By: David E. Saperstein
Email: dsaperstein@hbslawfirm.com
Phone: 608-257-0945
In the interest of tootin’ my own horn, I offer up a sampling of some of my case results from 2017, so far. Some of the facts reported here may seem preposterous, like I’m pulling your leg. I assure you, I am not.
Dane County – Operating a Motor Vehicle While Intoxicated, Operating a Motor Vehicle with a Restricted Controlled Substance (THC), Possession of THC, Possession of Drug Paraphernalia
FACTS: Client was out and about on a beautiful, sunny, early spring day, driving down a deserted rural road in Dane County. He (allegedly) pulled over on the country road, got out of his car and began dribbling a basketball and riding a skateboard on the road. Eventually another car drove by; and apparently the driver of that car was alarmed by the fun that Client was having. The driver called the police and reported what she saw, including a description of the client, his car and the license plate number.
A sheriff’s deputy received the report from dispatch and headed in the direction of the reported inexplicable youthful exuberance. While in route, Client’s car passed the officer, traveling in the opposite direction on a nearby road. The officer turned around, followed Client for less than a minute, and pulled Client over. The sole reason for the stop was the report from the alarmed driver of the other car.
When the officer walked up to the window of Client’s car the officer noticed (allegedly) a bag of what looked like marijuana and a smoking device on the front passenger seat. Client was asked to do roadside field sobriety tests, but he was having too much fun to comply. Client was arrested and blood was drawn. He was eventually cited for possession of marijuana and paraphernalia, as well as operating a motor vehicle while intoxicated and with a restricted controlled substance (THC) in his blood.
LEGAL PRINCIPLE(S)/DEFENSE: The 4th Amendment to the U.S. Constitution is implicated any time the police stop and/or detain you. The text of the 4th Amendment begins with –
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated…”
The word “reasonable” is where the rubber hits the road. When you are stopped by police in your car, you are being “seized,” and that seizure must be based upon “reasonable suspicion” that you violated a traffic law or committed a crime.1
It is worth noting here that constitutional rights and principles don’t assert themselves. You must retain an experienced lawyer (dsaperstein@hbslawfirm.com) to assert them for you; and your lawyer must declare to the court, in the form of a written “motion to suppress evidence,” that the officer’s actions in seizing and searching you, based upon the information available to him at that time, were not reasonable. (I filed such a motion in this case.) After a motion is filed raising the 4th Amendment violation, the burden then shifts to the government to prove that the intrusion by the officer was reasonable.2 The court’s ruling is to be based upon an objective analysis of “the totality of circumstances” that preceded the stop.3
RESULT: The court held that the stop of Client’s car was not reasonable. The government had not shown that Client had violated a specific law. (There were no signs on the rural road prohibiting parking, and no evidence that Client obstructed traffic, for instance). Because our motion was granted, all evidence gathered after the officer initiated the stop was suppressed (excluded from use at trial). No evidence = no case. All of Client’s charges were dismissed. So for now, at least according to one judge in one case, it is still legal to bounce and ball and ride a skateboard on a deserted road – as long as you don’t get in anyone’s way. Ah, sweet freedom.
Iowa County –Theft and Attempted Theft Charges Dismissed
FACTS: Client was installing satellite TV in an outbuilding that was undergoing renovation. Other contractors, doing the renovations, were also at the job sight. Client removed a shotgun from the location where he was installing cable, and set it outside on the ground. Client allegedly held it up in the air to see how it sighted, as it was an impressive older gun. One of the contractors apparently became suspicious, and/or was trying to ingratiate himself with the property owner, and told the owner that Client was trying to steal the gun.
Sometime later, after Client had left, the property owner noticed a pair of brand new cold weather gloves missing from a shelf in the area where Client had been; however, there were no witnesses who saw Client take the gloves. Property owner filed a police report, and client was charged with theft of the gloves and attempted theft of the shotgun.
LEGAL PRINCIPLE(S)/DEFENSE: Criminal complaints must contain, within the “four corners” of the document, basic facts that support the charge(s) filed in the complaint – and they must do so to a level of proof known as “probable cause.” Probable cause is best defined as “sufficiently more than a mere possibility.”4 Reasonable conclusions and inferences may be drawn from circumstantial evidence, but the evidence must still rise to the level of probable cause that the defendant committed the charged crime(s).5
I filed a motion to dismiss the complaint (a “four corners motion”) arguing that the facts contained in the complaint did not allege (to a level of probable cause) that Client had committed a crime.
RESULT: After reviewing our motion, and engaging in some additional negotiations, prosecutor agreed to dismiss both charges if Client paid for the missing gloves. Client agreed. Case dismissed.
Village of Belmont, Lafayette County – Operating a Motor Vehicle While Intoxicated (OWI) and Operating a Motor Vehicle with a Prohibited Alcohol Concentration (PAC)
FACTS: Client was driving through the Village of Belmont at approximately 2 a.m. after attending a friend’s birthday gathering in a nearby town. He had been driving for about a half an hour when he was pulled over for having an expired registration sticker. The sticker that was alleged to have expired was the month sticker, not the year. However, Client’s sticker read “OCT” for October, and this encounter with the officer also occurred in October. Apparently the officer had run a DMV search on Client’s registration before stopping him, and found that the actual date of expiration was October 7th. The date of this encounter was October 21st. This “administrative” stop snowballed into an OWI investigation;6 Client did field sobriety tests and submitted to a breath test. He was cited for operating a motor vehicle while intoxicated and operating a motor vehicle with a prohibited alcohol concentration (< .15).
LEGAL PRINCIPLE(S)/DEFENSE: I began from the premise that the average person considers his license plate sticker valid through the end of the month indicated on that sticker. Client certainly assumed that to be “the law.” However, this is not strictly true. As a technical matter, the registration does expire on the date indicated on the registration (also on the upper left corner of the License Plate Renewal Notice), and it is unlawful to operate the vehicle on a public road after that date. However, the language in the statute does provide an exception if “an application for re-registration has been made.”7 Presumably that exception could apply if you have simply mailed in your renewal notice and payment, and are still waiting for the sticker to arrive in the mail. That was our argument in this case. Intending to file a motion to suppress evidence based on an illegal stop (see above), I wrote to the prosecutor and explained our position on that issue.
In addition, I added an “alcohol absorption curve” argument. That argument challenges the accuracy of the breath test based on the delay between the driving and the test. To prove that someone drove while intoxicated and with a prohibited alcohol concentration, the government has to prove that he was impaired or over the legal limit at the time of driving. I argued that my client was stopped so soon after drinking his last beer or two that those drinks were not absorbed into his blood/brain until an hour after the stop – when he was breath-tested; and he would have been below .08 at the time he was actually driving.
RESULT: The prosecutor dismissed the OWI and PAC citations, and issued a minor traffic violation instead.
[1] Terry v. Ohio, 392 U.S. 1 (1968)
[2] Id.; State v. Post, 301 Wis. 2d 1; State v. Taylor, 60 Wis. 2d 506
[3] See State v. Post
[4] State ex rel Cornellier v. Black, 144 Wis.2d 745 (Ct. App. 1988)
[5] Id.; State v. Ritchie, 237 Wis.2d 664 (2000)
[6] Anytime you are stopped at or near “bar time” the officer is assuming you have been drinking. The typical pattern is that the officer asks where you are coming from, and asks if you have been drinking. If you admit to drinking any alcohol at all it is nearly certain the officer will ask you to perform field sobriety tests. Even if you deny drinking the officer may still request testing, based on an “odor of intoxicants,” “bloodshot or glassy/glossy eyes,” “slurred speech” or one of several other alleged observations that are ubiquitous in OWI-related police reports. Under certain circumstances, the officer’s decision to expand the stop to administer testing can also be challenged by motion.
[7] See section 341.04(1)(b), Wisconsin Statutes
