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  • WisBar News
    November 11, 2016

    No Contest Plea Waived First-time OWI Offender's Right to Appeal

    Joe Forward

    Drunk driving

    Nov. 11, 2016 – Repeat drunk drivers have an automatic right to appeal denied motions to suppress evidence after pleading guilty or no contest to the offense, but first-timers (civil offenders) don’t have that same right, a state appeals court recently ruled.

    Jacob Vandenberg pled no contest to first-offense operating while intoxicated (OWI), which is a civil offense in Wisconsin. He entered the plea after the circuit court judge denied his motion to suppress evidence. Vandenberg had argued that the police officer who stopped his vehicle did not have reasonable suspicion to make the stop.

    According to the officer, Vandenberg exited a parking lot in downtown Appleton in the early morning hours and struck a six-inch median and a metal sign. The officer stopped Vandenberg’s vehicle, suspecting he was intoxicated or committed a hit-and-run.

    In court, Vandenberg moved to suppress the evidence obtained from the traffic stop. He denied hitting the median or the sign. But the circuit court found that he did, and denied the motion to suppress. Vandenberg then pleaded no contest to the OWI offense.

    He appealed, arguing that his motion to suppress should have been granted. But in City of Appleton v. Vandenberg, 2015AP2649 (Nov. 8, 2016), a three-judge panel for the District III Court of Appeals ruled that Vandenberg waived his right to appeal.

    The panel explained that under the “guilty-plea-waiver rule,” a defendant waives nonjurisdictional defects and constitutional claims when he or she knowingly enters a guilty or no contest plea. However, there’s an exception for criminal defendants.

    Wis. Stat. section 971.31(10) says, in relevant part, that “[a]n order denying a motion to suppress evidence … may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint.”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    But the panel said this exception did not apply in Vandenberg’s case, because it did not involve a criminal complaint. “[T]hat exception only applies to criminal cases,” wrote Judge Mark Seidl. “Vandenberg pled no contest to a first-offense OWI, a civil offense.”

    The panel also declined to disregard the guilty-plea-waiver-rule in Vandenberg’s case, even though it had authority to do so. The panel explained that courts may disregard the rule after considering several factors, including the adequacy of the record.

    Vandenberg was asking the appeals court to interpret Wis. Stat. section 346.69, which imposes a duty to notify the property owner after striking property on or adjacent to a highway. The statute says drivers must take reasonable steps to do so, but it does not say that drivers must take “immediate” steps to locate and notify property owners.

    Thus, Vandenberg would have argued that the officer did not have reasonable suspicion to stop him for a violation of the statute, if he was not required to immediately act.

    But the panel noted that Vandenberg never made this argument in circuit court. He simply denied that he hit anything. “Because this issue of statutory interpretation was never presented to the circuit court, we need not address it,” Judge Seidl wrote.

    The panel also noted that police can have reasonable suspicion to make a stop for suspected drunk driving, even if the observed driving behavior is not illegal.

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