Motor Vehicles – OWI — bail

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — bail

A mandatory condition that all drunken driving defendants receive treatment while on bail is unconstitutional.

“The State argues that the mandatory condition is appropriate as ‘[a]ll defendants who are required to participate in the Waukesha county pretrial intoxicated driver intervention program have been found to have driven while intoxicated at least once before, and are virtually certain to have driven while intoxicated again, showing a pattern of drinking and driving.’ We agree with the State that the pretrial program is a reasonable condition of release to protect the public from some repeat drunk driving defendants. We disagree with the State that a blanket program applicable to all those falling within a certain class is an appropriate act of the judiciary. The judiciary has a duty to consider on an individual basis the appropriate conditions of release for one charged with a crime, and we do a disservice to both the community and those charged with crimes to delegate our obligation to a blanket program.”

“In this case, the circuit court did not erroneously exercise its discretion in imposing conditions of bail upon Wilcenski as the court made an individualized determination that treatment and monitoring were appropriate conditions of release for Wilcenski. Wilcenski had the right to decline those conditions and await his trial in the confines of the county jail. On the other hand, a circuit court that follows a blanket policy that mandates participation in a pretrial program as a condition of release for all persons based on only one factor (the nature of the offense), without making an individualized determination that that condition is appropriate, erroneously exercises its discretion in setting conditions of bail. See id., ¶5.”

Affirmed.

Recommended for publication in the official reports.

2012AP142-CR State v. Wilcenski

Dist. II, Waukesha County, Domina, J., Reilly, J.

Attorneys: For Appellant: Fay, Daniel P., Pewaukee; Fay, Erin, Pewaukee; For Respondent: Balistreri, Thomas J., Madison; Juech, Brian J., Waukesha