Court allows speeder to cite different statute on appeal

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When, on appeal, defendant Justin Bachinski changed his focus in a case in which he was ticketed for speeding, he did not violate court rules, according to the 3rd District appellate court.

Bachinski, who argued an obstructed speed limit sign was the cause when he was pulled over in Superior for going 44 in a 25 mph zone, initially relied upon the Manual on Uniform Traffic Control Devices in his circuit court defense. MUTCD requires municipalities to keep their signs clear and unobstructed, based on Wis. Stat. 346.57(6)(a) and 349.065.

At trial in Douglas County Circuit Court, the city of Superior countered that many provisions of the MUTCD were largely recommendations and not mandatory. The obligation to keep signs clear from obstruction was only a guideline, and Bachinski could not avoid responsibility for speeding by relying on the MUTCD.

Buchinski offered several pictures of the “posted” speed sign in question, showing it partially and fully obstructed by shrubbery. The photos allegedly were taken only two days after the ticket was issued.

In its oral decision, the trial court sympathized with Bachinski. Judge Kelly Thimm found that the sign had been clearly obstructed, stating, “I see where the defendant is coming from, and that it’s not fair.”

But Thimm also found that the MUTCD language was only a guideline, and ruled in favor of the city of Superior. Bachinski was found guilty of speeding, with a judgment imposing forfeiture and a fine.

On appeal, Bachinski dropped his reliance on the MUTCD, saying that the language of Wis. Stat. 346.02(7) should control, namely: “No provision of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in the proper position and sufficiently legible to be seen by an ordinarily observant person.”

Reviewing the statute, the court agreed that 346.02(7) did apply to the current case, and did not suffer from the infirmities of relying on the MUTCD.

The appellate court found that Bachinski was speeding, that the city of Superior was required to post a 25 mph speed limit sign, but could not enforce the limit against Bachinski because the sign was obstructed at the time, a fact acknowledged by the circuit court. City of Superior v. Justin E. Bachinski, 2013 AP 39.

Counsel for Superior argued that the factual findings necessary to support a ruling on Wis. Stat. 346.02(7) were not completely ripe.

“The trial court did not have the opportunity to make an analysis of Wis. Stat. 346.02(7),” counsel said. There was no review of standards for legibility or even if that particular section of roadway needed to have a legible sign.

In response, the court said that the factual case was complete, and that judicial administration allowed for consideration of the new issue.

The court can consider such new issues within its judicial discretion if there are “compelling circumstances” involved, such as in Sears v. State, 94 Wis.2d 128 (1980), or if the court has a “reason to do so,” citing Segall v. Hurwitz, 114 Wis. 2d 471 (1983).

When no new facts are raised but only questions of law, the court said, the appellate court can consider new legal theories.

“An additional argument on issues already raised in the circuit court does not violate the general rule against raising issues for the first time on appeal,” the court wrote.

In the circuit court, Bachinski always maintained that “he could not be guilty of speeding because the sign was covered by a tree branch.” This was just a variation of his original argument attacking the MUTCD, and well within the judicial discretion granted to appellate courts.

The appellate court also cited State v. Weber, 164 Wis.2d 788, a 1991 search and seizure case where the parties had focused on the “automobile exception” issue in the trial court. There, the Wisconsin Supreme Court found it appropriate to hear arguments and issue a ruling addressing the legal theory of a search based on an “inventory setting,” which had only been raised on appeal.

Accordingly, the appellate court reversed the forfeiture judgment imposed by the circuit court, with instructions to vacate and enter a judgment of acquittal.