Wisconsin Court of Appeals
MADISON, WISCONSIN. In one of very few DUI convictions overturned by the Wisconsin Court of Appeals this year, Attorney Tracey A. Wood once again set the legal community back with her surprising win. Attorney Wood successfully argued before the Court of Appeals a question on what actually constitutes 'operating a motor vehicle' under Wisconsin drunk driving laws.
The Beloit police found Steven A. Herbst, Sr. slumped over the steering wheel of his van, which was running while parked outside a bar on June 6, 2010. Officer Corey Howes awoke Mr. Herbst; Mr. Herbst admitted to have drunk earlier in the evening. Police claimed that Mr. Herbst registered a .15 percent blood-alcohol content.
Mr. Herbst was convicted of operating while under the influence (OWI), Wisconsin's DUI law, by the Beloit Municipal Court.
Mr. Herbst appealed his conviction to the Rock County Circuit Court where the prosecutor argued that 'putting one's hands on the steering wheel' constituted operating the vehicle. Judge Kenneth Forbeck allowed the argument, and the jury convicted Mr. Herbst of opearting a motor vehicle with a prohibited alchol concentration.
Mr. Herbst then proceeded to hire Attorney Tracey A. Wood of the Madison, Wisconsin criminal and drunk driving defense firm of Van Wagner & Wood.
On appeal, Attorney Tracey Wood argued that no Wisconsin case has ever held that touching a steering wheel was sufficient evidence to establish an OWI conviction. Attorney Wood wrote in her brief that Mr Herbst is only guilty of sitting while intoxicated.
The Wisconsin Court of Appeals agreed that while the city of Beloit may have sufficient evidence to prove a first offense OWI, Mr. Herbst never 'operated' a motor vehicle. The prosecution lacked evidence to show that Mr. Herbst actually put the van in motion. According to the Wisconsin Court of Appeals opinion, Wisconsin laws require that there must be an act consistent with 'operation of a motor vehicle' to obtain a conviction.
In a telephone interview, Attorney Tracey Wood stated that she was "glad" the opinion dismissed Mr. Herbst's convictions and that the opinion helped to clarify the definition of operating in OWI law.
What constitutes driving while under the influence under Wisconsin laws?
Judge Paul Higginbotham's 12-page opinion explained, "If the City of Beloit meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes 'operate' within the statutes, that is a correct statement of the law. But... the city plainly intended to convey to the jury that 'operate' includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition."
Wisconsin Court of Appeals District 4, Herbst Decision
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