Wisconsin Municipal Law Memo – May 5, 2014
State Supreme Court Accepts Another Case With Potential McNeely Issues:
The Wisconsin Supreme Court has accepted another case that may provide guidance on the application of the Missouri v. McNeely decision in Wisconsin. State v. Foster involves a defendant charged with a sixth offense OWI. Unlike the two other cases accepted recently by the supreme court, State v. Tullberg and State v. Kennedy, Foster does not involve a charge of homicide by intoxicated use of a motor vehicle. Foster was charged with OWI (sixth offense) based on three prior alcohol-related convictions in Oklahoma and two in Texas. The jury found Foster guilty. His post-conviction motion alleging ineffective assistance of counsel for failure to collaterally attack the Oklahoma prior convictions was denied. The Court of Appeals found sufficient evidence to sustain the circuit court conviction.
A preliminary breath test was administered to Foster at the scene of the stop, but he had weak breath. He was later transported to the hospital where his blood was drawn, despite his refusal to consent. Missouri v. McNeely was decided following the circuit court conviction and while the appeal proceeded. In McNeely, the U.S. Supreme Court explained that diminishing alcohol as a result of time does not establish a per se exigent circumstance toavoid the need for a warrant to take blood if the defendant does not consent. In addition to the application of McNeely in Wisconsin, the state supreme court may also address the issues of intelligent, knowing and voluntary waiver of counsel in Foster’s Oklahoma cases, sufficiency of the waiver form to demonstrate the understanding of the effect of self-representation, and whether prior convictions should have been admissible to enhance the defendant’s sentence. Thus, not only will this case, along with Tullberg and Kennedy, potentially provide some insight from the court as to the application of McNeely, it may also provide guidance in the always difficult area of collateral attacks/prior convictions.
