Motor Vehicles — refusal hearings — stop and detention

Listen to this article

Wisconsin Supreme Court

Criminal

Motor Vehicles — refusal hearings — stop and detention

Section 343.305(9)(a)5.a. does not limit the circuit court at a refusal hearing to considering whether the officer had probable cause to arrest; a defendant may also contest whether he was lawfully placed under arrest.

“In this case, the relevant portion of the statute is found in sub. (9)(a)5.a. That subsection permits circuit courts to consider ‘[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . . . and whether the person was lawfully placed under arrest’ for violation of an OWI-related statute. (Emphasis added).”

“The legislature’s use of the conjunctive word ‘and’ indicates that there are two issues set forth in sub. (9)(a)5.a., and that those two issues are independent. Not only can a defendant contest ‘[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol,’ but also, the defendant can contest ‘whether the person was lawfully placed under arrest’ for violation of an OWI-related statute. Gautschi, 240 Wis. 2d 83, ¶6. If the legislature had intended to limit the inquiry set forth in sub. (9)(a)5.a. to ‘[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol,’ we presume that it would not have included language in the statute indicating that courts must also inquire into ‘whether the person was lawfully placed under arrest for violation of [an OWI-related statute].’”

Reversed and Remanded.

2010AP1812 State v. Anagnos

Bradley, J.

Attorneys: For Appellant: Sanders, Michael C., Madison; Wiedenfeld, Zeke, Elkhorn; For Respondent: Cohen, Barry S., Elkhart Lake