Thursday, August 23, 2007

Court overturns OWI conviction - THE SHEBOYGAN PRESS

Judge rules witness's report was not enough

By Eric Litke
Sheboygan Press staff

A Sheboygan woman's drunken driving conviction was overturned Wednesday when a state appeals court judge ruled she should not have been pulled over based solely on a witness's report.

The opinion spared Elizabeth A. Walker a five-day jail sentence but does not set a legal precedent on anonymous tips since it will not be published, officials said.

Walker, 40, of 612 Superior Ave., was convicted in Sheboygan County Circuit Court in January after pleading no contest to second-offense operating while intoxicated, a misdemeanor. She was arrested March 3, 2006 with a blood-alcohol level of 0.17 — more than twice the legal limit of 0.08 — after a Burger King employee reported she was driving strangely in the drive-through.

The seven-page decision by District II Court of Appeals Judge Daniel P. Anderson supported Walker's argument that the officer did not have reasonable suspicion to stop her, calling the employee's report a "bare-boned" tip.

But Sgt. Scott Mittelstadt of the Sheboygan Police Department said the arresting officers acted just as they should have.

"Especially something like a drunk driver, we want to be very vigilant in our pursuit of that," he said. "If you let the person drive a while to see if we observe anything, you always run the risk that that person could have an accident while we're behind them."

According to court records:

Walker was pulled over about 10:45 p.m. after the employee reported Walker's red sport-utility vehicle had gotten stuck in the drive-through and that she appeared to be drunk or in need of help.

Officer Stephen Schnabel, who was at a nearby crash scene, spotted a red SUV at the intersection of 14th Street and Erie Avenue, immediately next to the restaurant. He heard two screeches as the driver of the SUV tried to start the already running vehicle.

Schnabel then alerted Officer Brandon Kehoe, who stopped the SUV on North 14th Street at Michigan Avenue. Walker failed field sobriety tests and handed a credit card to Kehoe when asked for a driver's license.

Walker was ultimately fined $906 and sentenced to five days in jail, though the sentence was stayed pending the appeal.

Circuit Court Judge James Bolgert said the stop was justified since the proximity of the SUV confirmed the tip, as did the "irrational" attempts to start the vehicle. But Anderson ruled that while the observed behavior was "odd," it was not criminal, adding that the tipster did not describe Walker's vehicle specifically enough.

Walker's attorney, Chad Lanning, said the ruling — and his argument — doesn't prohibit the use of anonymous tips, it merely means that this tip was not specific enough to warrant police intervention.

"The laws are very liberal for what it takes to stop somebody, but in this particular case, the officers didn't see any bad driving, the officers didn't see any violations of the law," Lanning said. "This decision upholds people's right to be free from unreasonable stops."

Sheboygan County District Attorney Joe DeCecco said the ruling cannot be cited as precedent in future court proceedings since the court did not order it published, but said it is nonetheless disappointing.

"This is the kind of stuff that happens all the time. This is how we catch drunk drivers," DeCecco said. "Just seeing the SUV by itself, that's not enough, but when someone's apparently twice trying to start an already running vehicle, there's obviously something going on there."

Erik Guenther, a Madison criminal defense attorney, said he doesn't expect the decision to have much impact on future cases because it is very specific in addressing the facts in Walker's situation. For that reason, many appeals court rulings favorable to the defendant go unpublished, he said.

DeCecco said he has not decided whether to appeal the case to the state Supreme Court, a move that would have to also be approved by the state Attorney General's Office.

"While it's disappointing for our specific case, it doesn't establish any new rules, so we may just decide it's not worth the time and effort," he said.

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