attorney tracey wood
gets conviction reversed
Refusal conviction overturned by wisconsin Court of appeals!
argued by Attorney Tracey Wood
Wisconsin Court of Appeals, District 4
Thursday, February 14, 2008
RE Crossing Fog lane lines Fruit Of Illegal Traffic Stop
MADISON, WISCONSIN. 14 February 2008. The Wisconsin Court of Appeals reversed a Wisconsin Dane County Circuit Court conviction for violating the implied consent statute (Wisconsin Statute 343.305) on the grounds that an illegal stop lacking probable cause produces the "fruit of an illegal stop".
On behalf of her client, Attorney Tracey Wood appealed a judgment of conviction for violating the implied consent statute asserting that the arresting officer lacked reasonable suspicion to execute a vehicle stop; therefore the refusal to submit to a breath or blood test could not be used against her client. The Court of Appeals agreed and reversed the conviction.
Wisconsin Police Stop Vehicle Illegally
Attorney Wood's client was traveling eastbound on Highway 30 in Madison, Wisconsin at approximately 2:00 AM when State Police Trooper Adrian Logan observed a car riding and then subsequently gradually crossing over the fog lane line. State Police Trooper Logan pulled the car over, asked the driver to perform various standardized field sobriety tests, and then arrested the driver for OWI - operating a motor vehicle while under the influence of an intoxicant. The driver refused to submit to a blood alcohol test. :: Wisconsin Blood Alcohol Tests ::
OWI Charge Dismissed
Prior to the refusal hearing, the Wisconsin prosecuting attorney dismissed charges for operating while under the influence of an intoxicant (the OWI charge).
Evidence Heard by Wisconsin Circuit Court at refusal hearing
The Police Trooper testified that he was "an expert" - he had 10.5 years of experience and made 80+ OWI arrests per year. The Wisconsin Circuit Court found the police trooper's suspicion to be reasonable and the stop legal, with a good arrest for an illegal refusal.
Attorney Tracey Wood Appeals
The Wisconsin Court of Appeals applied a two-prong test.
First, the Court of Appeals upholds the Circuit Court's findings of fact unless they are clearly erroneous. Second, the Court of Appeals reviews questions of constitutional fact de novo. The Wisconsin Court of Appeals restated Whren v. United States, 517 US (1996) in that any stop is a seizure under the 14th Amendment, any stop is reasonable where probable cause exists that a traffic violation occurred, but whether reasonable suspicion exists to justify a stop is a matter than must be based on the totality of the circumstances at the time of the stop. State v. Johnson, 299 Wis 2d 675, 729 NW2d 182.
Where the state argued that the stop was reasonable because of a deviation over the fog line, the Court of Appeals disagreed finding that a fog line is not a part of a designated lane.
Where the state argued in the alternative that the deviation supported a reasonable inference of unlawful conduct under the totality of the circumstances, the Court of Appeals disagreed finding that the police trooper lacked objective grounds to draw a reasonable inference, the vehicle moved gradually not suddenly, there was no erratic weaving, nor did the vehicle repeatedly cross the fog line but only once.
And where the state argued that the police trooper was an expert with years of experience and training, the Court of Appeals found those facts together with the time of day (bar time) to be but mere building blocks, not the totality of the circumstances.
Therefore, the investigative stop was invalid.
Where the state argued that even if the stop was invalid, the refusal was improper and should be affirmed, the Court of Appeals disagreed. The Court of Appeals stated that "an element of improper refusal is probable cause to believe that the person was operating a vehicle while under the influence of an intoxicant, and in this case, the evidence essential to proving this element was the fruit of the illegal traffic stop. Without this illegally contained evidence, the conviction cannot be sustained. Conviction reversed.
Successful Wisconsin Drunk Driving Defense & DUI Appeals Attorney
Attorney Tracey Wood, Wisconsin's foremost authority on drunk driving laws, has won many outright acquittals, successfully obtained many dismissals, and written the book on drunk driving charges in the state of Wisconsin. Attorney Wood is the author of Challenging Prior Under the Influence Convictions, contributing author to DUI Defense, and Wisconsin's first and only member appointed to the National College for DUI Defense Board of Regents.
See also:
Attorney Tracey Wood | Wisconsin Drunk Driving Overview | WI Drunk Driving Law
Prior Drunk Driving Conviction | Test Refusal | Wisconsin Jail Time Laws
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