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State v. Morrissey4/4/2000
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
APPEAL from a judgment of the circuit court for Milwaukee County: RONALD S. BROOKS, Judge.
Reversed.
Scott Morrissey appeals from the judgment of conviction for operating an automobile while under the influence of an intoxicant - third offense, following his guilty plea. He argues that the trial court erred in denying his motion to suppress evidence. This court agrees and, therefore, reverses.
. The facts relevant to the resolution of the issue on appeal are undisputed. On July 26, 1998, City of Wauwatosa Police Officer Peter John Drusick arrested Morrissey for operating an automobile while under the influence of an intoxicant. The parties stipulated to the following facts:
After being advised of his rights under the Implied Consent Law, [Morrissey] was asked to submit to a blood test. When [Morrissey] indicated that he did not wish to do so, he was told by law enforcement, that if he did not agree to submit that he would be strapped down and blood would be forcibly drawn from him. Based upon that information, [Morrissey] agreed to submit to a blood test. [Morrissey] was willing to submit to a breath test (Intoxilyzer 5000).
. Morrissey offers several theories in support of his arguments that he "did not in fact consent to seizure of his blood nor was there valid implied consent," and, further, that the seizure of his blood was "unreasonable under the fourth amendment." While some of his theories are imprecise and unconvincing, one is specific, significant and, as measured by Wisconsin case law, novel. Morrissey maintains, "The only penalty for refusing under the implied consent law is the revocation of the defendant's operating privileges-nothing in the implied consent law authorizes an involuntary blood draw."
. At first glance, Wisconsin case law seems to come tantalizingly close to conclusively rejecting the novel theory Morrissey presents. But carefully considered, the case law sends mixed messages. Fastidiously sorting out the facts and holdings, however, one ultimately recognizes that none of the case law has (1) presented the exact circumstances of this case; or (2) addressed the key argument Morrissey makes: that under Wisconsin's implied consent law, once an arrestee refuses to submit to a blood test, police must immediately respond with the statutorily prescribed revocation procedure, and not compel submission by threatening an arrestee that he or she "would be strapped down and blood would be forcibly drawn." Consistent with the case law and the sound public policies it recognizes, and in furtherance of prudent police practices, this court concludes that Morrissey is correct.
. Wisconsin Stat. § 343.305(2) (1997-98), a portion of Wisconsin's implied consent law, provides, in part:
Any person who ... operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol ... when requested to do so by a law enforcement officer.
Moreover, blood may be drawn involuntarily, and without a warrant, from a person lawfully arrested for a drunk-driving related offense. See State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993).
. "Application of the implied consent statute to an undisputed set of facts, like any statutory construction, is a question of law," subject to de novo review. State v. Reitter, 227 Wis. 2d 213, 22
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