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Suppression argument forfeited by plea to OWI 1st

City of Appleton v. Jacob Anthony Vandenberg, 2015AP2649, District 3, 11/8/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Because he entered a plea to OWI, first offense, Vandenberg forfeited his arguments that police lacked reasonable suspicion to stop him for operating while intoxicated or hit-and-run under § 346.69, and the court of appeals declines to disregard the guilty-plea-waiver rule.

Police stopped the truck Vandenberg was driving after it struck a concrete median and metal sign and deviated from its course. The officer thought the driver might be intoxicated or, alternatively, had damaged property and left the scene without stopping. (¶3). He moved to suppress, arguing there was no damage to the median or the sign or his truck, and therefore no basis to stop him. (¶4). The circuit court concluded the officer had reason suspicion to believe the operator was intoxicated or had committed “hit-and-run,” though without citing a specific statute. (¶5).

By pleading to OWI 1st, Vandenberg forfeited the right to raise the suppression issue on appeal. That’s because OWI 1st is a civil offense, and the statute that preserves suppression issues despite a plea, § 971.31(10), applies only to criminal cases. County of Racine v. Smith, 122 Wis. 2d 431, 436-37, 362 N.W.2d 439 (Ct. App. 1984). (¶¶9-10).

Of course, the guilty-plea-waiver rule is administrative, not jurisdictional, so the court could address the merits of the arguments if, among other factors, an adequate record was developed on the issue and the nature of the issue merits being addressed. (¶11). Vandenberg’s two claims don’t meet these standards. First, Vandenberg argues the officer would have reasonable suspicion to stop him for hit-and-run only if § 346.69 is interpreted to require drivers to immediately stop when they damage property; because the plain language of the statute doesn’t require that, he claims, the officer made an unreasonable mistake of law in stopping him for violating the statute. (¶12). But he never made this argument in the circuit court:

¶13     The circuit court … never had an opportunity to interpret Wis. Stat. § 346.69 or apply it to the present facts. Vandenberg disputed whether he struck and caused damage to the sign as a factual matter in his suppression motion, but he never contended that his compliance or noncompliance with his duty to inform under § 346.69 was relevant to reasonable suspicion or rose to a level worthy of charging an actual hit-and-run violation…. Because this issue of statutory interpretation was never presented to the circuit court, we need not address it. State v. Gaulke, 177 Wis. 2d 789, 793-94, 503 N.W.2d 330 (Ct. App. 1993).

Second, he challenges whether there was reasonable suspicion for intoxicated driving, but the applicable law on this issue is well-settled and it’s therefore not an issue the appellate courts need to take up and develop. (¶14).

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