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  • WisBar News
    August 23, 2017

    Investigatory Stop: Appeals Court Upholds OWI Conviction, Ninth Offense

    Joe Forward

    Drunk driving

    Aug. 23, 2017 – A police officer observed a man walking away from a truck that crashed into a ditch, and stopped him. Recently, a state appeals court rejected the man’s claim that subsequent evidence of operating while intoxicated should have been suppressed.

    In 2012, a Fond du Lac County sheriff’s deputy activated his emergency lights and pulled his squad car in front of Michael Wortman, whom the deputy observed crash his car into a ditch after crossing the center line and over a nearby driveway.

    Wortman showed signs of intoxication. He said he fell asleep at the wheel and drank a “king” can of beer. The officer asked Wortman to get in his squad car to return to the accident scene. Wortman did not object. The deputy then checked Wortman’s driving record to learn that he had eight prior OWI convictions and his license was revoked.

    Wortman failed field sobriety tests and the deputy arrested him at that time.

    In court proceedings, Wortman moved to suppress evidence, arguing that he was unlawfully arrested and any statements he made were inadmissible because the deputy failed to give a Miranda warning before he made them.

    Specifically, Wortman argued the deputy took him into custody when he pulled in front of his path and invited him to get in his squad car, without Mirandizing him. The circuit court did not agree and Wortman pled no contest, receiving a 10-year prison sentence.

    In State v. Wortman, 2016AP1144-CR (Aug. 23, 2017), a three-judge panel for the District II Court of Appeals affirmed the circuit court, concluding the deputy did not violate Wortman’s constitutional rights and his motion to suppress was properly denied.

    The panel noted the police can make investigatory stops with reasonable suspicion that crime activity is afoot. A Miranda warning is not required before performing an investigatory stop, but police must have specific facts to support reasonable suspicion.

    On the other hand, a Miranda warning is required when police make an arrest, and an arrest must be supported by probable cause to believe a crime was committed.

    One of the questions in determining whether police have made an arrest, triggering the Miranda requirement, is whether a reasonable person would believe they were in custody. Wortman argued that his custody began when the deputy pulled in front of him.

    But the three-judge panel ruled that a reasonable person would not believe he was under arrest until the deputy formally arrested him and placed him in handcuffs.

    “[The deputy] had the legal authority to briefly speak with Wortman regarding the accident and to extend the stop based on the additional factors supporting reasonable suspicion,” wrote Judge Paul Reilly.

    The panel noted Wis. Stat. section 968.24, which allows police to temporarily question those under reasonable suspicion of committing crimes, and authorizes the relocation of suspects for questioning “within the vicinity where the person was stopped.”

    Finally, the panel upheld the $1,524 fine the circuit court imposed on Wortman, who argued that the maximum monetary penalty for a ninth offense OWI is $300.

    The appeals court panel clarified that a ninth OWI is a class G felony, and the maximum penalty for class G felonies is $25,000, 10 years in prison, or both.



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