No appeal of first-offense OWI

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Attorneys can no longer let their clients plead guilty to first-offense driving while intoxicated, and still expect to appeal an unsuccessful suppression motion.

In criminal cases, sec. 971.31(10) preserves the right to appeal an order denying a suppression motion, even if the defendant pleads guilty or no contest.

And since 1995, defendants charged with quasi-criminal, civil offenses have been able to do the same. In County of Ozaukee v. Quelle, 198 Wis.2d 269, 542 N.W.2d 196 (Ct.App.1995), the Court of Appeals found that the same purposes the statute serves in criminal cases are also served in civil cases, and a defendant can appeal a suppression motion, despite pleading guilty or no contest.

But on May 12, the Wisconsin Court of Appeals found that Quelle was overruled on other grounds by the Wisconsin Supreme Court in Washburn County v. Smith, 2008 WI 23, 746 N.W.2d 243, 257.

Pursuant to the Supreme Court’s recent pronouncement in Blum v. 1^st Auto & Cas. Ins. Co., 2010 WI 78, 326 Wis.2d 729, 786 N.W.2d 78, that a partially overruled case retains no precedential authority, Judge Gary Sherman wrote for the court, “Quelle is no longer authority for anything.”

Fred A. Ederer was pulled over by a sheriff’s deputy in Columbia County in 2009, and charged with operating a motor vehicle while intoxicated, first offense.

Ederer moved to suppress the evidence, arguing the officer lacked reasonable suspicion to stop his vehicle. The deputy’s purported reason for stopping Ederer was that he failed to use his turn signal when he “turned” from Highway 51 to Highway 22.

The way the intersection is set up, however, a driver who exits Highway 51 to Highway 22 doesn’t actually “turn” but rather, stays in a straight lane that continues going due north. Only if the driver stays on Highway 51 does he physically “turn” to the west.

Since he didn’t turn or switch lanes, Ederer argued, he was not required to activate his turn signal, and therefore, the stop was unlawful.

Nevertheless, the circuit court denied the motion, and Ederer pleaded no contest. He then appealed the denial of his suppression motion, but the Court of Appeals affirmed.

The court held that Ederer waived the right to appeal by pleading no contest.

In his brief, Ederer cited Quelle to argue there was no waiver. In Quelle, the Court of Appeals held that whether a guilty plea waives appeal depends on four factors: (1) the efficiencies resulting from the plea; (2) whether there is an adequate record; (3) whether the appeal appears motivated by the severity of the sentence; and (4) whether the nature of the potential issue dictates that we should hear the case.

But because Quelle was overruled on other grounds, the court found it no longer possesses any precedential value. The court instead applied the law in effect prior to Quelle: “a plea of [no contest], knowingly and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claimed violations of constitutional rights.” County of Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct.App.1984).

In dicta, the court said that, even if Quelle were in effect, it would not hear the appeal. Although the first three Quelle factors were met, the court found the fourth was not.

Judge Sherman quoted the circuit court as follows: “When he exited Highway 51 and went to [Highway] 22, whether it’s straight or not, it is still a turn on a highway, which may affect other traffic (emphasis added by court).”

Analysis

Although this is an authored opinion, it was decided by only one judge, and thus is ineligible for publication. Because it was authored, however, rather than issued per curiam, it can be cited as persuasive authority.

When that happens, defendants will have a very strong argument that the court’s holding is incorrect, and Quelle is still valid precedent.

The Supreme Court in Washburn County v. Smith, did not, as the Court of Appeals claims, “overrule” anything in Quelle.

The court wrote, “Language in Quelle (and any subsequent cases applying Quelle) stating that the Quelle three-prong inquiry, including prejudice, applies when a law enforcement officer fails to provide the statutorily required information is withdrawn.” Quelle, 746 N.W.2d at 257.

Although Blum does hold that a Court of Appeals opinion loses all precedential value if it is overruled on other grounds, nothing in the opinion says that an opinion loses all precedential value when the Supreme Court withdraws specific language from it.

On the contrary, the whole purpose of withdrawing only specific language, is to preserve the remainder of the opinion.

In fact, not only did the Supreme Court not “overrule” Quelle in Smith, it then proceeded to apply Quelle to Smith’s case, because the officer did in fact provide the statutorily required information.

As a result, Quelle is still binding precedent for the holding that a defendant in a civil case does not waive the right to appeal a suppression motion by pleading guilty or no contest.

Unfortunately, in light of this opinion, until the Supreme Court expressly reasserts the continuing validity of Quelle, defense attorneys are at risk of committing malpractice if they advise their clients that a guilty plea does not waive appellate rights in civil OWI cases.

What the Court Held

Case: Columbia County v. Ederer, No. 2010AP2369

Issue: Can a defendant who pleads guilty or no contest to civil first-offense driving while intoxicated appeal the denial of an earlier suppression motion

Holding: No. County of Ozaukee v. Quelle is no longer precedent, so a defendant must go to trial to preserve the right to appeal denial of the suppression motion.

Attorneys: For Plaintiff: Troy Dean Cross, Portage; For Defendant: John Smerlinski, Madison.

David Ziemer can be reached at [email protected].