Dane County OWI Court Change

Apparently, the Dane County OWI Court is receiving more referrals than it can handle.  The advisory board has concluded that the most efficient way to address the problem is to eliminate refusals per se as a qualifying criterion for admission.  So, from arrest date of May 1, 2015 forward, Dane County OWI Court will not accept people solely on the basis of a refusal.  A BAC of .20 or greater will be the sole initial eligibility criterion.  If someone refuses, but has a blood draw with BAC of .20 or higher, that person still gets in.  Dane County OWI Court, however, is eliminating the refusals without a test and the refusals with a test of under .20.
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When a Whiff of Alcohol is Enough

Not enough people know this, but in Wisconsin .02 is the prohibited alcohol concentration for a person with three or more OWI convictions. That means with three or more OWI convictions, one drink could be enough for a prohibited alcohol concentration charge.

The Wisconsin Supreme Court recently considered the question of how much evidence a police officer needs to require a preliminary breath test on a driver when the officer knows that the person has three prior OWI convictions.  Wisconsin law requires that during an OWI stop, the officer may not compel a breath test without probable cause to believe that the person violated a Wisconsin’s drunk driving laws.  Normally, this means that evidence that the person was drinking is not enough because mere drinking and driving is generally not against the law.  Where the officer knows that the person has three prior OWI convictions, however, the person may have a prohibited alcohol concentration, but not appear intoxicated.  In State v. Goss, the Wisconsin Supreme Court held that the smell of alcohol is enough under these circumstances to request a PBT.

This decision should not be interpreted too broadly.  The officer still needs to have sufficient evidence of three prior OWIs.  In many cases, the officer will not know whether the driver has any prior OWIs at the time he requests the PBT.  If the officer does not have sufficient information of three prior OWIs or alcohol related offenses, the smell of alcohol should not be enough to request a PBT.

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Flow Chart for Dane County Participants in Rock County Regional Veteran’s Diversion Court

Dane County Instructions

1.    Defense Attorney determines his/her client is a veteran who served in the US Military.

2.    Client is sent to the County Veteran’s Service Officer (CVSO) B. J. Ganem, City-County Building Room 108, 608-266-4158 to determine:

a. Client’s eligibility for federal veterans health benefits, and;

b. Obtain the client’s DD 214 if they do not have a copy, and;

c. Process the appropriate forms to V.A. Regional to receive health care services from the Veteran’s Administration (VA).

If client is not eligible as determined by V.A. Regional, the process ends here.

If eligible, Mr. Ganem will provide the veteran with documentation for defense counsel to take the next step. The process can take several months.

3.    If found eligible for VA health benefits the veteran defendant should advise his/her attorney, and then and only then the defense attorney should discuss the matter with the Dane County District Attorney’s Office to determine whether the DA would consider this particular defendant and the crime charged would be  appropriate for assignment to the Rock County Regional Veteran’s Diversion Court.  If not, the process ends here and the case is managed according to standard protocols.

If there is a consensus, then go to the next step.

4.    Defense Attorney and District Attorney negotiate the terms of an agreement for end result both in the case the veteran defendant successfully completes the Veteran’s Diversion Court treatment, and in the case of a failure to complete the treatment.  The contract must be specific in documenting the agreement to include which charges are to be plead to before entering the diversion court, and what charges and result would be agreed upon in either result as outlined above.

5.    When the negotiations are completed in step four and a signed contract is ready, the defendant is directed to the William S Middleton VA Hospital to undergo a mandatory screening and needs assessment.  This must be completed before the defendant can be considered for or is accepted into the diversion court.  The defendant should take with him/her a copy of the contract, a copy of the complaint, and a copy of the defendant’s CCAP criminal record. Call for an appointment:
Edward Zapala, VA Justice Outreach Social Worker
608-256-1901 ext. 16418

6.  The needs assessment will have one of two results:
a.The defendant is found to have treatment needs (i.e., Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), AODA treatment, anger management treatment, mental health treatment for any other issues, etc.)  If any single treatment need or combination of treatment needs are identified, the defendant is eligible for admission into the Rock County Regional Veteran’s Diversion Court.

Mr. Zapala will provide the veteran a letter documenting the above to give to defense counsel to take the next step.

b. If the screening fails to identify a treatment need, then the defendant is not eligible for the diversion court, the process for this defendant ends here, and the defense counsel should handle the case in the standard manner, including sentencing as scheduled by the assigned judge.

7.    If treatment needs are found, defense counsel advises the assigned court and requests a plea hearing be set. The signed diversion contract, properly executed by the parties (defendant, defendant’s attorney, and the DA) is presented to the assigned judge who will accept a plea to the agreed charge(s) but withhold a finding of guilt.  The matter is then referred to the Rock County Regional Veteran’s Court for processing.

The assigned Dane judge’s staff will send the contract, complaint and CCAP criminal record to:
Judge James Daley
Rock County Courthouse
51 S. Main Street
Janesville, WI 53545

Judge Daley’s staff will schedule court appearances and send notices to the defendant and counsel.

8.    The veteran must sign authorizations and releases on forms acceptable to the VA to permit release of information to the court to facilitate monitoring of the treatment to determine compliance to treatment.  Mr. Zapala will coordinate this step.

9.    The VA will provide treatment to the defendant as identified in the screening and as a result of the veteran’s status as a veteran with  qualifying military service.  While the VA does not provide treatment for domestic violence issues, Mr. Zapala can assist the veteran and his/her counsel with identifying options. The treatment for domestic violence issues (i.e., the Domestic Violence Intervention Program (DVIP)) will be provided at the local level, but the veteran will be treated in conjunction with the other treatment provided by the VA and the defendant will be required to sign a release to provide the court access to the DVIP treatment records to permit monitoring by the Court to ensure compliance to treatment goals.

10.    When the defendant completes the diversion program, or is terminated from the program by Judge Daley, the matter will be referred back to the assigned Dane court by Judge Daley’s staff for implementation of the contractual terms. The assigned judge will sentence the defendant, not the Rock County Regional Veteran’s Diversion Court Judge.

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Dane County Veteran’s Treatment Court

Veteran’s Treatment Court is a hybrid Drug and Mental Health Court that uses a special court models to serve veterans struggling with addiction, mental illness, and/or co-occurring substance abuse and mental health disorders. A defendant is eligible for this program if s/he has served in the U.S. Armed Forces, is eligible for Veterans Service Benefits and has a demonstrated treatment need that is treatable.

This court is pre-adjudication, which means that it occurs before there is a conviction. The defendant must enter a plea but the court withholds a finding of guilt.  This is similar to other programs like the first offender’s program, deferred prosecution program or drug court.

The District Attorney and defense lawyer must agree to allow the defendant’s case into Veteran’s Treatment Court and a contract for participation is created.  To determine if there is a treatment need, the defendant must undergo an assessment by the Veterans Administration (VA).

The defendant appears before the Veteran’s Treatment Court judge on a regular basis, Rock County Judge James Daley.  Even in a Dane County case, the Veteran’s Treatment Court occurs before Judge Daley.

Before a defendant gets referred to Veteran’s Treatment Court the defendant meets with the the Dane County Veteran’s Service Officer (CVSO).  The phone number for the CVSO is 266-4158.   The CVSO will determine the following:  1)  Defendant’s eligibility for federal veterans health benefits; 2) Obtain the defendant’s DD 214 if s/he does not have a copy; and 3) Process the appropriate forms for the defendant to receive health care services from the Veteran’s Administrative (VA).

If the defendant is eligible for VA health benefits then and only then the defense attorney should discuss the matter with the District Attorney’s (DA) Office to determine whether the DA would consider this particular defendant and the crime charged would be appropriate for assignment to the Rock County Veteran’s Treatment Court.

If there is an agreement between defense counsel and the District Attorney’s Office, parties will inform the court that they stipulate to a referral to Veteran’s Treatment Court.

A Stipulated Disposition and Referral to Veteran’s Treatment Court will be filed with the court. The stipulation will be signed by the defendant, defense counsel and a member of the District Attorney’s Office. The plea hearing will take place. At the plea hearing it will be noted on the record what the agreement is. (Example: Court accepts plea for count __ – referred to Veteran’s Treatment Court in Rock County. Count 1 dismissed, bail continued.)

Here is a sample Veteran’s Court agreement.

Branch office personnel should fax the following documents to Judge Daly’s Office as soon as possible after the hearing:      Fax:  (608) 743-2226, Attn:  Juelane Tuebert, Judicial Assistant to Judge Daley

1.    Criminal Complaint
2.    Copy of electronic court record
3.    Veteran’s Court Treatment Diversion Contract (Word and PDF versions)

Cases with citations for any charges being dismissed and/or charges with convictions  should be routed to the administrative office to the CT III assigned to that case type to close out.  The case file should then go to the criminal court clerk if needed.  The case file will then be returned to the assigned trial branch.

A letter will be sent from Judge James Daley, Rock County Veteran’s Treatment Court Judge, informing the assigned trial court that the case will be heard on a specific date and time, as a referral to Veteran’s Treatment Court.

An entry should be made in the court record as follows by branch office personnel:

EVENT:        LETC    (Letters/Correspondence)
ADDT’L TEXT:        Rock Co Circuit Court; case is being heard as to                                 referral to Veterans Court on 05-26-11 at 3:30pm.

Another entry should be made in the court record as follows:

EVENT:        SCAC    (Specialty Court C Accepted)
ADDT’L TEXT:        Veteran’s Treatment Court.

There is no set length of time for the treatment court, it all depends on the defendant and his/her needs. Length could range from a few months to a few years.

The trial branch clerk/CT III should schedule a “File Review” in the case for monitoring purposes. The file review should be every 3-4 months at a minimum and can be longer. Text should be put in the activity comments as to why the file review is scheduled (Example: Def participating in Veteran’s Treatment Court). The case file should be kept in a separate location in the branch office designated for Veteran’s Treatment Court files.

Branch office personnel can call Judge Daley’s secretary, Juelane Teubert, at (608) 743-2261 to inquire as to the defendant’s participation in Veteran’s Treatment Court.  It is not necessary to make the call but it can be done if your office would like to do so.

The assigned trial branch will not receive updates from the Veteran’s Treatment Court as to how the defendant is doing in the program. When the trial branch does hear from the court, it will be to either advise that the defendant has completed the program or is being terminated from the program.

Depending on what occurs, one of the following entries should be made in the court record:

Defendant Successfully Completes Veteran’s Treatment Court

EVENT:        SCFA (Specialty Court C Completed)
ADDT’L TEXT:        Veteran’s Treatment Court

Defendant was terminated from the Veteran’s Treatment Court

EVENT:        SCTA (Specialty Court C Terminated)
ADDT’L TEXT:        Veteran’s Treatment Court

A hearing will need to be held in the case for one of two actions to occur:

1)    The count remaining open for successful completion of the Veteran’s Treatment court will be disposed of per the agreement.

2)    An adjudication/sentencing hearing will be held.

After the hearing the case file should be routed to the Administrative Office for the CT III assigned to that case type to close out the case file. Depending on what happened at the last hearing, the case file may or may not need to go to the Criminal Court Clerk for further processing.

The case file is then routed to the Records Center to be placed on the “to be checked-in shelf” for filing in the records center.

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Request for Refusal Hearing – Don’t Miss the Deadline

Under what is known as Wisconsin’s implied consent law police may request a person to provide a sample of his or her breath, blood or urine after an arrest for operating a motor vehicle under the influence of an intoxicant.  They almost always ask for a breath or blood sample.  The idea of “implied consent” is that if you drive on Wisconsin’s public roads, you have already consented to breath, blood or urine test if requested by a police officer. If you refuse to provide this sample despite the “implied consent,” the officer may issue “notice of intent to revoke” operating privileges.  This notice informs the driver that his or her license will be revoked in 30 days, unless the person requests a refusal hearing within 10 days.

Do not miss this 10-day deadline!  If you miss the deadline, you lose the right to challenge the refusal.  In a first offense case, the refusal is actually worse than the first offense OWI.  That means that even if the stop was illegal and the entire case should get thrown out, you still lose the refusal.  The best course of action is to contact a qualified Wisconsin DWI defense immediately after the ticket or notice is issued.

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GPS Tracking Requires a Warrant

In United States v. Jones, the U.S. Supreme Court recently ruled that police must get a search warrant before using GPS technology to track criminal suspects.  Justice Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required. The Court held that by attaching a GPS device to a person’s vehicle, officers encroach on a protected area, which requires a search warrant signed by a judge.  In this case, all nine Supreme Court justices agreed that the placement of the GPS on the suspect’s vehicle violated the Fourth Amendment’s protection against unreasonable search and seizure.

The use of GPS devices by police is becoming a common investigative tool.  I see it in the investigation of violation of restraining order and stalking cases.  This decision by the Supreme Court does not prevent the use of GPS devices, but it does make it more difficult for the police.  A challenge to the warrant or lack of warrant also gives the defense an additional means to attack GPS evidence in a criminal case.

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OWI Treatment Court in Dane County Starting July 1, 2011

Dane County plans to embark on a treatment court in third offense OWI cases.  The program is set to being July 1, 2011.  The program is supposed to offer intensive case management, treatment, and judicial oversight in an effort to promote public safety by getting high risk offenders treated with the goal of eliminating further driving under the influence.  All third offense refusals and OWIs with a BAC of at least .20 are eligible for the program unless the defendant has a past conviction or present charge for OWI-related death or serious personal injury.

The program will work like this.  After conviction, the court places the person on two years probation, with a 9-12 month jail sentence. The jail sentence is stayed after the person serves 14 days in jail with work release.  The person is not eligible for the bracelet during the 14 days jail.  The person gets assessed as soon as possible, most likely during the first 14 days.  If the person is not eligible for OWI treatment court, he or she is returned to court for possible alterations to the sentence.  If the person is eligible for OWI treatment court, the program starts.  The usual term of judicial supervision is 12 months, but the term may be shortened or lengthened.   The program consists of 4 phases. At the beginning, the person is required to appear in court every two weeks.  Participants are also monitored for sobriety.  The imposed and stayed jail sentence is always available as a sanction.  Naltrexone treatment is supposed to be available.

The program is run through the Department of Corrections.  Termination from the program will result in having to serve the jail sentence.

Branch 1 plans to hold OWI court on Fridays.

An eligible defendant who declines the program or gets kicked out is eligible for work release during the jail sentence, but not home detention.  The expectation is that the assessment and treatment in the program will satisfy the DMV driver safety plan.

This program is still in the development stage and is subject to modification.

Only Dane County residents with cases in Dane County qualify.

The program offers an opportunity for qualifying defendants, since a person could walk away with 14 days of jail on an OWI charge that would normally lead to a few months or more of jail.  Failure in the program will probably leave most people worse off than before the program.  The program is demanding in terms of time and expectations, and will be difficult for anyone not committed to staying away from alcohol.

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Prosecutorial Misconduct and False Testimony After US v. Freeman

The Seventh Circuit recently affirmed a district court’s order of a new trial based on prosecutorial misconduct in U.S. v. Freeman, case # 09-4043.  The government claimed in Freeman that the defendants were part of a federal drug conspiracy that sold crack at the Cabrini Green housing project.  Two of the defendants admitted that they sold drugs, but they asserted that they sold on their own, not as part of the government’s alleged conspiracy. 

The evidence at trial established that the conspirators used an apartment called the “penthouse” for the drug operation.  It was clear that the “penthouse” was used exclusively in 2003.  One of the government’s key snitches testified at trial that he saw the defendant at the “penthouse.” The snitch went on to describe in detail the drug related activities that the defendant allegedly engaged in when he was there.   This defendant, however, was in prison from 2002 to 2005, so he could not possibly have done the things that the snitch claimed.  The defendant’s lawyer informed the government of that fact well before the trial.  The government, nevertheless, plowed forward with the snitch’s testimony.  The prosecutor actually solicited specific details of what the defendant allegedly did at the “penthouse,” even though he could not possibly have done these things because he was in prison.  On cross, when the defendant’s attorney attempted to discredit the witness with the fact that the defendant was in prison, the prosecutor objected.  Finally, toward the end of the trial, 12 days after the snitch testified, the prosecutor stipulated that the defendant was in prison at the critical time.  Still, in closing arguments, the government relied on the snitch’s testimony in important respects and argued that the snitch may have been mistaken as to the time frame but that what he said occurred at the “penthouse” was true.  The defendant objected and ultimately the district court found that this was prosecutorial misconduct and ordered a new trial.

It is well-settled that the government may not knowingly use false testimony in a criminal trial.  To get a new trial when the government presents false testimony, the defendant needs to prove the following: That the testimony was false; that the government knew or should have known that the testimony was false; and that there is a likelihood that the false testimony affect the judgment of the jury.

The government in this case argued that their snitch might have been mistaken, not lying, so the defendant cannot prove that the testimony about what happened at the “penthouse” was false.  If the court accepted this line of reasoning, without some admission from the witness that the testimony was false, it would be next to impossible to prove that the testimony was false. The Seventh Circuit rejected the government’s argument for a couple reasons, but the most significant legal reason was that it held that a defendant does not have to conclusively prove that the testimony was false or that the witness could have been prosecuted for perjury. Half-truths and vague statements that could be true in a limited literal sense but give a false impression to the jury could be enough for a new trial.  The fact that the defendant was in prison when the snitch claimed he was at the “penthouse” in a drug conspiracy is enough to establish that the statement was false for purposes of prosecutorial misconduct.

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Driver License Suspensions on Drug Convictions

Section 961.50 of the Wisconsin statutes used to include a mandatory driver’s license suspension for all drug convictions under chapter 961.  This provided for a minimum 6 month driver’s license suspension even for offenses like possession of drug paraphernalia or simple possession of a small amount of marijuana.  That law was changed recently so that the driver’s license suspension is no longer mandatory.   Section 961.50(1) now provides as follows:

If a person is convicted of any violation of this chapter, the court may, in addition to any other penalties that may apply to the crime, suspend the person’s operating privilege, as defined in s. 340.01(40), for not less than 6 months nor more than 5 years.

I never understood the connection between a minor drug offense and a driver’s license suspension.  It was often treated as more or less an add-on punishment in plea negotiations and argued sentences, along the lines of “Oh yeah, and there is the six month driver’s license suspension as well.”  This should no longer be the case now that the suspension is discretionary.

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RDAP – Federal Prison Drug Treatment

The Federal Bureau of Prisons offers a drug treatment program that provides up to one year off of a federal sentence for successful completion.  This program, called RDAP (Residential Drug Abuse Program) is a 9-12 month, 500 hour program offered at various federal prisons.  Most eligible inmates start the program during the last 24 months of their sentence.  RDAP, according to the BOP, is designed for inmates who volunteer for treatment and have documented drug or alcohol abuse problems.


To qualify to participate in RDAP, an inmate must:

1. Have a documented pattern of substance abuse in the 12 months prior to arrest for which he/she is serving his/her current sentence;

2. Be able to complete all three phases of RDAP, including community transition drug abuse treatment; and

3. Be diagnosed by the Drug Abuse Program Psychologist as having a drug use disorder as defined by the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM).

An inmate convicted of a violent offense, as defined by BOP, is not eligible for the sentence reduction.  Also, most inmates with detainers are not eligible for the third phase of RDAP, which makes them ineligible for the one year off.  This includes ICE (immigration) detainers and detainers for charges or sentences in other jurisdictions.  That is one good reason why a federal inmate should work hard to clear up any detainers as soon as possible.


The definition of a disqualifying violent offense has been disputed for close to twenty years.  Title 18, U.S.C. sec. 3621(e)(2), provides in relevant part as follows:

The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.

Section 3621 does not define “nonviolent.”  The BOP first filled in this void by adopting 28 C.F.R. sec. 550.58, which provides that the definition of a crime of violence for purposes of the year off is the same as the definition of crime of violence in 18 U.S.C. sec. 924(c)(3), which states as follows:

 (3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and–

 (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

 (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The BOP later issued a program statement No. 5162.02, section 9 that said that a crime of violence includes drug trafficking convictions under 21 U.S.C. sec. 841 that involved possession of a firearm and felon in possession convictions under 18 U.S.C. sec. 922(g).

The federal circuit courts split on the legality of Program Statement No. 5162.02.  Some circuits held that drug trafficking with a firearm enhancement is not a crime of violence.  Also, the federal statute that authorized the sentence reduction based on drug treatment, section 3621(e)(2)(C), specifically refers to people “convicted” of nonviolent offenses.  A firearm enhancement at sentencing is not a “conviction” for a firearm offense.

In light of the circuit split, the BOP amended the rule to prohibit early release for completion of the drug program for inmates convicted of a felony “that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives.”  28 C.F.R. sec. 550.58(a)(1)(vi)(B).

The amendment created a circuit split that the Supreme Court stepped in to decide in Lopez v. Davis, 531 U.S. 230 (2001), where the Court found that the BOP has the discretion of categorically deny early release to certain classes of defendants, including defendants with prior involvement with firearms in connection with the commission of a felony.

Another circuit split occurred over whether the BOP’s approach was appropriate, but this spilt is presently 4-1 in favor of BOP.  The one circuit court against the BOP rule concluded that the BOP “failed to set forth a rationale for its decision to categorically exclude prisoners convicted of [firearm possession] offenses “ that was not arbitrary.  Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008).  In response to Arrington, the BOP amended the rule in 2009 to include the following claim:

[I]n the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms.  As the Supreme Court noted in Lopez v. Davis, “denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another’s life.”  The Bureau adopts this reasoning.


Presently, inmates in custody for a felony that involved “the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device)” are not eligible for any time off the sentence even if they complete RDAP.  Also, inmates with prior convictions for homicide, forcible rape, robbery, arson, kidnapping, aggravated assault, or child sex abuse offenses cannot receive the sentence reduction for completion of RDAP.  There is one caveat, however.  In the Ninth Circuit (Arizona, California, Idaho, Montana, Nevada, Oregon and Washington) an inmate who applied for RDAP before March 16, 2009, but was denied the RDAP sentence reduction based on a prior conviction for a violent offense, i.e., a conviction other than the present federal conviction of incarceration, may have a challenge to the denial.  In inmate in this situation may file an administrative remedies request to seek an earlier release date.  A denial of that request may be appealed.

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