In our last post, we began a discussion about an interesting and important case that was recently argued before the Wisconsin Supreme Court. It is critical for prosecutors in a DUI case to show that the traffic stop was made lawfully; that is, that the officer had probable cause to stop the defendant.

An unlawful traffic stop can unravel a DUI charge and correctly result in the defendant’s acquittal. However, if the defendant refused to submit to chemical testing during the stop, he may still be convicted of a separate refusal charge, even if the drunk driving charge is later thrown out.

The case before the court seeks to answer an important question: If a traffic stop itself is found to be unlawful, should a subsequent refusal charge still be considered unlawful?

This is a particularly complex issue because refusal hearings are usually held before a DUI trial ever begins. Therefore, a defendant cannot use evidence from the trial to support his claim that he refused a chemical test on the grounds that the stop itself was unlawful.

In many cases, defendants have tried to argue the merits of the traffic stop at the refusal hearing, but with limited success. Speaking before the Court, the assistant attorney general noted: “[An unlawful stop] would impact whether evidence is suppressed. The implied consent statute isn’t meant to get at [that question].” He added that refusal hearings are not the proper or allowable time to consider suppression-of-evidence issues.

But others disagreed, or at least asked questions challenging that assertion. Justice Patience Roggensack noted that if a defendant isn’t allowed to challenge the traffic stop at the refusal hearing, there might be no possible way to avoid losing his driver’s license. And this would be the case even if he initially refused chemical testing because he believed that the traffic stop was unlawful.

The attorney representing the defendant voiced his belief that the lawfulness of the traffic stop needs to be the central issue which validates or invalidates subsequent charges. He said: “Everything rises and falls … on whether the stop was lawful.”

If the Court rules in favor of the defense, this decision could result in a fairer criminal justice process for all DUI defendants in Wisconsin. If not, DUI defendants who refuse chemical testing may still face license revocation, even if they later prove that they were unlawfully stopped.

Source: State Bar of Wisconsin, “Supreme court hears argument against license revocation where police stop unlawful,” April 25, 2012

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