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Attorney challenging evidence in OWI homicide case

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Nico Savidge
July 30, 2013

JANESVILLE—In a controversial decision earlier this year, the U.S. Supreme Court ruled that law enforcement did not have blanket authority to take blood samples from people suspected of drunken driving, sparking a wave of changes in how officers investigate intoxicated driving cases.

Before the decision, if someone refused to give a sample of his or her blood, authorities took it anyway—without the driver's consent and without obtaining a search warrant.

Ruling on the case of Missouri v. McNeely in April, however, the court decided that practice was unconstitutional.

The decision has had an obvious impact on local law enforcement, forcing officers to regularly rouse judges for search warrants after hours.

But what the ruling means for pending cases—those working through the court system now in which police drew blood without warrants when that was allowed—is less clear.

That uncertainty sets the stage for a hearing in Rock County Court on Wednesday that could jeopardize a homicide by intoxicated driving case.

The attorney for Sean M. Waterman, a Brodhead man accused of driving drunk in a crash that killed a passenger in his car, has filed a motion to suppress blood evidence in his client's case because it was taken without a warrant.

Prosecutors, meanwhile, will argue that samples such as Waterman's were taken in accordance with police policies in place before the Supreme Court's decision.

“Police relied on a law that was good at that particular point in time,” Deputy District Attorney Perry Folts said. “(The ruling) doesn't overrule or affect those cases.”

At issue is whether court decisions such as Missouri v. McNeely apply retroactively and  whether evidence obtained from practices later ruled unconstitutional can still be used after the decision goes into effect.

It's a tricky question, left mostly up to how judges weigh a number of factors, UW-Madison law professor and civil liberties expert Donald Downs said.

“When you have a new ruling that changes the law … then it's always going to be an issue that has to be considered,” Downs said.

Blood taken from driver in hospital

One afternoon last September, authorities said, Waterman was driving his Buick LeSabre north on Highway 213 in the town of Spring Valley with a passenger named Douglas Axelson in the car.

As he neared Lang Road, Waterman drifted onto the right shoulder and hit a driveway entrance, according to a criminal complaint. His Buick flew 40 feet, rolled several times and hit an electrical pole before coming to a rest on its side, police said.

Axelson was pronounced dead at the scene.

Waterman was airlifted to Rockford Memorial Hospital, where a Rock County deputy told nurses to take samples of his blood—without a search warrant, said his attorney, Walter Isaacson.

The sample showed Waterman had a blood-alcohol concentration of .286 percent, more than three times the legal limit, according to court documents.

Prosecutors have charged Waterman with homicide by intoxicated driving, third-offense intoxicated driving and two misdemeanor counts of bail jumping. He faces more than 25 years in prison if he is convicted.

In a motion filed last month, Isaacson said taking the blood sample was a violation of Waterman's constitutional rights.

Isaacson has asked Judge Richard Werner to suppress that piece of evidence, excluding it from trial and potentially jeopardizing the prosecution's case.

The deputy had ample time to get a warrant, Isaacson said, but made no effort to do so, making the search unconstitutional.

“If you've got time, you have to get a warrant,” he said.

Although he could not comment on Waterman's case specifically, Folts said attempts to suppress evidence obtained through warrantless blood draws don't have merit.

The McNeely decision that prohibited them applies to current and future cases, Folts said, but is not retroactive.

“It was from that point forward; it doesn't go back,” Folts said.

The question of how far back a decision applies isn't quite that simple, legal experts said, though the outlook for motions such as Isaacson's could be bleak.

And no matter what Werner decides at Waterman's hearing, the larger issue won't be settled on Wednesday and will likely end up in state appellate courts.

Judges weigh previous law, effect on system

There's no hard and fast rule for how Supreme Court decisions affect pending cases, Downs said.

He pointed to a 1965 decision, Linkletter v. Walker, in which the court ruled the constitution “neither prohibits nor requires” that decisions be applied retroactively.

It's left mostly up to judges, who are told to weigh if the defendant is still given an opportunity to defend himself, if law enforcement was reasonably relying on existing law and how applying the decision retroactively would affect justice and public safety, Downs said.

Assistant UW-Madison law professor Cecelia Klingele said it's rare to see courts apply  decisions retroactively.

Judges have denied motions to suppress evidence after similar decisions, Klingele said, citing a 2009 ruling on when police could search a person's car without a warrant after he or she was arrested.

Defense attorneys argued that ruling, in the case of Arizona v. Grant, proved previous searches were also illegal and evidence obtained from them should be suppressed, Klingele said. After all, if police violated one defendant's rights in a case the court ruled unconstitutional, weren't another defendant's rights violated just the same?

But because police were following the practices and laws in place at that time, she said, judges found officers were acting in good faith and upheld the searches.

Klingele expects challenges in the wake the McNeely decision to play out in the same way.

“We want police officers to follow the law,” she said. “So we're not going to punish them, per se, for doing that.”



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