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Former Wisconsin lawmaker beats breathalyzer refusal charge

Last month, we wrote about the complex and controversial drunk driving case against former Wisconsin Senator Randy Hopper stemming from his arrest last October. Hopper's defense attorney has maintained that his DUI arrest and subsequent charges were politically motivated; most likely in retaliation for his vote to eliminate collective bargaining agreements.

The former senator was eventually acquitted on the drunk driving charge. But at the time of our last post, Hopper was still facing a related charge: refusal to submit to a breathalyzer test.

DUI defendants usually face a separate refusal hearing before their DUI trial begins, but prosecutors in this case agreed to wait until the outcome of the trial was determined. This was fortuitous for Mr. Hopper, because he was found not guilty.

Recently, Hopper was also acquitted of his breathalyzer refusal charge. Based on the outcome of the trial, Hopper's defense attorney was able to successfully argue that there was no probable cause for his arrest. Without probable cause, there should be no obligation for a DUI suspect to submit to a breathalyzer test, he said.

In a court brief, the defense attorney wrote: "There is no way this Court can find, in good conscience, that the above constitutes sufficient evidence to sustain an arrest for drunk driving. To the contrary, this Court is well aware from presiding over countless OWI probable-cause hearings over the years, what probable cause looks like in a drunk driving case. Frankly, Mr. Hopper's case doesn't even come close. This Court needs to see the probable cause issue the same way the jury so astutely saw the charges against Mr. Hopper: all hype and no substance."

These are strong words but they illustrate an important point: it is crucial to hold law enforcement responsible for establishing probable cause. Without this important threshold, individuals can be arrested and ultimately charged outside the protections afforded to them by law.

Source: Journal Sentinel, "Recalled state senator cleared of refusing blood alcohol test," Bruce Vielmetti, April 25, 2012

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