The Court can only conclude Officer Smith did not in fact meet
his obligation under Quelle and Chapter 343 of the Wisconsin
Statutes as far as advising Ms. Sanchez accurately as to the consequences
of failing to take a chemical test.
It is this Court’s conclusion that that misstatement concerning
her eligibility for an occupational license was such that it would
have affected and did affect her ability to weigh the consequences
of refusing to take the test. The motion of the defendant is granted.
Cross
Examination of Police Officer with his Own Report
Question:
Isn’t it true, during this conversation, both Deputy Schneider
and Hartman said you should administer a complete field sobriety
test battery and then subsequently charge him with causing injury
by OWI?
Deputy:
No that’s not true.
Question:
Isn’t it true that in your incident report relating to this
incident you specifically stated that you were informed by Sergeant
Schneider and Lieutenant Hartman that you should administer a
complete FST battery for evidence and should also subsequently
charge Anderson with causing injury by OWI? Isn’t that true?
Deputy:
That’s what my report says.
Question:
And you completed the report, I assume, fairly soon after the
incident, correct?
Deputy:
Yes.
Question:
And one of the reasons you do that is so that you remember
things accurately close in time to when they occur. Would you
agree with that?
Deputy:
Yes.
Question:
And you’re not the kind of person whose memory gets better
with time, are you?
Judge’s Finding
that Client’s Rights Were Violated
Judge:
Senior Airman Johnson was subjected during that entire time
to repeated acts of psychological and physical maltreatment by
security forces personnel assigned to the confinement facility.
The maltreatment was wholly unjustified. No prisoner, whether
in pretrial or post-trial confinement, should be subjected to
the physical abuse, personal humiliation, or psychological torment
suffered upon Senior Airman Johnson in this case. These actions
by the responsible confinement personnel were senseless, criminal,
and void of any legitimate governmental purpose. Such actions
were in violation of Article 13 of the Uniform Code of Military
Justice and constituted cruel and unusual punishment under the
Eighth Amendment to the U.S. Constitution and Article 55…
What happened in this case was a flagrant violation…
...By asking for another test, it becomes a compelled test,
and it is threatening Mr. Baker with consequences that don’t exist,
regardless of whether he requested it or not. Once that information
is provided to him, by a person with the color of authority from
the Sheriff’s Department, it is telling him that now he has to
do the test, but that is not even true… I’m talking about
the impact of reading information that is incorrect, misinforming
somebody of a substantial matter, regardless of the person’s understanding.
It’s not an implied consent test…
Prosecutor:
…Based on that reading, the alternate test was in accordance
with that section.
Judge:
No, it was not. I’m finding as a matter of fact here that
the officer did incorrectly advise the defendant of the applicable
law as it applies to implied consent… In effect, he told
the defendant that the practical effect, if he didn’t take
the test that he requested, was that he was going to get revoked
now, which would have been a refusal, when, in fact, it would
not have been a refusal, because he had already submitted to the
only test that the officer had requested.
