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BENCH BLOG: Wisconsin appeals court takes on troubling trend

By: Jean DiMotto//July 9, 2014//

BENCH BLOG: Wisconsin appeals court takes on troubling trend

By: Jean DiMotto//July 9, 2014//

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Crisp opinion dismantles defendant’s arguments

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC.

Drugged driving is trending in Wisconsin, an unfortunate result of the increased levels of cocaine and heroin circulating in state.

As such, a related case recently made it to the Court of Appeals, originating in Winnebago County.

The resulting decision addresses a matter of statewide concern not only to law enforcement and the criminal bar, but to all citizens in Wisconsin based on the danger of drugged driving.

The incident

Defendant Michael Luedtke was driving someone else’s motor vehicle. He looked down at his cellphone, and when he looked up he saw that the car in front of him had stopped. Unsurprisingly, he rear-ended it.

Although the officer responding to the scene did not notice impairment while talking to Luedtke, a neighbor told the police that he witnessed Luedtke taking items from the vehicle and stuffing them into a sewer. The officer found six syringes and a metal spoon in the sewer.

Upon conducting a consensual vehicle search, the police found more syringes, a brown prescription bottle containing a white powder and another metal spoon. Luedtke acknowledged he had injected morphine, but declined further statement.

Luedtke’s performance of field sobriety tests led the officer to believe he was impaired to the extent of not being able to drive safely. Accordingly he was placed under arrest, cuffed and taken to the hospital for a blood draw.

At the hospital, an officer trained in drug recognition noticed fresh puncture marks near Luedtke’s right thumb and after repeating field sobriety tests, determined Luedtke was impaired.

Luedtke was read “Informing the Accused,” which let him know he could take an alternative test free of charge or have a test done by a qualified individual at his own expense. He did neither.

Trial court matters

The chemical analysis revealed Valium, Effexor (an antidepressant), methadone, cocaine and a metabolite of cocaine in Luedtke’s blood. He was therefore charged with one count of driving with a detectable amount of a restricted controlled substance in his blood and one count of driving while under the influence of an intoxicant.

Nine months after the accident, the State Crime Lab, per its protocol, destroyed Luedtke’s blood sample. Some 10 months thereafter, Luedtke brought a motion to suppress the blood analysis on the ground that his constitutional rights were violated because he wasn’t able to test the sample himself before it was destroyed.

The motion was denied by Winnebago County Circuit Judge Karen Seifert.

State v. Luedtke was tried to a jury that returned a split verdict: Luedtke was found guilty of driving with a detectable amount of a restricted controlled substance in his blood, and not guilty of driving while under the influence of an intoxicant.

Luedtke appealed.

Statute challenged as unconstitutional

Luedtke first argued the statute criminalizing driving with a detectable amount of a restricted controlled substance in one’s blood unconstitutionally violates due process because it is a strict liability statute, one that doesn’t require knowledge or intent. The state responded that the statute is rationally related to the “severe societal problem of drugged driving.”

In an opinion written by Judge Lisa Neubauer, presiding judge of the District 2 Court of Appeals, the court acknowledged that most criminal statutes require scienter. The very language of this statute, however, together with its legislative history demonstrate that the Legislature only intended for the state to prove the presence of a detectable amount of controlled substance, not impairment or intent.

Moreover, there are related strict liability statutes, such as the one criminalizing driving with a prohibited blood alcohol concentration, where intent does not have to be proven. The Legislature meant to ease proof requirements.

Neubauer also identified three studies underscoring the point that drugged driving is “a serious threat to public safety.” The studies revealed that 18 to 33 percent of fatal car accidents are caused by drugged drivers. A strict liability statute serves the “great” need to protect the public from drugged driving.

The court also noted it had previously decided the statute does not violate substantive due process in State v. Smet. The Court of Appeals is bound by its own precedent.

Lastly, the court wrote that other states have per se liability laws for substances in a driver’s body. All told, Wisconsin’s statute was meant to be a strict liability statute and passes constitutional muster under a due process analysis.

Second due process challenge

Luedtke also challenged on due process grounds his inability to retest his blood sample because of its destruction. To prevail on such a claim, Luedtke needed to demonstrate that the evidence was exculpatory at the time it was destroyed or that it was destroyed in bad faith.

Since the sample was destroyed pursuant to laboratory protocol, Luedtke couldn’t show bad faith. And the sample was inculpatory, so he could not show that it was evidence that would have excluded him from the crime.

Moreover, Luedtke was informed of his right to have blood drawn by a different qualified person, an opportunity he forewent. Additionally he was able to confront and cross examine all persons in the chain of custody including those who performed, analyzed and destroyed the sample. Accordingly, due process requirements were met.


This is a classically crisp Neubauer opinion. If it can be said in 100 words, she can say it in 75. She writes logically and lucidly, which makes her opinions easy to digest.

One can only hope that the statute has a deterrent effect on this troubling trend.


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