who handled those drugs are held liable.
With the stakes pushing ever higher, anyone facing drug charges may wish to seek the help of an experienced criminal defense attorney.
Source: Fox News, "A shift to more aggressive tactics against heroin," April 14, 2012
]]>Referred to as the "nerd defense," studies have shown that it can subtly but powerfully influence juror perceptions of a defendant. While it is unclear if this criminal defense strategy has ever been tried here in Waukesha or throughout Wisconsin, it appears to be all the rage elsewhere in the country.
]]> In fact, it may have been overused in one recent case. Last month, prosecutors in a Washington, D.C., murder trial took notice when all five defendants appeared in court wearing non-prescription "hipster" glasses.Prosecutors took an opportunity to make jurors aware that none of these men had worn glasses before the trial. In this case, the nerd defense was perhaps overused. However, some criminal defense lawyers often use it to great effect.
One defense lawyer who was not involved in that particular case said: "Sometimes I want my clients to wear them to appear more studious. Often times it's about perception, and glasses help with that perception."
This can be especially true if the defendant's race or socioeconomic status might result in a negative bias against him. If a jurors believe that a defendant "looks like a criminal," it may be nearly impossible to overcome that prejudice no matter how much exonerating evidence is presented.
Justice is supposed to be blind. But as human beings, we know that presentation counts and appearance matters. Therefore, some criminal defendants might need more than just a coat and tie to make a showing in the courtroom.
Source: Washington Post, "Trendy, non-prescription eyewear latest in criminal defendant strategic attire," Keith L. Alexander, March 27, 2012
]]>Governor Scott Walker recently signed a bill eliminating the statute of limitations for violent crimes in Wisconsin. The new law applies to certain attempted homicides and certain sex crimes.
]]> Practically speaking, a statute of limitation bars law enforcement from prosecuting crimes after a certain amount of time has passed. The new law will enable prosecution of persons accused of certain crimes at any point in their lives.Specifically, the bill targets those accused of first and second degree attempted homicides, first degree attempted sexual assault and first degree sexual assault. Persons will not be prosecuted if the statute of limitations has already run out in regards to their particular alleged crime.
The bill, the Justice for Survivors Act, is meant to serve as a deterrent for violent crime.
Critics of eliminating statutes of limitation point out that these regulations were originally conceived because evidence and witness memory becomes more unreliable over time. These facts have not changed simply because the clock will now keep running on open cases.
In addition to the bill eliminating the statutes of limitation for violent crime, Governor Walker signed two other significant laws into passage last week. One allows for hearsay testimony at preliminary criminal hearings and one makes conviction for certain attempted child sex crimes punishable by sentences as harsh as those for committing the crimes themselves.
Source: WBAY News, "New Law Eliminates Statute of Limitations on Violent Crimes: Updated," Kate Raddatz, Apr. 12, 2012
]]>Late last month, former Senator Randy Hopper was deemed not guilty of drunk driving by a jury of six women. However, a charge related to refusal of a blood alcohol test is still pending.
]]> The refusal charge carries a weighty penalty if Hopper is found guilty. First-time drunk driving suspects may generally refuse blood alcohol tests in Wisconsin, but can be heavily penalized for doing so. In addition, refusal convictions count as prior offenses for the purposes of sentencing any future infractions.Hopper has argued that his voting record has biased county employees against him. In particular, his defense attorney and the special prosecutor have called substantial attention to the positions held by Hopper and certain law enforcement members with regard to the recall election.
Though the jury may have been swayed by these arguments with regard to the initial drunk driving charge, it has yet to be seen whether the presiding judge will find perceived bias to be reason enough to dismiss the refusal charge.
It is worth noting that when Hopper was taken to jail, the preliminary breath test he was given registered well above the legal limit. Though results of this particular test are inadmissible in a trial setting, it is somewhat unclear whether the judge may or may not consider the results when contemplating the refusal charge.
Regardless of the outcome, this case serves as an interesting example of the complexities involved in Wisconsin drunk driving cases.
Source: TheNorthwestern.com, "Jury finds former Republican State Senator Randy Hopper not guilty of drunken driving," Russell Plummer, March 24, 2012
]]>A recent Minnesota case may ultimately influence Wisconsin DUI defense. The Minnesota Court of Appeals recently ruled that certain treatment of blood alcohol samples by law enforcement can lead to the exclusion of those samples at trial.
]]> Specifically, the Court held that because Minnesotans accused of drunk driving may choose to independently test blood alcohol samples, refusal by law enforcement to release such samples for testing warrants the exclusion of samples as trial evidence.The court handed down this ruling in a case involving a man accused of drunk driving whose blood alcohol sample was destroyed by the state before he was given a chance to test it independently.
The opinion handed down expressed the need to preserve the rights of the accused under such circumstances. It noted in part that, "The right to determine whether evidence is 'favorable to an accused' does not belong to the state: the state may not determine what evidence is definitely, probably, or possibly not favorable and then destroy it after the accused has specifically and in writing requested that it be preserved without violating due process."
Given the consistent problems with breathalyzer and other blood-alcohol testing accuracy nationwide, it is important to preserve the right of the accused to have their samples independently tested. The Minnesota verdict is a victory for the rights of the accused everywhere.
Source: TheNewspaper.com, "Minnesota: Court Rules Police Cannot Destroy DUI Blood Sample," March 29, 2012
]]>According to the complaint, the U.S. border control searched the boat and removed 74 packages of marijuana or 193.6 kilograms. After being arrested and detained, the man explained that he had brought the boat and the drugs onto shore after his life was threatened.
]]> The alleged drug smuggler said that he borrowed money from a Jamaican man, who he was unable to repay. Instead of repayment, the Jamaican man demanded that he deliver drugs to the United States. He said that he was followed into the states by two boats that turned around when he got to shore. He also claims that two men met him when he pulled the boat onto shore, but he ran and hid in a bathroom. When he returned to the beach, he was still trying to hide, according to the complaint.While duress is a viable criminal defense, the defendant would have to show that the crime was only committed because he was under extreme unlawful pressure. It can be a complicated criminal defense, because the defendant would also have to admit guilt to committing the crime.
Palm Beach Post, "Man told authorities he was forced to import drugs or face death," Alexandra Seltzer, April 12, 2012.
]]>The bill was authored in response to substantial media focus on what information is and is not readily available to those who are charged with investigating juvenile offenders. Specifically, the legislation alters the circumstances by which prosecutors, law enforcement and litigants may access the records of juveniles involved in criminal proceedings.
]]> Advocates on behalf of law enforcement insist that without access to juvenile records, they cannot anticipate escalating dangers or spot parole and probation violations.However, many criminal justice advocates are concerned about the practical privacy implications which stem from the bill's provisions. At the request of the State Bar of Wisconsin's Children and the Law Section, access to records related to mental and physical health would be limited for privacy reasons.
The bill provides that prosecutors may obtain juvenile court records without first obtaining a court order. It also allows greater access to these records for law enforcement and child welfare agencies who are investigating possible criminal activity, delinquency of minors or child welfare issues.
Though the bill requires that those who are granted access to juvenile records keep them confidential, the privacy concerns voiced by juvenile justice advocates are real. Governor Walker must sign or veto the bill before April 12 or it will become law automatically. Only when the bill is acted upon or automatically instated will justice advocates in Wisconsin be able to fully explore how the bill's provisions will affect the rights of juveniles within the justice system.
Source: State Bar of Wisconsin, "Juvenile law: Crime sparks expanded access to juvenile records," Mary M. Sowinski, Apr. 4, 2012
]]>But Wisconsin police realize that prom and graduation parties are frequently sources of underage drinking and subsequent drunk driving. For this reason, police in a given community will usually increase patrols on the weekends of these events.
]]> But police and school officials are now going a step further in trying to prevent and detect incidents of underage drinking. Many Wisconsin schools are implementing random breathalyzer testing at major school functions like dances and senior banquets.Earlier this year, in fact, Waukesha West High School implemented student breathalyzer tests prior to the Sadie Hawkins dance. According to an article in the Journal Sentinel, Germantown High School has implemented a similar policy and the Cedarburg School District will be using breathalyzer testing at their upcoming prom.
There are many school officials and parents in favor of these new breath-testing policies. And one could make an argument that it might ultimately have a positive effect on safety.
However, there are also many questions and potential problems that come with policies like this. First of all, who is administering the tests? Criminal defense attorneys realize that breathalyzer equipment is not foolproof, and the readings can vary widely because of either human error or machines that are not correctly calibrated.
Secondly, what are the potential consequences for students found to have alcohol in their system? Will they face criminal charges or just parental/school consequences?
Finally, do we need to be concerned about the kind of message we are sending by implementing random alcohol screening? If these students will soon be legal adults, do we really want to show them that they cannot be trusted to make good choices on their own?
Source: Milwaukee Journal Sentinel, "This year's hottest prom trend: Breathalyzer tests," Erin Richards, Mar. 29, 2012
]]>The Court held that the Constitution protects the rights of defendants to have effective legal counsel during the plea negotiation phase of the criminal defense process.
]]> Plea bargaining has long been treated as an informal process, and is therefore largely unregulated. However, the prevalence of plea bargaining within the system led to a 5-4 decision which upholds the rights of defendants at this part of the process.Anthony Kennedy, who authored the majority opinion, wrote that, "Criminal justice today is for the most part a system of pleas, not a system of trials. The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences."
This is an especially important ruling for those who receive bad legal advice during plea bargaining. Just as defendants are entitled to adequate professional counsel during trial, they are now considered entitled to this right during plea bargaining.
Should bad legal advice cause a defendant to reject a favorable plea deal, the courts will now be able to remedy the situation in certain ways, depending on the case.
Some have noted that the Court's holding will lead to an increase in claims of ineffective assistance of counsel and challenges to plea bargain agreements as a result. However, if such an increase leads to justice for those with legitimate claims, the Court's ruling is all the more important and advantageous for every citizen.
Source: New York Times, "Justices' Ruling Expands Rights of Accused in Plea Bargains," Adam Liptak, Mar. 21, 2012
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