April 25, 2012 – The Wisconsin Supreme Court recently heard oral argument to determine whether a person’s license to drive can be revoked if the person refuses chemical testing for operating while intoxicated (OWI), but police made an unlawful traffic stop.
Under Wis. Stat. section 343.305, the state’s implied consent statute, a person’s license can be revoked if he or she fails to submit to chemical testing at the request of law enforcement.
But people who refuse testing can challenge the revocation.
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.
The parties are arguing whether police can make an “unlawful arrest” if the stop itself was unlawful. “Everything rises and falls … on whether the stop was lawful,” said attorney Barry Cohen, attorney for the defendant Dimitrius Anagnos, who faces a 12-month revocation.
Anagnos refused chemical testing after police stopped his vehicle. He argued that police did not lawfully place him under arrest for an OWI-related offense because police stopped his car illegally. The circuit court ruled that police did not legally stop Anagnos.
An appeals court affirmed in State. v. Anagnos, 2011 WI App 118 (July 27, 2011), explaining that police do not have authority to request chemical testing if they don’t have probable cause or reasonable suspicion to make the stop.
The state appealed to the supreme court, arguing that defendants can’t challenge the lawfulness of a police stop at the refusal hearing stage because that hearing only examines whether police had reasonable cause to believe the person was under the influence.
Chief Justice Shirley Abrahamson asked whether police can make a lawful arrest if the traffic stop itself turns out to be unlawful. “Can you have a good arrest if the stop is bad,” she asked.
“[An unlawful stop] would impact whether evidence is suppressed,” said Assistant Attorney General Michael Sanders, who argued that the suppression issue is not one contemplated at refusal hearings. “The implied consent statute isn’t meant to get at [that question].”
Justice Patience Roggensack questioned whether the inability to challenge an unlawful stop at the refusal hearing stage would lead to a license revocation with no remedy, even if the subsequent OWI charge is dropped or a defendant is successful in challenging the OWI offense.
“The fact that you may not have been under the influence at the time of the offense is not a defense to a refusal charge,” Cohen later argued.
