State v. R.R.
Sep 09, 2008OUTCOME: Judgment reversed. DUI-2nd dismissed.
Client and his girlfriend were out drinking. His girlfriend was the designated driver; and she was driving his car. After they left a bar and the girlfriend drove a short distance, she realized her I ... D was still at the bar. She illegally parked outside the bar, turned on the hazards, and left the car running. Client was in the passenger seat. He wanted to make sure that traffic went around the car. So, he grasped the driver door handle, pulled himself over to the driver side, rolled down the driver side window, then began waiving vehicles around his car. An officer noticed the car was illegally parked and decided to investigate. He assumed client was the driver and proceeded accordingly. The officer did not ask if client was the driver until after the arrest. When asked, client immediately advised the officer that his girlfriend was driving. His girlfriend came out of the bar during the field sobriety tests, but did not advise the officer she was driving. Even though she was designated driver, she did have some drinks and did not want to be arrested. At a trial to the Wisconsin Circuit Court, client and his girlfriend testified regarding the above facts. Client further stated that he never intended to operate the vehicle, as he already had one drunk driving arrest. The trial judge found the girlfriend's testimony to be credible. The judge also believed client, except for the part about client pulling himself over to the driver side of the vehicle. The judge went on to find that client intended to operate the vehicle because he pulled himself over to the driver side and found client guilty beyond a reasonable doubt. I knew the trial judge was wrong, as intent is not an element of drunk driving in Wisconsin. So, I took this case on appeal pro bono. On appeal, I argued that no reasonable trier of fact could have found client guilty beyond a reasonable doubt under these circumstances. The Wisconsin Court of Appeals agreed, and reversed the judgment of the circuit court unequivocally.
