Drivers Who Refuse Chemical Testing Can Challenge Traffic Stop at Refusal Hearing

By Joe Forward, Legal Writer, State Bar of Wisconsin

June 26, 2012 – A driver who refuses chemical testing for drugs and alcohol can still challenge the initial traffic stop at a “refusal hearing,” according to a recent decision by the Wisconsin Supreme Court. Unfortunately for Dimitrius Anagnos, that doesn’t help.

Under Wis. Stat. section 343.305, the state’s implied consent statute, a driver’s license can be revoked if he or she fails to submit to chemical testing at the request of law enforcement.

At the “refusal hearing,” a defendant can challenge whether police had reasonable cause to believe the person was operating under the influence of drugs or alcohol, and whether the person was “lawfully placed under arrest” for violating an OWI-related offense.

Anagnos refused chemical testing when police stopped his vehicle in 2010. After receiving a notice of license revocation for refusing the chemical test, he argued at a refusal hearing that his license should not be revoked because police did not lawfully stop his car.

That is, Anagnos argued that police did not have probable cause or reasonable suspicion to make the stop. The circuit court agreed, dismissing the refusal charge.

An appeals court affirmed, explaining that police do not have authority to request chemical testing if they don’t have probable cause or reasonable suspicion to make a traffic stop.

The state appealed to the Wisconsin Supreme Court, arguing that defendants cannot challenge the constitutionality of traffic stops at the refusal hearing stage.

The state also argued that reasonable suspicion and probable cause in refusal hearings goes to whether the individual is intoxicated based on all the circumstances leading up the arrest, from the police officer’s point of view, not whether the individual is lawfully placed under arrest.

In State v. Anagnos, 2012 WI 64 (June 26, 2012), the supreme court held that drivers who refuse testing can challenge the constitutionality of the traffic stop during a refusal hearing, but in Anagnos’s case, the police stop was constitutional based on all the circumstances.

Justice Ann Walsh Bradley’s lead opinion explained that a “traffic stop may be supported by reasonable suspicion even when the officer did not observe the driver violate any law.”

In other words, if an officer has specific and articulable facts to suspect that an individual has committed or is committing a crime, the stop can be upheld as constitutional, the court noted.

“When the totality of circumstances is considered in light of the constitutional principle that there need not be a violation of the law to give rise to a reasonable suspicion, a different picture emerges,” Justice Bradley wrote.

The lead opinion, supported by five justices, explained that Anagnos made “a series of unusual and impulsive driving choices, suggestive of impairment.” This was enough, in the court’s view, to give police reasonable suspicion to make an investigatory stop of Anagnos’s vehicle.

The court remanded the case for a circuit court order revoking Anagnos’s license, which does not resolve the subsequent OWI charge that he faces based on the same incident.

Concurring Opinion

Justice Annette Ziegler wrote a concurring opinion, joined by Justices Patience Roggensack and Michael Gableman, which joined the lead opinion but clarifies the scope of the ruling.

The concurrence notes that the Anagnos case addresses only the state’s “refusal charge,” not the separate charge of operating while under the influence of an intoxicant. Justice Ziegler explained that individuals don’t have a right to counsel in refusal cases, which are civil.

Further, Ziegler noted that the state has a lesser burden of proof in refusal cases, meaning that a driver is not precluded from relitigating the probable cause issue in a related OWI case.

Note: Justices David Prosser and Patrick Crooks did not participate.