Drivers Who Refuse Chemical Testing Can Challenge Traffic Stop at
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
June 26, 2012 – A driver who refuses chemical testing for drugs
and alcohol can still challenge the initial traffic stop at a
“refusal hearing,” according to a recent decision by the
Wisconsin Supreme Court. Unfortunately for Dimitrius Anagnos, that doesn’t help.
Under Wis. Stat. section 343.305,
the state’s implied consent statute, a driver’s license can
be revoked if he or she fails to submit to chemical testing at the
request of law enforcement.
At the “refusal hearing,” a defendant can challenge whether
police had reasonable cause to believe the person was operating under
the influence of drugs or alcohol, and whether the person was
“lawfully placed under arrest” for violating an OWI-related offense.
Anagnos refused chemical testing when police
stopped his vehicle in 2010. After receiving a notice of license
revocation for refusing the chemical test, he argued at a refusal
hearing that his license should not be revoked because police did not
lawfully stop his car.
That is, Anagnos argued that police did not have probable cause or
reasonable suspicion to make the stop. The circuit court agreed,
dismissing the refusal charge.
court affirmed, explaining that police do not have
authority to request chemical testing if they don’t have probable
cause or reasonable suspicion to make a traffic stop.
The state appealed to the Wisconsin Supreme Court, arguing that
defendants cannot challenge the constitutionality of traffic stops at
the refusal hearing stage.
The state also argued that reasonable suspicion and probable cause in
refusal hearings goes to whether the individual is intoxicated based on
all the circumstances leading up the arrest, from the police
officer’s point of view, not whether the individual is lawfully
placed under arrest.
v. Anagnos, 2012 WI 64 (June 26, 2012), the supreme court held
that drivers who refuse testing can challenge the constitutionality of
the traffic stop during a refusal hearing, but in Anagnos’s case,
the police stop was constitutional based on all the circumstances.
Justice Ann Walsh Bradley’s lead opinion explained that a
“traffic stop may be supported by reasonable suspicion even when
the officer did not observe the driver violate any law.”
In other words, if an officer has specific and articulable facts to
suspect that an individual has committed or is committing a crime, the
stop can be upheld as constitutional, the court noted.
“When the totality of circumstances is considered in light of the
constitutional principle that there need not be a violation of the law
to give rise to a reasonable suspicion, a different picture
emerges,” Justice Bradley wrote.
The lead opinion, supported by five justices, explained that Anagnos
made “a series of unusual and impulsive driving choices,
suggestive of impairment.” This was enough, in the court’s
view, to give police reasonable suspicion to make an investigatory stop
of Anagnos’s vehicle.
The court remanded the case for a circuit court order revoking
Anagnos’s license, which does not resolve the subsequent OWI
charge that he faces based on the same incident.
Justice Annette Ziegler wrote a concurring opinion, joined by Justices
Patience Roggensack and Michael Gableman, which joined the lead opinion
but clarifies the scope of the ruling.
The concurrence notes that the Anagnos case addresses only the
state’s “refusal charge,” not the separate charge of
operating while under the influence of an intoxicant. Justice Ziegler
explained that individuals don’t have a right to counsel in
refusal cases, which are civil.
Further, Ziegler noted that the state has a lesser burden of proof in
refusal cases, meaning that a driver is not precluded from relitigating
the probable cause issue in a related OWI case.
Note: Justices David Prosser and Patrick Crooks did not