Recent Opinions of Note:  Source: https://www.trafficresources.org/newsletter

Search of home leading to impaired driving arrest: Consent, exclusionary rule, attenuation doctrine.

The Wyoming Supreme Court provides an excellent discussion of several Fourth Amendment concepts in this case that has the unusual twist of being an impaired driving case that addresses the Fourth Amendment protections of a home. Wyoming Highway Patrol Trooper Undeberg received a report that a car had crashed into a ditch and that the driver appeared intoxicated. Upon running the plates, the Trooper drove to the home of the owner, Nancy Hawken. The Trooper encountered a man who was the owner’s husband. Upon asking to speak to Ms. Hawken, the Trooper followed Mr. Hawken into the mudroom of the home without invitation and without seeking permission. Ms. Hawken came to the mudroom and then went outside to talk with Trooper Undeberg after which Ms. Hawken was arrested for driving under the influence. Ms. Hawken filed a Motion to Suppress claiming Trooper Undeberg’s entry into the home violated the Fourth Amendment. In ultimately finding that Ms. Hawken’s Fourth Amendment rights were violated by the Trooper in entering the home without invitation and without asking permission, the Wyoming Supreme Court rejected the State’s argument that the Trooper entered with implied consent, noting that mere acquiescence is not enough to infer consent. The Wyoming Supreme Court then addresses the Exclusionary Rule and the three factors of the attenuation doctrine exception to the Exclusionary Rule. The Wyoming Supreme Court ultimately remands the case to the trial court to determine whether the Trooper’s unlawful intrusion required suppression. Hawken v. State, 2022 WY 77, 2022 Wyo. LEXIS 73 (June 16, 2022)

Wisconsin's OWI offenders graduated-penalty system found defective under North Dakota v. Birchfield.

In 2017, when Scott Forrett was charged with seventh offense OWI, Forrett had 5 prior convictions and one revocation of driving privileges for refusing a warrantless blood test upon suspicion of impaired driving. The Wisconsin graduated-penalty statute included as prior offenses suspensions or revocations of driving privileges for refusing to submit to a chemical test, including a warrantless blood test, upon suspicion of impaired driving. North Dakota v. Birchfield, 579 U.S. 438 (2016) held that a non-consensual, warrantless blood test was unreasonable under the Fourth Amendment. Fossett argued that the revocation of privileges was based on his refusal to submit to an unreasonable search (warrantless blood draw) and if the revocation of privileges had not been included as an offense, he would have faced a sixth offense OWI which carried lesser penalties. The majority opinion held that using the revocation of privileges for refusing a blood test as a prior offense resulted in Fossett being criminally punished for refusing an unconstitutional search in violation of Birchfield because the sentence for a seventh OWI offense was greater than a sixth OWI offense. The dissent disagreed noting that using a revocation as an offense is merely increasing the sentence for the present offense based on defendant’s prior criminal history, which has been repeatedly held not to be new jeopardy or improper punishment for the prior offense. State v. Forrett, 2022 WI 37, 2022 Wisc. LEXIS 51, (June 3, 2022)