Wisconsin Legislature: Arrest; Automobiles And Motor Vehicles; Drunk Driving;

76 Op. Att'y Gen. 95, 96-97 (1987)

Undoubtedly, this provision was enacted to prevent drunken drivers from returning to the road while intoxicated. Presumably, this four-hour statutory limitation sought to provide an adequate time allowance for the arrested intoxicant's blood alcohol content to metabolize to a safer level, equal to or less than .05 percent. Restraining those drivers who pose a danger to themselves and the public for the four-hour statutory period constitutes a preventive measure, designed to promote public safety.

76 Op. Att'y Gen. 95, 97 (1987)

Although the above comments were made when the statute only required a four-hour detention period, their force has not been diminished by the Legislature's increase of the detention period to twelve hours. Rather, the tripling of the time allotted for the intoxicated driver to regain sobriety manifests the Legislature's recognition that some OMVWI arrestees are still too intoxicated to drive four hours after their arrests.¯

76 Op. Att'y Gen. 95, 97 (1987)

Since the purpose in enacting section 345.24 was to provide an adequate time for the arrested intoxicant's BAC to metabolize to .05 percent or less, and since the Legislature recently increased the statute's mandatory detention period to twelve hours, it would be inconsistent with legislative intent to require the release of a driver whose BAC exceeds .05 percent. While not prima facie evidence that a person is under the influence of an intoxicant, a BAC greater than .05 but under .10 is relevant evidence on the issue of intoxication.

See

sec. 885.235(1)(b), Stats.

76 Op. Att'y Gen. 95, 97 (1987)

Reading section 345.24 to require the release of a driver whose BAC exceeds .05 percent would also be inconsistent with the last two sentences of section 969.07, which governs the taking of bail by a law enforcement officer. The last two sentences of that statute provide as follows:

76 Op. Att'y Gen. 95, 97 (1987)

This section does not require the release of a defendant from custody when an officer is of the opinion that the defendant is not in a fit condition to care for his or her own safety or would constitute, because of his or her physical condition, a danger to the safety of others. If a defendant is not released under this section, s. 970.01 shall apply.

76 Op. Att'y Gen. 95, 97-98 (1987)

Because section 969.07 only applies to persons charged with misdemeanors,

see

63 Op. Att'y Gen. 241, 243 (1974), it has limited applicability to those persons arrested for one of the offenses designated in section 345.24, many of whom are charged with civil offenses and some of whom are charged with felonies. Nevertheless, this section envinces the Legislature's intent to permit law enforcement officers to retain custody of those defendants whose physical condition renders them a danger to themselves or others. This intention would be frustrated by requiring the release of OMVWI arrestees who still have a BAC greater than .05.

76 Op. Att'y Gen. 95, 98 (1987)

Support for my opinion that section 345.24 does not require the release of an OMVWI arrestee within twelve hours if his BAC still exceeds .05 percent comes from an unpublished decision of the Wisconsin Court of Appeals,

City of Madison v. Zwettler

, No. 78-490 (dec'd May 23, 1979). I have enclosed a copy of that decision with this opinion.

76 Op. Att'y Gen. 95, 98 (1987)

Zwettler had been arrested at 3:31 a.m. for operating a motor vehicle while intoxicated. She was held in jail until making her initial court appearance at approximately 9 a.m., more than five hours after her arrest. The county court dismissed the complaint, finding that sections 345.23¯

and 345.24 required the defendant's release after a four-hour detention period once she had deposited her valid driver's license with the detaining authorities. The circuit court reversed, finding that the statutes require only that the defendant be brought before the court without unreasonable delay after expiration of the four-hour period specified in section 345.24, Stats. (1975), unless sooner released under the "blood-alcohol level" or "responsible adult" provisions of the statute. Slip op. at 1-2.

76 Op. Att'y Gen. 95, 99 (1987)

The court of appeals affirmed the circuit court's order. The court noted that section 345.23 deals with arrests for violations of traffic regulations generally, while section 345.24 establishes a specific procedure for dealing with OMVWI arrestees. The court found that the general provisions of section 345.23(1) and (2) are inconsistent with mandatory detention under section 345.24 and are therefore inapplicable to motorists arrested for driving while intoxicated. However, the court held that section 345.23(3) does not conflict with section 345.24. Construing these statutes together, the court of appeals concluded that, "at the expiration of the mandatory four-hour detention required by section 345.24, the accused must be brought before the court without unreasonable delay." Slip op. at 3-4.

76 Op. Att'y Gen. 95, 99 (1987)

The court in

Zwettler

apparently found that only when the period specified in section 345.24 for holding designated arrestees had expired would section 345.23(3) kick in and require that the person be brought before the court without unreasonable delay if the authorities wished to detain him further. Requiring that the person be brought before a court after the expiration of the twelve-hour period now set by section 345.24 would have the salutary effect of preventing law enforcement authorities from arbitrarily detaining OMVWI arrestees. Although

Zwettler

was decided when the mandatory detention period was four rather than twelve hours, it supports my view that an OMVWI arrestee is not automatically entitled to release once the detention period established by section 345.24 has elapsed.

76 Op. Att'y Gen. 95, 99 (1987)

While

Zwettler

is consistent with my interpretation of section 345.24, I must caution you that, as an unpublished decision of a single court of appeals judge,

Zwettler

is of no precedential value under the rules of appellate procedure.

See

sec. 809.23(3), Stats. However, it does indicate that at least one member of the court of appeals views section 345.24 as I do.

76 Op. Att'y Gen. 95, 99 (1987)

As a final matter, I note that my construction of section 345.24 is consistent with avoiding liability for failing to retain custody of intoxicated motorists.

See

Annot., 48 A.L.R. 4th 320 (1986), Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer.

76 Op. Att'y Gen. 95, 99 (1987)

DJH