Stop can be challenged at refusal hearing

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Whether the driver was lawfully stopped is an appropriate issue to raise at a refusal hearing.

The Wisconsin Court of Appeals on July 27 rejected an argument by the state that a defendant can only raise probable cause to arrest for OWI, not the validity of the stop, as a reason for refusing to take a chemical test for intoxication.

Dimitrius Anagnos was arrested for operating while intoxicated in Walworth County, and refused to submit to chemical testing. At the refusal hearing before the circuit court, Anagnos argued that the stop of his vehicle was not supported by probable cause that he had violated a traffic law or reasonable suspicion that he was intoxicated.

The circuit court agreed, and the state appealed. In an opinion by Judge Paul Reilly, the Court of Appeals affirmed.

The court first held that the stop was unlawful.

The deputy gave several grounds for the stop: Anagnos illegally crossed a median, Anagnos failed to signal a left turn and Anagnos drove at a high rate of speed.

But the court disagreed. First, the median over which Anagnos drove was found by the circuit court to be only one-and-a-half to two inches high, and there were no signs prohibiting turns over the median – findings undisputed by the state. Therefore, crossing the median was legal.

Second, there was no oncoming or following traffic or pedestrians present when Anagnos turned left without using his turn signal. Section 346.34(1)(b) only requires a turn signal “[i]n the event that any other traffic may be affected.” Because there was no other traffic that could be affected by the failure to signal, the court held that this turn was legal as well.

Third, the court found that, despite the officer’s testimony that Anagnos accelerated rapidly, there was no evidence that he was speeding.

Accordingly, the court held that the stop was unlawful.

The court then turned to the state’s second argument – that whether the stop was lawful or not is irrelevant, because the lawfulness of a stop is not an issue the court can consider at a refusal hearing.

Under sec. 343.305(9)(a)5, a court considering a refusal to take a chemical test is limited to considering, in relevant part, “Whether the officer had probable cause to believe the [defendant] was driving or operating a motor vehicle while under the influence of alcohol … and whether the [defendant] was lawfully placed under arrest for [OWI].”

Because the statute includes “whether the [defendant] was lawfully placed under arrest,” the court held that it was proper for the circuit to inquire into whether the deputy had reasonable suspicion to stop Anagnos.

“Without reasonable suspicion or probable cause to pull over Anagnos, the deputy had no authority to require Anagnos to submit to a chemical test,” Reilly wrote.

Barry Cohen, who represented Anagnos, said this case was the first he had handled in which the prosecution had argued that the legality of the stop was not relevant at a refusal hearing. “I had always thought the validity of the stop was a proper basis.”

“I am pleased the Court of Appeals took on both issues head-on and decided them on the merits,” Cohen said. “It would have been very bad law had the court sided with the State – that reasonable suspicion for the stop is not an issue at a refusal hearing.”

What the Court Held

Case: State v. Anagnos, No. 2010AP1812

Issue: Is the legality of the stop a proper ground for inquiry at a refusal hearing?

Holding: Yes. The lawfulness of the arrest is a proper issue, so the lawfulness of the stop is also.

Attorneys: For Plaintiff: Zeke Wiedenfeld, Elkhorn; for Defendant: Barry S. Cohen, Elkhart Lake

David Ziemer can be reached at [email protected].