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Court of appeals sidesteps constitutionality of “community caretaker preliminary breath test” and decides McNeely issue before SCOW

State v. Walter J. Kugler, 2014AP220, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

Kugler challenged his first OWI conviction by arguing that the state trooper who stopped him did not have the requisite probable cause and improperly requested, as a community caretaker, that he submit to a PBT (which he refused). The court of appeals reframed the issue as whether the trooper had reasonable suspicion of an OWI when he detained Kugler for field sobriety tests. You can guess the result. The court of appeals also rushed ahead to decide a McNeely issue that the Wisconsin Supreme Court is literally poised to decide.

Kugler pitched the “community caretaker preliminary breath test” issue as one of first impression, but the court of appeals did not bite. It held that even without considering Kugler’s PBT refusal, the trooper had reasonable suspicion to ask him to perform field sobriety tests.

At the time the trooper requested Kugler perform the PBT and field sobriety tests, he was aware that (1) it was approximately 11 p.m. on a Saturday night and Kugler was coming from a Bucks game; (2) as the operator of the vehicle, Kugler was “lost”; (3) his passenger was “obviously impaired”; (4) Kugler “deflected” the trooper’s question as to whether he too had been drinking; and (5) upon further questioning, Kugler stated that he had “a beer,” yet in separating Kugler from his passenger and the vehicle, Kugler smelled of a “heavy odor of intoxicants in open air that shouldn’t be there if he only had one beer.” Slip op. ¶11.

Kugler also argued that the trooper’s subsequent warrantless blood draw violated the 4th Amendment per Missouri v. McNeely, 569 U.S.__ (2013)(holding that the natural dissipation of alcohol in the blood stream does not present a per se exigency that justifies a warrantless blood draw).  Three months before the trooper ordered the blood draw, the United States Supreme Court had granted certiorari review, thus calling into doubt State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).

 We agree with the circuit court; the law in Wisconsin did not change because the Supreme Court granted certiorari review of the McNeely decision by the Missouri Supreme Court. Rather, until the United States Supreme Court issued its ruling in McNeely in April 2013, Bohling remained the clear and well-settled law in Wisconsin and law enforcement officers relying upon it did so in good faith.[6] Thus, the trooper properly relied upon Wisconsin law as it existed at the time of the blood draw and, accordingly, the evidence should not be excluded. See State v. Reese, 2014 WI App 27, ¶¶18-22, 353 Wis. 2d 266, 844 N.W.2d 396 (applying good faith exception to exclusionary rule in a pending OWI case where warrantless blood draw was obtained prior to Supreme Court’s decision in McNeely).  Slip op. ¶24.

Two points.  First, the court of appeals ruled against Kugler based on Reese, but Reese filed a petition for review which SCOW is holding in abeyance pending its decisions in State v. Foster, Case No. 2011AP1673-CRNM; State v. Kennedy, No. 2012AP523-CR; and State v. Tullberg, Case No. 2012AP1593-CR. Click here for our post on the “McNeely Three”, which were argued just last week, and here for our post on Reese.  Arguably, the court of appeals could have (or should have) followed suit.  Second, depending on your client’s circumstances, you might want to request the abeyance of an appeal that raises an issue presented by the “McNeely Three”.  And, remember, you can always determine whether your client’s issue is pending in SCOW by visiting On Point’s “Pending in SCOW” page.

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