Black people are seven times more likely to be wrongfully convicted of a serious offense, including murder, than white people, according to a report released Tuesday by the National Registry of Exonerations.

​In addition, Black people fall victim to police misconduct at a greater rate and experience longer prison times before exoneration, the report found.

https://www.law.umich.edu/.../Race%20Report%20Preview.pdf

This July, the Wisconsin Supreme Court held that recordings against the defendant was constitutional because the defendant’s cellmate had not acted as a government agent in making the recordings.  State v. Arrington, 2022 WI 53 (July 1, 2022), https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=540596  If the facts of this case accurately reflected that holding, I would have no complaint.  Unfortunately, the court choose to omit a glaring fact in its decision.
 
The prosecution’s critical evidence to refute the defendant’s self defense claim to the homicide charge several recordings made by Miller, the defendant’s jail cellmate.  Miller testified that Arrington hold him that when he saw the first person, all he could think about was the stabbing and “just got to shooting.” Miller also testified that Arrington said that one of his bullets hit the decedent because the first person jumped out of the way when he began shooting.
 
The Arrington court began with a truism: that federal courts interpreting U.S. Supreme Court case law have concluded that the admission of jailhouse statements to informants violate a defendant’s Sixth Amendment right to counsel only where 1) the statements were deliberately elicited by the information and 2) were made to a government agent.
 
Miller had not been acting as a government agent because he had no agreement with the government to record Arrington. The court  based that conclusion on the following:

• Miller unilaterally approached detectives about recording Arrington;
• Detectives told Miller that he could record Arrington if he wanted to, rather than directing him to do so;
• The detectives didn’t pay Miller or promise him payment if he recorded Arrington; and
• A previous agreement between the detectives and Miller to record another inmate had nothing to do with Arrington;

“Here, the detectives did not direct or control Miller’s questioning of Arrington….Furthermore, when Miller did choose to record, he was in control of what was recorded … The detectives could not listen into the conversations in real-time. They did not control Miller’s recording or questioning.”
 
However, there was one fact not taken into account by the court in this reasoning.  As stated by the court itself, the recording device Miller used was supplied by law enforcement.  When law enforcement furnishes the very means to record evidence, it is beyond incredible to say law enforcement did not control the recording.  Control the means to make the recording is controlling the recording.
 
Quite simply, the court should have recognized that without law enforcement involvement the recording could not have been made.  They controlled whether the recording could be made at all.  In so doing, law enforcement was involved in obtaining the statement.  By disregarding this fact, the court has invited the police to subvert a defendant’s Sixth Amendment rights by furnishing the tool to end run constitutional requirements.  See, The Bad-Apple Myth of Policing: Violence perpetrated by cops doesn’t simply boil down to individual bad actors—it’s also a systemic, judicial failing,  https://www.theatlantic.com/politics/archive/2019/08/how-courts-judge-police-use-force/594832/

Poster advertising a special issue of a Nazi newspaper about “race defilement” and the Nuremberg Laws,” US Holocaust Memorial Museum.

The book Skeleton of Justice, https://www.goodreads.com/book/show/3767951-skeleton-of-justice was written in 1941 by Roper and Leiser.  Edith Roper was one of the few correspondents to enter a Nazi courtroom so she had a clear insight what was happening in the courts.  As we know today, Nazi courts were a sham as nothing more than a political weapon against Nazi opponents.  Skeleton of Justice makes it clear that the criminal system is not immune from becoming a servant of political forces.
​
Nazi statutes were full of legal rules for oppression.  This was a part of Reichsgesetzblatt, ("RGBI") the official edition of statutes.  For instance, the notorious anti-semitic laws in the administration of Nazi justice, Roper and Leiser, p. 134 ff., 141 ff, was the so-called "Law for the protection of German blood and honor" of Sept. 15, 1935.  RGB1 1935 I 1146, deserves a prominent place.  This law created the new criminal offense of race defilement" (Rassenschande). It prohibited all marriages between Jews and Aryans under penalty of imprisonment with hard labor up to fifteen years. The same penalty was provided for extramarital sexual intercourse between members of these two racial groups. Jews were not permitted to employ Aryan female domestic help under 45 years of age, this offense being punishable with imprisonment up to one year and with fines. The same law also punished German Jews for showing the Swastika flag, probably an infrequent offense. Another decree of the same day deprived all German Jews of German citizenship.  RGB1 1935 I 1146.  The connection between the two decrees is obvious; both were manifestations of racial persecution in the field of law.

In his concurring opinion in Dobbs v. Jackson Women’s Health, Justice Clarence Thomas attacked substantive due process, a legal idea that says certain rights can and should be protected by courts, even if not specifically enumerated in the Constitution. The idea of substantive due process allowed abortion to remain protected for nearly 50 years despite not being mentioned in the Constitution or explicitly legalized in a federal statute.  “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion, later saying that “we have a duty to ‘correct the error’ established in those precedents.”  These cases, like Roe, cases represent fundamental parts of American life that many take for granted. Griswold v. Connecticut established that adults have the right to use contraceptives, Lawrence v. Texas established that it is illegal to punish people for homosexual activity, and Obergefell v. Hodges legalized same-sex marriage on a national level. 

Unmentioned by Thomas was Loving v Virginia which found that substantive due process protected the right of different races to marry.  Thomas’ decision to exclude a case that directly benefits him (Thomas is married to Ginni Thomas, a white woman) demonstrates Thomas is not really concerned about legal process but more in obtaining results that advance his reactionary agenda of original interpretation of the Constituion.

As pointed out by Whoopi Goldberg on the TV show The View: “You better hope that they don't come for you, Clarence, and say you should not be married to your wife, who happens to be white, because they will move back…..And you better hope that nobody says, you know, well, you're not in the Constitution. You're back to being a quarter of a person."

And Jesus said to him, “Foxes have holes, and birds of the air have nests, but the Son of Man has nowhere to lay his head.”  Luke 9:58

First the numbers:

1. Total homeless in Wisconsin count in 2020: 4,515.  That is about 8 per 10,000 people
2. In January 2020, there were 580,466 people experiencing homelessness in America. Most were individuals (70 percent). They lived in every state and territory, and they reflected the diversity of our country.
3. People in families with children make up 30 percent of the homeless population. Unaccompanied youth (under age 25) account for six percent of the larger group.
4. Males are far more likely to experience homelessness than their female counterparts. Out of every 10,000 males, 22 are homeless. For women and girls, that number is 13. Gender disparities are even more evident when the focus is solely on individual adults (the most significant subgroup within homelessness). The overwhelming majority (70 percent) are men.

The reality:
The causes of being homeless are varied. In recent years, some people who were affected by the economic downturn and foreclosure crisis have become homeless.[1]  Some communities make it a crime to be homeless.  Many communities have laws that criminalize activities homeless people need to do in public to survive including:

• Sitting or lying down
• Loitering[2] or loafing
• Eating or sharing food
• Asking for money or panhandling
• Sleeping in cars and outside or camping[3]

 
Today, all too often society’s response to the conditions above is to deploy the criminal system to convict or make life hell for the homeless.  For example, the City of Santa Ana, California developed what the California Supreme Court described as a “four-year effort … to expel homeless persons” and “to show ‘vagrants’ that they were not welcome.” Tobe v. City of Santa Ana, 892 P.2d 1145, 1151 (Cal. 1995). As a part of what the trial court described as Santa Ana’s “war on the homeless,” police conducted sweeps in which homeless persons “were handcuffed and taken to an athletic field where they were booked, chained to benches, marked with numbers, and held for up to six hours, after which they were released at a different location.” Id. Some of the conduct leading to the arrests “involved nothing more than dropping a match, leaf, or piece of paper, or jaywalking.” Id.
 
It is unconstitutional to make the status of homelessness into a crime.  The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667-68 (1977). Pursuant to that clause, the Supreme Court has held that laws that criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Court considered a state statute criminalizing not only the possession or use of narcotics, but also addiction. Noting that the statute made an addicted person “continuously guilty of this offense, whether or not he had ever used or possessed any narcotics within the State”—and further that addiction is a status “which may be contracted innocently or involuntarily,” given that “a person may even be a narcotics addict from the moment of his birth”—the Court found that the statute impermissibly criminalized the status of addiction and constituted cruel and unusual punishment. Id. at 666-67 & n.9.
 
Six years after Robinson, the Court addressed whether certain acts also may not be subject to punishment under the Eighth Amendment if they are unavoidable consequences of one’s status. In Powell v. Texas, 392 U.S. 514 (1968), the Court considered the constitutionality of a statute that criminalized public intoxication. A four-member plurality interpreted Robinson to prohibit only the criminalization of status and noted that the statute under consideration in Powell criminalized conduct—being intoxicated in public—rather than the status of alcohol addiction. The plurality declined to extend Robinson, citing concerns about federalism and a reluctance to create a “constitutional doctrine of criminal responsibility.” Id. at 534 (plurality opinion). Moreover, the plurality found that there was insufficient evidence to definitively say Mr. Powell was incapable of avoiding public intoxication. Id. at 521-25. The dissenting justices, on the other hand, found that the Eighth Amendment protects against criminalization of conduct that individuals are powerless to avoid, and that due to his alcoholism, Mr. Powell was powerless to avoid public drunkenness. Id. at 567 (dissenting opinion). The dissenters, therefore, would have reversed Mr. Powell’s conviction. Id. at 569-70.
 
Justice White provided the decisive fifth vote to uphold Mr. Powell’s conviction. Instead of joining the plurality opinion, in a separate concurrence he set forth a different interpretation of Robinson. Justice White did not rest his decision on the status-versus-conduct distinction raised by the plurality. Instead, Justice White considered the voluntariness, or volitional nature, of the conduct in question. See Powell, 392 U.S. at 548-51 (White, J., concurring in the judgment). Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment. Id. at 551.
 
Therefore, if one is involuntarily made homeless, and the state seeks to prosecute you, you may have a defense.  People v. Gonzalez, 7 Cal.App.5th 370 (2017) (cannot revoke probation due to homelessness); Justin v. City of Los Angeles, No. CV-00-12352 LGB (AIJx) (C.D. Cal. Dec. 5, 2000).  If a defendant presents evidence that defendant slept in a public place because his alternatives were inadequate and economic forces were primarily to blame for his predicament, he may present a defense of necessity.  In re Eichorn, 81 Cal. Rptr. 2d 535, 540 (Ct. App. 1998) (permitting a homeless man, arrested for sleeping in a public location, to raise the necessity defense); Johnson v. Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995) (ordinance violated the Eighth Amendment in that at any given time there are persons in Dallas who have no place to go, who could not find shelter even if they wanted to - and many of them do want to - and who would be turned away from shelter for a variety of reasons.).  See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law 5.4(a) (1986) (explaining that "one who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by "necessity' in doing as he did and so not be guilty of the crime in question"); Michael M. Burns, Fearing the Mirror: Responding to Beggars in a "Kinder and Gentler" America, 19 Hastings Const. L.Q. 783, 809 (1992) (discussing the application of five common law elements of the necessity defense to the crime of begging); Robert C. McConkey III, "Camping Ordinances" and the Homeless: Constitutional and Moral Issues Raised by Ordinances Prohibiting Sleeping in Public Areas, 26 Cumb. L. Rev. 633, 658-59 (1995-1996) (discussing potential factors that courts could utilize in determining the application of the necessity defense); Donald E. Baker, Comment, "Anti-Homeless" Legislation: Unconstitutional Efforts to Punish the Homeless, 45 U. Miami L. Rev. 417, 452-53 (1991) (applying a hypothetical example of a homeless woman arrested for sleeping on the street to the four traditional elements of the necessity defense. But see David M. Smith, Note, A Theoretical and Legal Challenge to Homeless Criminalization as Public Policy, 12 Yale L. & Pol'y Rev. 487, 508 (1994) (advocating for the application of the defense of duress to anti-homeless ordinances over the defense of necessity).  See also Davidson v. Tucson, 924 F. Supp. 989, 993 (D. Ariz. 1996) (discussing the plaintiffs' claim that the anti-camping ordinance violated their right to travel, a fundamental constitutional right); Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.D. Fla. 1992) (noting that members of the class of plaintiffs could not raise the defenses of necessity or duress to contest an ordinance that criminalized sleeping and eating in public places because authorities released the arrested plaintiffs from custody without being charged)
 
The court did not analyze why Eichorn was denied public assistance, why he was not working at the time he was cited, or why he did not contact relatives or travel to another location, each of which may have been used to determine whether he was involuntarily homeless.  The court made clear that once Eichorn proved the basic elements of the necessity defense, he could evoke such defense without inquiry into the causes of his homelessness. Thus, if a defendant shows that: (1) the shelter was full, (2) there were more homeless people in the area than shelter space, and (3) he or she did not have funds to afford housing or a motel room, then any alternative to sleeping in public, such as staying awake and moving around, will be inadequate to rebut application of the defense.
 
The Bible says to help those who are homeless, not prosecute them. In Leviticus 25:35 God commands His people to help support those who have no home and cannot support themselves: “If any of your fellow Israelites become poor and are unable to support themselves among you, help them as you would a foreigner and stranger, so they can continue to live among you” (see also Deuteronomy 15:7–11). The Lord rebuked those who kept the outward form of religion yet did not care for the poor: “Is not this the kind of fasting I have chosen: . . . to share your food with the hungry and to provide the poor wanderer with shelter—when you see the naked, to clothe them, and not to turn away from your own flesh and blood?” (Isaiah 58:6–7).


[1] U.S. Dep’t of Hous. and Urban Dev., 2014 Annual Homeless Assessment Report (“2014 AHAR”) 1 (October 2014), available at https://www.hudexchange.info/resources/documents/2014-AHAR-Part1.pdf. The 2014 AHAR found that as of January 2014, 578,424 individuals in the United States were homeless on any given night

[2] Loitering statutes are constitutionally suspect.  City of Chicago v. Morales, 527 U.S. 41, 53-55 (1999) ([T]he freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.); United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff’d on other grounds sub nom. Lefkowitz v. Newsome, 420 U.S. 283 (1975).

[3] https://invisiblepeople.tv/category/learn-more/criminalization-of-homelessness/

Woman is the nigger of the world
Yes she is, think about it
Woman is the nigger of the world
Think about it, do something about it
….
Ah yeah, better scream about it
We make her bear and raise our children
And then we leave her flat for being a fat old mother hen
We tell her home is the only place she should be
Then we complain that she's too unworldly to be our friend
Woman is the nigger of the world, yes she is
Woman is nigger to the world, Some Time in New York City, John Lennon/Yoko Ono
 

In Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022), the U.S. Supreme Court held that the Constitution of the United States does not confer any right to abortion, and overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).  Clearly, the Supreme Court is demonstrating a trend of hostility to women’s rights as it has demonstrated hostility to racial rights.
 
The Dobbs hostility to women is not something new to the American scene.  Indeed, the Declaration Of Independence states, "All men are created equal." As to females, Thomas Jefferson said: "Were our state a pure democracy, there would still be excluded from our deliberations. . . women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men."  Quoted in M. GRUBERG, WOMEN IN AMERICAN POLITICS 4 (1968), https://www.amazon.com/Women-American-Politics-Assessment-Sourcebook/dp/091188002X
 
Hostility to woman’s rights by the Supreme Court was clear in the case of Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875), where the the United States Supreme Court held that, while women are no less citizens than men are, citizenship does not confer a right to vote, and therefore state laws barring women from voting are constitutionally valid. The Supreme Court upheld state court decisions in Missouri, which had refused to register a woman as a lawful voter because that state's laws allowed only men to vote.  The Minor court based its decision on an interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment. The Supreme Court readily accepted that Minor was a citizen of the United States, but it held that the constitutionally protected privileges of citizenship did not include the right to vote.  

It took the Nineteenth Amendment, which became a part of the Constitution in 1920, to effectively overrule Minor v. Happersett by prohibiting discrimination in voting rights based on sex.  Professors Calabresi and Rickert provide an interesting history of the Nineteenth Amendment:

The legislative history of the Nineteenth Amendment reveals important things about its original public meaning in 1920: supporters of the Nineteenth Amendment believed and said that it would make women equal to men under the law. The Nineteenth Amendment was seen by both those who supported it and by those who opposed it as being nothing less than the final step in a process begun by the Reconstruction Amendments. The opponents‘ objection to giving women the right to vote was that they were unfit for work outside of the home and that they were unable to serve in the military or on juries because of the damage this would cause to family life. This objection was soundly rejected.  Calabresi and Rickert, Originalism and Sex Discrimination, 90 Texas Law Review 1, 86 (2011).

In support of the Nineteenth Amendment, Congressman Edward C. Little of Kansas declared that ―”[i]f common sense is more potent than the sword . . . woman should now be accorded the same opportunity to take part in life that men have always had.” Id at 87.
 
It must be understood that the Nineteenth Amendment “was understood to be a continuation of the constitutional reform that began with the Reconstruction Amendments.”  Id at 87-88.  Senator Robert L. Owen of Oklahoma specifically explained that the Nineteenth Amendment was justified and appropriate for the same reasons that the Fourteenth and Fifteenth Amendments were needed: like in the case of enfranchising the negro race, the same principle in amending the Constitution with regard to the white women of this country.  Id. at 88, citing 56 CONG. REC. 8343, 8349 (1918).  Congressman Little tied the struggle for women‘s rights to the struggle against race discrimination:
 
The long and short of the whole matter is that for centuries you have treated woman as a slave, dragged her over the pages of history by the hair, and then you pretend to think she is an angel, too good to interfere in the affairs of men. Give her now a fixed, reasonable status, as becomes a rational human being like yourself.  Id., at 89.

In response, Congressman Clark sought to play the racial AND sex fear card to block the enactment of the Nineteenth Amendment by saying:

Make this amendment a part of the Federal Constitution and the negro women of the Southern States, under the tutelage of the fast growing socialistic element of our common country, will become fanatical on the subject of voting and will reawaken in the negro men an intense and not easily quenched desire to again become a political factor.  Id. at 90

Senator Brandegee expressed the same sentiment when he quoted approvingly from a letter written to him by Charles S. Fairchild, president of the American Constitutional League: ―”[U]pon ratification, [the Nineteenth Amendment] would immediately renew the ‗reconstruction‘ and racial problems in the South, as well as double the Socialist and Bolshevist menace in  the North.”  Along the same lines, Senator John S. Williams of Mississippi  asked in horror, ―”Are you going to arm all the Chinese and Japanese and  negro women who come to the United States with the suffrage?”  Id.

The connection between the Nineteenth Amendment and the Reconstruction Amendments was recognized in Adkins v. Children‘s Hospital, 261 U.S. 525, 539 (1923), overruled W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 386–87 400 (1937). 
 
As a Professor, Justice Ruth Bader Ginsburg recognized the problem this hostility towards women presents to the law:

The High Court has not yet perceived the full dimension of current controversy surrounding gender-based discrimination. . . . Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s social, political, and economic life? This is a constitutional issue, Professor Karst underscored, surely one of the most important in this final quarter of the twentieth century.  Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4 Women’s Rts. L. Rep. 143, 143–44 (1978)

Professor Ginsburg was concerned about the Court’s failure to recognize that there was textual authority for the movement’s constitutional claims—the Court’s failure to base its decisions about contraception and abortion on the Equal Protection Clause. But she was also concerned about the Court’s grasp of the social concerns at stake in the regulation of contraception and abortion, the Court’s inability to appreciate that laws criminalizing contraception and abortion define “the roles women are to play in society.”  Id.  Further, Professor Ginsburg explained this inability of the Supreme Court to understand all these issues in the proper context of sexual equality:
 
Precedent to date generally places explicit gender based differentials, illegitimacy, pregnancy, and abortion in separate cubbyholes. Roe v. Wade and Doe v. Bolton, the 1973 abortion decisions, for example, barely mention women’s rights. They are not tied to equal protection or equal rights theory. Rather, the Supreme Court anchored stringent review to concepts of personal privacy or autonomy derived from the due process guarantee. Prof. Laurence Tribe pointed out that nothing in the Supreme Court analysis in Roe v. Wade and Doe v. Bolton turned on the sex specific impact of abortion restrictions. A broader frame for these decisions might have made it more difficult for the Court to rule, as it did stunningly in June 1977, that neither the Constitution nor federal statute requires medicaid reimbursement for elective abortions. Id.  See also, Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 Tul. L. Rev. 451, 462 (1978) (abortion, pregnancy, out-of-wedlock birth, and explicit gender-based differentials are part and parcel of a single, large, sex equality issue).

The issue could not have been clearer than at Professor Ginsburg’s confirmation hearing when she said when questioned by Senator Hank Brown on whether the equality reasoning extended to abortion:

[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it’s both. This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when Government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.  THE SUPREME COURT; Excerpts from Senate Hearing on the Ginsburg Nomination, N.Y. Times, July 22, 1993, at A20

In 1986, Justice Blackmun concluded Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986), overruled by Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992) by rejecting legislation seeking to narrow the abortion right, writing:

Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision—with the guidance of her physician and within the limits specified in Roe—whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.

 

​Once stopped can police order passengers out of the car and pat them down?
Yes.   An officer making a traffic stop may order passengers out of car pending completion of the routine traffic stop.  Maryland v. Wilson, 519 U.S. 408, 413-15(1997).  Once ordered out, driver and passengers can be patted down (and under certain circumstances, cops can draw weapons, handcuff and order them to lie on the ground without stop becoming an arrest!) Pennsylvania v. Mimms, 434 U.S. 106, 111-12(1977); Houston v. Clark County Sheriff Deputy John Does, 174 F.3d 809, 814-15 (6th Cir. 199); Rohde v. City of Roseburg, 137 F.3d 1142, 1144(9th Cir. 1998); U.S. v. Tilmon, 19 F.3d 1221, 1227-28(7th Cir.1994).  Under certain circumstances, a passenger can be questioned.  State v. Donavan W. Malone, 2004 WI 108.  Compare, United States v. Gregory, 302 F.3d 805, 809 (8th Cir. 2002) ("The Fourth Amendment grants an officer conducting a routine traffic stop latitude to check the driver's identification and vehicle registration, ask the driver to step out of his vehicle and over to the patrol car, inquire into the driver's destination and purpose for the trip, and `undertake similar questioning of the vehicle's occupants to verify the information provided by the driver'")
 
Can police ask a passenger in a car to do a breath test?
Yes, but the passenger should refuse the request.  Police will often ask passengers to take a breath test even though they know none of the passengers were driving.  DUI/OWI laws only apply to the person who is driving, and if you were not in control of the vehicle then police should not even ask you for a breath test. If they do, and you have not been arrested for DUI, you have the right to refuse.
 
Requesting a breath test of a passenger allows police to look for other infractions and misdemeanors to charge a passenger. If you take the test and it reveals you were drinking, police could charge you with:
·1.    Underage drinking (if under 21).  If you are under 21. Anyone under the legal drinking age is required to submit to a breath test if suspected of any alcohol-related offense, which includes underage drinking as well as DUI.
·2,    Public intoxication in some cases.  If you are really drunk, the officer could arrest you for being drunk in public.  While no crime exists for public intoxication, the police can pick you up and take you into custody for the things you do while you’re drunk in public using the disorderly conduct statute. Or the police can hold on to you until they can transfer you to a treatment facility (either for medical treatment or rehabilitation). The state an also commit you to emergency treatment if you’ve threatened harm to yourself or others, or if you’re too incapacitated to enter voluntary treatment.  Some municipalities have ordinances that relate to public intoxication.
3.  DUI, if they claim that you had control of the vehicle  

Passengers are requested to do a breath test in one of three circumstances:

• Police aren’t sure who was really driving
• Your friend was driving, but you are the owner of the vehicle
• Police have some reason to suspect that you were driving and “switched seats” with the other person.

 
In the context of a DUI arrest, you could be considered a “driver” even if you simply had your hand on the wheel. If you briefly steadied the wheel for the driver or took control of the vehicle in any way, and you are intoxicated, you could be arrested for DUI.

Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood, or urine” to determine the presence of drugs or alcohol.  So long as a passenger is not or was not touching the steering wheel the passenger is not operating the vehicle to give implied consent.  Under Wisconsin law, “operate” "means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”
Also, in State v. Prado, 2021 WI 64 (June 18, 2021), the Wisconsin Supreme Court majority ruled that Wisconsin’s implied consent law, as applied to incapacitated drivers, is “unconstitutional beyond a reasonable doubt”.


Is it illegal to ride with a drunk driver?
No. There is nothing in Wisconsin’s statutes that makes it illegal to be a passenger in a vehicle with a drunk driver, although it is unsafe. But that doesn’t mean officers will look kindly on you if caught in this situation. If you are also intoxicated, they may seek some other grounds on which to issue you a citation. If you are sober, they may ask why you didn’t volunteer to drive, given that your friend is intoxicated. In many cases these questions are designed to trick you into incriminating the driver. Remember that you can politely decline to answer questions.

How often have you been driving on a Wisconsin road and seen the sign on the back of dump truck which states, “NOT RESPONSIBLE IF YOU ARE CLOSER THAN 500 FEET”?   Ever wonder if that sign is legal and enforceable?

About as enforceable as the a sign posted on Lake Michigan that no waves allowed on shore.
Wisconsin Statute 348.10 (2) states:
No person shall operate a vehicle on a highway unless such vehicle is so constructed and loaded as to prevent its contents from dropping, sifting, leaking or otherwise escaping therefrom.
Additionally in (5) of that statute, it states that loads shall be “distributed in a manner that will prevent side sway under all conditions of operation.” 

The Dept of Transportation advises this means that a load in a vehicle or trailer must be:
Tie it down with rope, netting, or straps
Tie large objects directly to your vehicle or trailer
Cover the entire load with a sturdy tarp or netting
Don't overload the vehicle or trailer
Always double-check your load to make sure it's secure. 
​Secure your load, https://wisconsindot.gov/Pages/safety/education/SecureYourLoad.aspx
 
At least under that statute you could get up to a $200.00 forfeiture.  It can be argued by law enforcement that failure to follow this statute resulting in great property damage, bodily harm or death is criminally reckless or negligent conduct and seek to impose incarceration and a fine.

Nearly 40% of police agencies in the U.S. did not successfully submit any data in 2021 to the FBI’s revised crime statistics collection program. It’s a large jump from past years. Police departments in New York City and Los Angeles did not submit data. Most law enforcement agencies in five of the six largest states didn’t, either. “The data gap will make it harder to analyze crime trends and fact-check claims politicians make about crime.”  What Can FBI Data Say About Crime in 2021? It’s Too Unreliable to Tell, https://www.themarshallproject.org/2022/06/14/what-did-fbi-data-say-about-crime-in-2021-it-s-too-unreliable-to-tell?utm_medium=email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=newsletter-20220614-2872 

​That means those in power can say whatever they want about crime because there is no independent verification of their statements.  See, Crime and Its Consequences, Chap. 2, https://slideplayer.com/slide/12781637/; Times Investigation: LAPD misclassified nearly 1,200 violent crimes as minor offenses, https://www.latimes.com/local/la-me-crimestats-lapd-20140810-story.html#page=1  Crime rates reported by police are dependent on what crimes the police even know about. Those are going to disproportionately be crimes against older, richer, whiter citizens who are more likely to call the police.  Times Investigation: LAPD misclassified nearly 1,200 violent crimes as minor offenses, id.
 
In 2022, the FBI Quarterly Uniform Crime Report for the nation is based on data received from 10,578 of 18,769 law enforcement agencies in the country that year.  FBI Crime Data Explorer, https://crime-data-explorer.fr.cloud.gov/pages/explorer/crime/quarterly
 
The FBI, is working to improve the way the nation collects, analyzes, and uses crime statistics about law enforcement’s use of force. The collection and reporting of use-of-force data will include any use of force that results in the death or serious bodily injury of a person, as well as when a law enforcement officer discharges a firearm at or in the direction of a person.  Uniform Crime Reporting Program, https://www.fbi.gov/services/cjis/ucr/
 
With the National Use-of-Force Data Collection, data users can view use-of-force incidents involving law enforcement from a nationwide perspective. The goal of the resulting statistics is not to offer insight into single use-of-force incidents but to provide an aggregate view of the incidents reported and the circumstances, subjects, and officers involved.  Id.

​John Przybyla, 73, of Friendship, Wisconsin, was stopped for a broken tail light and erratic driving on Oct. 12 by a deputy who then smelled alcohol on his breath and saw that is eyes were blood shot.  The deputy asked Przybyla how much he had had to drink. Przybyla replied that he had not been drinking and instead had eaten beer-battered fish at a fish fry, according to police reports.  Przybyla was arrested after he failed a field sobriety test and a breath test showed he had been drinking.  He was charged with drunk driving 10th.  He eventually was convicted and sent to prison.  Man who blamed fish fry for DUI sent to prison https://www.tmj4.com/news/local-news/man-who-blamed-beer-battered-fish-fry-for-dui-sent-to-prison
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Does Mr. Przybyla’s claim to law enforcement have any merit?  Incredible as it may seem, possibly.  He would need to be tested for gut fermentation syndrome or auto-brewery syndrome.  The underlying mechanism is thought to be an overgrowth of yeast in the gut whereby the yeast ferments carbohydrates into ethanol.  According to gastroenterologist Dr. Justin McCarthy a person can experience a set of circumstances that allows alcohol to be fermented within his/her own stomach and intestines.  Scott, Medical Oddities Part 2: You can brew beer in your digestive tract, Today I Found Out, http://www.todayifoundout.com/index.php/2013/10/can-brew-beer-stomach/   In all of the known cases, some type of yeast (Saccharomyces cerecisiae, or brewer’s yeast) ferments the sugars coming from carbohydrates or any sugary foods into ethanol (ethyl alcohol). Should enough ethanol be produced, you get drunk.  Id.
 
Brewer’s yeast is found in many different types of foods like breads, wine, and beer.  Brewer’s yeast is also sold as a nutritional supplement due its high levels of selenium, protein, and B-complex vitamins.  Unlike other types of baking yeasts, it’s high in chromium, an essential mineral that helps with maintaining our blood sugar levels.  Excessive brewer’s yeast in your intestine can occur due to surgery as well.  Sometimes after surgery, patients are given antibiotics to control their infection.  Unfortunately, as a consequence of these antibiotics, some of the bacteria in the patient’s digestive tract are killed off. The resulting loss allows a growth of brewer’s yeast to take hold in the patient’s gut.  See, Cordell and McCarthy, A Case Study of Gut Fermentation Syndrome (Auto-Brewery) with Saccharomyces cerevisiae as the Causative Organism, International Journal of Clinical Medicine, 309, 310 (2013), http://www.scirp.org/journal/PaperInformation.aspx?PaperID=33912#.VPBc5vnF_ZN.  Have a few sandwiches and you can get drunk!
 
It should be noted, however, that gut fermentation syndrome is mainly attributed to Asian and American Indian peoples.  It's all about enzymes. When the liver processes ethanol, the enzyme alcohol dehydrogenase first converts it to acetaldehyde. In most people a second enzyme, aldehyde dehydrogenase (ALDH), quickly converts the acetaldehyde to harmless acetate. But roughly 50 percent of Japanese and other East Asians and some American Indians (but practically no Europeans or Africans) have a mutated gene that impairs ALDH activity. Due to the fact they have no ALDH, when they consume alcohol, or their bodies produce natural ethanol, it leaves them with a build up of acetaldehyde in their system. That excess causes numerous unwanted symptoms and can also produce more ethanol, thereby giving them a higher BAC than would normally be.
 
There is a proposed clinical test for gut fermentation syndrome.  A patient is given a fasting glucose challenge of 5 Gm glucose orally. One gram of glucose is given in a hardened gelatin capsule to ensure passage into the duodenum. Blood glucose levels and blood ethanol levels were measured at 1 hour. Fasting blood alcohol levels were zero in nearly all subjects but 61% of the 510 subjects showed an increase in blood alcohol levels on the average of 2.5 mg/dl (range 1.0 - 7.0 mg/dl). This compared to near zero blood alcohol levels in the control group given the same challenge. The phenomenon of gut fermentation was summarized with the above proposed diagnostic method.  K. Eaton, “Gut Fermentation: A Reappraisal of an Old Clinical Condition with Diagnostic Tests and Management: Discussion Paper,” Journal of the Royal Society of Medicine, Vol. 84, No. 11, 1991, pp. 669-671.
 
In the prosecution of OWI/DUI cases, the concentration of ethanol in blood, breath or urine because of drinking alcohol constitutes important evidence for prosecuting drunk drivers.  But what if the reliability of the results of forensic alcohol analysis are often challenged by body brewing its own alcohol?. One such argument for acquittal concerns the notion that alcohol could be produced not by drinking alcohol but because the person had eaten food and was suffering from auto-brewery syndrome.
 
CONTACT ATTORNEY PAUL KSICINSKI AT 414-530-5214 ON A POSSIBLE DEFENSE TO YOUR OWI/DUI CASE