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Defenses – Issue Preclusion — “Actually Litigated” Requirement: OWI – Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving

City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning

Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.


¶11 Thus, a threshold prerequisite for application of the doctrine is that, in order to be precluded from “relitigating” an issue, a party must have “actually litigated” it previously. …

¶12 … By contrast, a determination is not conclusive “as to issues which might have been but were not litigated and determined in the prior action.” …

¶13 The question of whether the arresting officer had probable cause to arrest Nytsch was not “actually litigated” during the judicial review hearing. The court’s order vacating the administrative suspension is more akin to the Restatement’s examples of nonlitigated circumstances, such as when an admission is given and evidence relating to the issue is never heard before a court and therefore a considered judgment is never made.

The court goes on to invoke notions of “fundamental fairness,” which include “the adverse impact on public safety that would result from allowing issue preclusion to prevent relitigation of probable cause under the circumstances of this case,” ¶17. The court also “overrules” (that is not technically correct, but close enough) the unpublished case of Village of Westfield v. Mashek, 1994AP361, 11/10/94, ¶18 n. 6. (Mashek has no precedential value, because it isn’t published, so it can’t be overruled; instead, the court says that the “result” in that case “is wrong.”)


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