The Wisconsin Court of Appeals has affirmed a lower court's decision to dismiss a charge against Michael R. Rossow for operating a motor vehicle with a prohibited alcohol concentration (PAC) of more than 0.02. This ruling is significant as it addresses how prior offenses can impact DUI charges and penalties in the state.

The case revolves around Rossow's prior refusal to submit to a warrantless blood draw, which the court ruled could not be counted against him when determining his current DUI charges. This decision may have broader implications for how DUI penalties are assessed in Wisconsin.

Background

The State of Wisconsin was the plaintiff in this case, appealing a decision made by the circuit court for Burnett County. The circuit court had granted Rossow's motion to dismiss Count Five of his criminal complaint, which charged him with operating a vehicle with a PAC of more than 0.02 as a third offense. The case was filed under docket number 2025AP000560-CR.

The dispute arose after Rossow was stopped by police on March 26, 2024, and subsequently arrested on suspicion of operating a vehicle while under the influence of an intoxicant (OWI). After refusing to submit to a blood test, law enforcement obtained a warrant for a blood draw, which showed that Rossow's BAC was above the legal limit. He faced multiple charges, including the PAC charge that was later dismissed.

The Ruling

The court ruled in favor of Rossow, stating that the prior revocation stemming from his refusal to submit to a blood draw could not be counted under Wisconsin Statute § 340.01(46m) to lower his permissible BAC from 0.08 to 0.02. The court referenced the Wisconsin Supreme Court's decision in State v. Forrett, which established that imposing penalties based on a refusal to submit to a warrantless blood draw is unconstitutional.

The court stated, "by operation of WIS. STAT. § 340.01(46m), the State is threatening to impose increased criminal penalties on Rossow for driving with a BAC above 0.02, rather than 0.08, based on his 2011 stand-alone refusal to submit to a warrantless blood draw."

The ruling was made by a three-judge panel consisting of Judges Stark, Hruz, and Gill. They concluded that the state could not impose such a penalty, reinforcing the protections against penalizing individuals for exercising their constitutional rights.

Impact

This ruling has significant implications for how DUI cases are handled in Wisconsin. It clarifies that prior revocations resulting solely from a refusal to submit to a warrantless blood draw cannot be used to enhance penalties for future DUI offenses. This decision aligns with the broader legal principle that individuals should not face criminal penalties for exercising their constitutional rights.

The outcome may affect not only Rossow but also other individuals facing similar charges in Wisconsin. It sets a precedent that could limit the state's ability to impose harsher penalties based on past refusals to submit to chemical tests. This decision may lead to changes in how law enforcement and prosecutors approach DUI cases moving forward.

What's Next

The State of Wisconsin may seek to appeal this decision to the Wisconsin Supreme Court, as the court's ruling is not final. Additionally, there may be related cases pending that could further clarify the legal standards surrounding DUI charges and the use of prior offenses in determining penalties.