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Inservice 2010-2011 Legal Update. Waukesha County Technical College. Legal Update. Presented by: Lloyd Carter, Waukesha County Deputy DA. Kevin Osborne, Waukesha County Assistant DA. Pablo Galaviz, Waukesha County Assistant DA. Leslie Boese, Waukesha County Assistant DA.

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Inservice 2010-2011

Legal Update

Waukesha County Technical College


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Legal Update

  • Presented by:

    • Lloyd Carter, Waukesha County Deputy DA.

    • Kevin Osborne, Waukesha County Assistant DA.

    • Pablo Galaviz, Waukesha County Assistant DA.

    • Leslie Boese, Waukesha County Assistant DA.

    • Sgt Chris Jaekl, New Berlin Police Department


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Legal Update, 2010-2011

  • Legislative Update

  • WI Act 100, New OWI laws

    • Elements of the new law.

    • Ignition Interlock Devices

    • Restricted Controlled Substances

  • Legal aspects of heroin investigations

    • Basic drug information

  • Miscellaneous Issues

    • Report Writing

  • Fact Scenarios/4th Amendment review


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Legislative Update

  • WI Act 251 (effective 05/22/10) Resist/Obstruct (946.41)

    • New section created: 946.41 (2r) Whoever violates sub. (1) and causes substantial bodily harm to an officer is guilty of a Class H felony.


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Legislative Update

  • WI act 163 (effective 03/30/10)

    • 343.305 (3) (ar) 1. If a person is the operator of a vehicle that is involved in an accident that causes substantial bodily harm, as defined in s. 939.22 (38), to any person, and a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the law enforcement officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in par. (a) or (am) may be administered to the person. If a person refuses to take a test under this paragraph subdivision, he or she may be arrested under par. (a)

    • Officers MUST read new Informing the Accused!


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Legislative Update

  • WI act 163 (effective 03/30/10)

    • Created 343.305 (3) (ar) 2.

      • If a person is the operator of avehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in par. (a) or (am) may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under par. (a)

      • Officers MUST read new Informing the Accused!


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Legislative Update

  • 2009 WI Act 12 (effective 07/05/10)

    • Synopsis of WI Smoking Ban, from the WI Legislative Reference Bureau:

      • Act 12 generally prohibits smoking in enclosed public places and places of employment. Key definitions in the law:

        • “Smoking” means burning or holding, or inhaling or exhaling smoke from a lighted cigarette, cigar, pipe, or any other lighted smoking equipment.

        • “Enclosed” means a structure that has a roof and more than two substantial walls.

        • A “public place” is defined as a place that is open to the public, regardless of whether a fee is charged, or a place to which the public has lawful access or may be invited.

        • A “place of employment” is any indoor place that employees normally frequent during the course of employment, including an office or work area, an employee lounge, a restroom, a conference or meeting room, a classroom, or a hallway.


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Legislative Update

  • 2009 WI Act 12

    • Where is indoor smoking banned?


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Legislative Update

  • 2009 WI Act 12

    • Where is indoor smoking allowed?

      • Private Residence

      • Retail tobacco store or tobacco bar

      • A room used as a residence by only one person in an assisted living facility or such a room in which all occupants have requested in writing to be allowed to smoke

      • Tribal casinos or facilities

    • Indoor smoking areas may not be established.

    • Businesses may establish outdoor smoking areas, as long as they are a reasonable distance from entrances


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Legislative Update

  • 2009 WI Act 12

    • Who enforces the law?

      • The person in charge of a facility is responsible for making reasonable efforts to prohibit persons from illegally smoking. For example, a bartender may not provide matches, ashtrays, or other smoking-related equipment, and must take all of the following steps:

        • Post warning signs or provide other appropriate notification;

        • Refuse to serve a person who is smoking in a tavern, restaurant, or private club;

        • Ask a person who is smoking to refrain from doing so;

        • Ask a person to leave if he or she refuses to stop smoking; and

        • Immediately notify an appropriate law enforcement agency if a smoker refuses to leave after being asked to do so.

      • Sheriffs and municipal police officers may issue citations if they observe someone smoking where it is not permitted, or they may respond to citizen complaints or when notified by the person in charge of a facility.


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Legislative Update

  • 2009 WI Act 12

    • Penalties for violating the law

      • A person who smokes where it is prohibited is subject to a forfeiture of not less than $100 nor more than $250 for each violation.

      • If the person in charge of a facility fails to take any required action to stop illegal smoking, he or she is subject to a forfeiture of $100 for each violation, but no more than one penalty per day. If the person in charge has not previously received a warning notice, then the law enforcement officer must issue a warning for the first violation in lieu of a citation.


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Legislative Update

  • 2009 WI Act 62 (effective 03/01/10)

    • Creates 346.66 (2) (a)

      • Sections 346.67, 346.68, and 346.69 apply to the operator of a vehicle that, whether by operator intention or lack of control, departs a highway or premises described in sub. (1) (a) immediately prior to an accident if the accident does not occur on real property owned or leased by the operator.


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Legislative Update

  • 2009 WI Act 220 (effective 11/01/10)

    • Creates 346.89(3)

      • 346.89 (3) (a) No person may drive, as defined in s. 343.305 (1) (b), any motor vehicle while composing or sending an electronic text message or an electronic mail message.

      • b) This subsection does not apply to any of the following:

        • 1. The operator of an authorized emergency vehicle.

        • 2. The use of any device whose primary function is transmitting and receiving emergency alert messages and messages related to the operation of the vehicle or an accessory that is integrated into the electrical system of a vehicle, including a global positioning system device.

        • 3. An amateur radio operator who holds a valid amateur radio operator’s license issued by the federal communications commission when he or she is using dedicated amateur radio 2−way radio communication equipment and observing proper amateur radio operating procedures.

        • 4. The use of a voice−operated or hands−free device if the driver of the motor vehicle does not use his or her hands to operate the device, except to activate or deactivate a feature or function of the device.


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WI OWI Laws

  • 2009 WI Act 100 (effective 07/01/10)

    • Major changes to WI OWI laws

      • Making a first OWI-related offense a criminal offense if a child younger than 16 years of age is present in the vehicle at the time of the offense.

      • Requiring the installation of ignition interlock devices (IIDs) for all repeat drunk drivers and for first offense drunk drivers with an alcohol concentration of 0.15 or more.

      • Making a 4th OWI-related offense a felony, if that 4th offense occurs within five years of a prior OWI-related offense.

      • Can no longer order vehicle seizure

      • If subject to an IID (Ignition Interlock Device) order, your PAC is .02 for the duration of the order

      • Absolute sobriety violations, if there is a passenger under 16 in the vehicle at the time of the violation, is now a criminal violation.

      • An OWI causing injury violation/crime, if the person has a prior OWI offense, is a Class H felony.

      • It is a crime to fail to have an IID installed if the court orders installation under the new sec. 343.301(1g).

      • The removal, disconnection, tampering or circumvention of an IID device is a crime if the device was ordered installed by the court pursuant to the new sec. 343.301(1g).

      • The removal, disconnection, tampering or circumvention of an immobilization device is a crime if the device was ordered installed by a court order.


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WI OWI Laws

  • WI Act 100 resource

    • http://www.legis.wisconsin.gov/lc/publications/act/2009/act100-sb066.pdf


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WI OWI Laws

  • Three basic provisions to WI OWI Laws:

    • No person may drive or operate a vehicle while under the influence of an intoxicant, controlled substance, or controlled substance analog.

      • 346.63(1)(a). This statute deals with IMPAIRMENT.

    • No person drive or operate a vehicle with a detectable amount of a restricted controlled substance.

      • 346.63(1)(am). This statute does not require impairment. A blood test is necessary to show ANY amount of a restricted controlled substance.

    • No person may drive or operate a vehicle with a Prohibited Alcohol Concentration.

      • 346.63(1)(b). This statute requires some type of evidential test (breath, blood, or urine) to show a Prohibited Alcohol Concentration.

  • “Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.

  • “Operate” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.

  • Each of these sections can stand alone, or be used in a combination of any two, or all three can apply!


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WI OWI Laws

  • OWIs with Controlled Substances or Restricted Controlled Substance

    • 346.63(1) Operating under influence of intoxicant or other drug (1) No person may drive or operate a motor vehicle while:

      • (a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or

      • (am) The person has a detectable amount of a restricted controlled substance in his or her blood.


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WI OWI Laws

  • 340.01 (50m) “Restricted controlled substance” means any of the following:

    • (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

    • (b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).

    • (c) Cocaine or any of its metabolites.

    • (d) Methamphetamine.

    • (e) Delta-9-tetrahydrocannabinol.

  • If you suspect that an individual is under the influence of a controlled substance or a restricted controlled substance, have blood drawn and call in a drug recognition expert.


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WI OWI Laws

  • Prohibited Alcohol Concentration

    • 346.63(1)(b)

      • No person may drive or operate a vehicle with a prohibited alcohol concentration.

        • PAC for 1st, 2nd, 3rd offense: .08

        • PAC for 4th and subsequent offense: .02

        • PAC for person under IID order: .02

        • PAC for commercial motor vehicle: .04

        • PAC for person under 21: .00


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WI OWI Laws

  • OWI Curve Defense

    • What is it?  Absorption and elimination rates can be used by the defense at trial. 

    • If a person has a PAC of .08, an argument can be made that at the time of  driving they were under .08. It is very important to get a drinking history (when drinking, where drinking and how much to drink) in order to refute this argument.


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Ignition Interlock Devices

  • WI Act 100 instituted several significant changes in regards to Ignition Interlock Devices (IID). These changes were effective 07/01/10:

    • IID’s will now be mandatory for all repeat OWI’s, all refusals, and all 1st offense OWI’s with a PAC > 0.15 (343.301(1g)).

    • Anyone ordered to have an IID is subject to a PAC of 0.02% (340.01(46m)).  The ordered person will have their driver’s file annotated.  The IID will not allow a car to start/function if their PAC is > .02.


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Ignition Interlock Devices

  • IID changes effective 07/01/10

    • Anyone ordered to have an IID must have an IID installed on every vehicle owned by them, unless doing so would cause an undue financial hardship (343.301(1g)).  IIDs are only mandatory on class D vehicles.  Class M, A, B, and C operation is permitted without an IID

    • Once a breath sample is accepted by the IID and the vehicle is started, the IID will require another test sometime within 5 minutes.  This is called a Rolling Retest.  Also, after starting and passing the initial test and 1st retest, there are 2 random additional rolling retests within 30 minutes

      • IMPORTANT:  If the sample given for the rolling retest fails (> .02), the IID will activate the vehicle’s horn and hazard lights until the engine is turned off.  If you observe a car in this condition, you have PC to stop for a PAC violation.  Make sure to articulate your observations in your report.  Also, be sure to mention based that, based on your training, you are familiar with failure of an operator to pass a rolling retest will cause vehicles to operate in such a condition.  Failing a rolling retest does not shut the car off or disable the car. 


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Ignition Interlock Devices

  • IID changes effective 07/01/10

    • A person ordered to have an IID must have it installed within 14 days.  Failure to install an IID is now an equipment violation, under 347.413(1)   $240/0 points. 

    • Costs range from $75 - $160 to install.  There is also a monthly maintenance fee range of $65 - $70 / month.  So, you will see a lot of failure to install

    • The newest generations of IIDs now have cameras and GPS built into them


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Ignition Interlock Devices

  • IID issues:

    • If you run a vehicle registration and get a return that reads, “OWI SANCTION:  IID REQUIRED,” this alone is not PC to stop the vehicle.

    • If a person ordered to have an IID is stopped while operating a car owned by someone else and the car does not have an IID, the operator is violating his/her DL restrictions under 343.43(1)(d), $114/3points


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Legal Aspects of Heroin Investigations

  • Procedures for investigating

    • If there is a death, treat as a homicide

    • Get a detective assigned

    • Take photos of scene

    • Where were drugs obtained

    • Obtain cell phones, so searches can be done later to determine contacts made

    • Look for drug paraphernalia, computers, prescription bottles

    • Determine where victim was and who victim was with in the 72 hours before death.

    • Determine history of victim’s drug use (when, how much, what)

    • Obtain written statement from all witnesses


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Miscellaneous Issues

  • Importance of Good Report Writing

    • Focus is not on how to write a report but what is contained within the report

    • Cover elements of crime(s)

    • Date of offense

    • Venue (location of offense)

    • ID of defendant

    • Name, address, phone numbers and date of birth for all witnesses and victims


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4th Amendment Review

  • The touchstone of the fourth amendment is reasonableness. 

  • Reasonableness does not demand that the officer be factually correct in his or her assessment of the situation.  The critical question is whether the officer’s response  was objectively reasonable and understandable.

  • It is not a technical, legalistic concept but a flexible, commonsense measure of the plausibility of particular conclusions about human behavior.

  • A court will assess a search’s reasonableness under the totality of circumstances by balancing the need for the search against the alleged invasion.

  • The State has the burden by clear and convincing evidence to prove that the stop and detention was reasonable and in compliance with the Fourth Amendment.


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Fact Scenario #1

  • On 9/5/10 at approximately 2:22 a.m., Waukesha Communication Center (WCC) receives a call from an anonymous caller regarding a possible drunk driver.  The caller states that an older model silver minivan is “all over the road”.  WCC dispatches Deputy Jones to the scene.  Deputy Jones sees what appears to him is the suspect vehicle, so he immediately activates his emergency lights to conduct a traffic stop.  The suspect vehicle travels a short distance and pulls into a driveway of a residence.

    • Did WCC provided sufficient information to Deputy Jones in order for him to  form a reasonable basis to perform the traffic stop?

    • What other information, if any, is needed?

  • Assume that that the caller states that an older model silver minivan, license plate #007   is “all over the road”.  Deputy Jones responds to the scene, but he does not locate the suspect vehicle.  Deputy Jones runs the plate number through DOT, which gives him an address located at an apartment complex.  Deputy Jones proceeds to the complex and he observes the suspect vehicle parked in the parking lot and a male subject is exiting the vehicle.

    • What if any thing should Deputy Jones do?

    • What if there is no one around the vehicle?

  • Assume that the caller states that an older model silver minivan, license plate #007   is “all over the road”.  Deputy Jones to responds to the scene, but he does not locate the suspect vehicle.  Deputy Jones runs the plate number through DOT, which gives him an address to a single family residence.  Deputy Jones and backup officer, Deputy Smith proceeds to the residence.  They observe the suspect vehicle parked in the driveway.  Deputy Jones knocks on the front entrance door; no response. 

    • Is Deputy Smith legally allowed to walk to the rear entrance door?  


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Fact Scenario #2

  • On 9/5/10 at approximately 2:22 a.m., Waukesha Communication Center (WCC) receives a call from an anonymous caller regarding a possible drunk driver.  The caller states that an older model silver minivan, license plate number #007 is “all over the road”.  WCC dispatches Deputy Jones to the scene.  Deputy Jones sees the suspect vehicle and follows the vehicle.  Deputy Jones obtains a basis for a legal traffic stop, but before he can activate his squad car’s emergency lights, the vehicle pulls into a driveway of a residence and it enters an open garage and parks.  (This residence belongs to the driver).

    • Can Deputy Jones enter the garage to make contact with the driver?

    • What if Deputy Jones orders the driver out of the garage and he refuses? 

  • Assume Deputy Jones positions himself at the exterior entrance to the garage and he talks with the driver.  During this time, Deputy Jones notes that the driver has a strong odor of intoxicants coming from his breath, slurred speech and is unsteady on his feet.  Can Deputy Jones enter the garage? 

  • Assume Deputy Jones obtains a basis for a legal traffic stop, so he activates his squad car’s emergency lights.  The suspect vehicle travels 3 blocks, pulls into a driveway of the residence and it enters an open garage and parks.

    • Can Deputy Jones enter the garage to make contact with the driver?

    • What if Deputy Jones orders the driver out of the garage and he refuses?


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Fact Scenario #3

  • On 9/5/10 at approximately 2:22 a.m., Waukesha Communication Center (WCC) receives a call from an anonymous caller regarding a possible drunk driver.  The caller states that an older model silver minivan, license plate number #007 is “all over the road”.  WCC dispatches Deputy Jones to the scene.  Deputy Jones sees the suspect vehicle and follows the vehicle and he obtains a basis for a legal traffic stop.  Deputy Jones activates his squad car’s emergency lights and the vehicle pulls into the driveway of a residence and parks.  From running the plate number through DOT, Deputy Jones is aware that plate lists to this residence.  As soon as the suspect vehicle stops, Deputy Jones observes that there are three occupants in the vehicle: the driver and two passengers. 

    • Can Deputy Jones require identification from each passenger?

    • Under what circumstances can Deputy Jones perform a pat down search of the  vehicle?

    • Under what circumstances can Deputy Jones perform a pat down search of the  passengers?

    • Under what circumstances, can Deputy Jones perform a search of the vehicle?

    • What if Deputy Jones discovers that one of the passengers has a warrant out for her arrest for delivery of marijuana, can that be a basis for a search of the vehicle?

  • Assuming that Deputy Jones has a basis for a lawful search of the vehicle, what areas of the vehicle can be searched?

    •      Glove compartment (what if locked)?

    •      Center console?

    •      Backpack in the back seat?

    •      Cell phone in the back seat?

    •      Trunk?


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Fact Scenario #4

  • On 9/5/10 at approximately 2:22 a.m., Waukesha Communication Center (WCC) receives a call from an anonymous caller regarding a possible drunk driver.  The caller states that an older model silver minivan, license plate number #007 is “all over the road”.  WCC dispatches Deputy Jones to the scene.  Deputy Jones sees the suspect vehicle and follows the vehicle and he obtains a basis for a legal traffic stop.  Deputy Jones activates his squad car’s emergency lights and the vehicle pulls in driveway of a residence and parks.  From running the plate number through DOT, Deputy Jones is aware that plate lists to this residence.  As soon as the suspect vehicle stops, Deputy Jones observes that there are three occupants in the vehicle: the driver and two passengers.  After running the driver through FSTs, Deputy Jones informs the driver that he being placed under arrests for OWI.  As Deputy Jones attempts to handcuff the driver, the driver breaks free and runs into the residence. 

    • Can Deputy Jones pursue the driver into the residence?

    • Can Deputy Jones wait for backup before pursuing the driver?

  • Assume that Deputy Jones and backup officers legally enter the house and make contact with the driver in the living room. 

    • Under what circumstances can the deputies conduct a protective sweep? 

    • If the driver is arrested in his living room, other than the driver, what areas of the residence if any can the officers search?

  • Assume Deputy Jones approaches the vehicle and identifies all the occupants.  Deputy Jones discovers that one of the passengers has a warrant out for her arrest for delivery of marijuana.  As Deputy Jones is running the driver through FSTs, the passenger exits the vehicle and runs into the residence.

    • Can Deputy Jones pursue her?

    • What if a cell phone falls out of a pocket of the passenger while she is running into the residence, and the phone opens up and on the display is the passenger smoking what the he recognizes is a blunt:

    • Can any type of search be conducted on the cell phone?

    • What can Deputy Jones do if the cell phone rings?

    • If Deputy Jones did not see the display of the passenger smoking the blunt, and the  cell phone rings, can he answer the phone?


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Fact Scenario #5

  • Deputy Jones observes a vehicle traveling on the roadway.  He runs the plate number and owner information through DOT and the plate lists to a male subject with a revoked license.  Deputy Jones  conducts an OAR traffic stop. 

    • Can Deputy Jones perform a Gant search of the vehicle?

    • What if the driver has no identification on him, can he search the vehicle?

    • What if identification information that Deputy Jones receives from DOT/ WCC does not match the driver, can he search the vehicle? 

    • What if DOT lists the plate to a male subject, whose driver’s license is revoked and  Deputy Jones observes that the driver is a female; can he conduct a traffic stop?

    • What if DOT lists the plate to a male subject whose driver’s license is revoked and  Deputy Jones cannot tell if the driver is male or female; can he conduct a traffic stop?

    • Can Deputy Jones call in a drug sniffing dog to perform a search of the vehicle?

    • Does Deputy Jones have to concern himself with prolonging the stop, so the dog can get on the scene?

    • Does it matter if the vehicle is parked in a private driveway to conduct the a dog  sniff? 

  • Assume that Deputy Jones conducts a Speeding traffic stop:  what is the proper way to conduct a consent search?


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Fact Scenario #6

  • Deputy Jones conducts a lawful arrest of a driver for a drug related OWI 3rd offense, (this is based upon the driver’s poor observed driving, his performance on the FSTs and his PBT test result of .00%).  Deputy Jones decides to call in a Drug Recognition Officer (DRO), who meets him at the hospital. 

    • Assuming the driver invoked his right to an attorney, can the DRO evaluate the driver at the hospital?

    • Assuming the driver has not invoked his right to an attorney on the OWI arrest, but 10  days ago he invoked his right to an attorney while in custody on a burglary arrest: can  he be asked questions about the burglary?  

    • What if the driver invoked his right to silence while in custody on the burglary arrest,  can he be asked questions on the burglary? 

  • Assume Deputy Jones approaches the vehicle and there are two passengers.  Deputy Jones discovers that passenger #1 has a warrant out for her arrest for delivery of marijuana, and passenger #2, who is only 15 years old and has a warrant out for his arrest for burglary.  The passengers are transported to the police station for questioning. 

    • What if upon the arrival at the police station, Deputy Jones becomes aware that passenger #1 has an attorney for the drug charge, can passenger #1 be questioned?

  • Assume that while passenger #1 is being questioned, Deputy Jones becomes aware that her attorney is out in the hallway and wants to talk to her.  What if anything does Deputy Jones have to do?

  • Assume that Deputy Jones informs passenger # 1 of her Miranda rights and she responds that maybe she should talk to her lawyer.  What if anything should Deputy Jones do?

  • Assume that while passenger #1 is being transported to the police station, she clearly  states that she does not want to answer any questions without first consulting with her lawyer.  What if anything should Deputy Jones do?

  • Assume that the dad for passenger #2 (the 15 year old) is at the police station and he  tells his son not to answer any questions.  The dad then tells Deputy Jones that he is not to question his son until their lawyer arrives.  What if anything should Deputy Jones do? 

  • Assume that on the scene of the traffic stop, Deputy Jones was not initially aware that passenger #2 was wanted for questioning in regards a burglary matter.  Deputy Jones decides to transport passenger #2 to his residence.  During the transport, dispatch informs Deputy Jones that passenger #2 is wanted for questioning in regards to burglary matter.

  • Should Deputy Jones ask passenger #2 any questions about his involvement in the burglary during the transport?

  • If Deputy Jones does question passenger # 2, how should this be done?


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