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Traffic forfeiture — speeding — defense of “necessity”

State v. Tammy S. Camden, 2012AP1451, District 4, 5/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court concluded a driver’s speeding was legally justified after accepting her testimony that she exceeded the speed limit in order to get away from a vehicle following in close proximity and copying her every move. The court of appeals reverses, concluding the defense of legal justification or “necessity” is unavailable under State v. Brown, 107 Wis. 2d 44, 55, 318 N.W.2d 506 (1982), which recognized legal justification as a defense to a speeding charge, but only when the speeding was caused by the actions of a law enforcement officer:

¶7        In Wisconsin, the supreme court is the law-developing, or policy making court. See State v. Schumacher, 144 Wis. 2d 388, 405-07, 424 N.W.2d 672 (1988). The court of appeals, in contrast, is mainly an error correcting court. Id. Although this court has a role in developing the law as it exists, it cannot declare new law. Id. Instead, “[W]e are duty-bound to apply the law as it presently exists.” Thomas ex rel. Gramling v. Mallett, 2004 WI App 131, ¶20, 275 Wis. 2d 377, 685 N.W.2d 791, aff’d in part and rev’d in part on other grounds, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523.

¶8        Extending the “legal justification” defense established in Brown to include causes other than law enforcement officers would be incompatible with the error-correcting function of this court. Accordingly, because the supreme court has not extended the defense of necessity to apply to civil forfeiture actions for speeding if the cause is someone or something other than a law enforcement officer, I conclude that the circuit court erred in determining that it applied in this case.  The judgment of the circuit court is therefore reversed….

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