Schimel unveils plan to ease backlog for OWI offenses

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WAUKESHA (WITI) -- Waukesha District Attorney and Attorney General candidate Brad Schimel has unveiled a plan to address the backlog of blood samples tested for Operating While Intoxicated (OWI) offenses, which forces prosecutors to delay processing some cases for nearly a year.

Schimel said his proposal would shift responsibility for testing blood samples for first offense and misdemeanor OWI offenses from the Wisconsin State Laboratory of Hygiene to the Wisconsin Department of Justice and the State Crime Laboratory.

In 2003, the turnaround time for drug testing by the Hygiene Lab was 64 days.  By 2011, that delay had increased to 245 days, and by 2012 the delay was nearly one year.

The delays in testing force prosecutors to wait for up to a year before a drugged driving case may be resolved in court.

“The greatest problem facing prosecutors who handle these cases is the tremendous delay between the time that a blood test is taken from a suspect and prosecutors receive test results from the Hygiene Lab.” District Attorney Schimel said. “Until we have the test results, these cases can't be processed by our courts.  In the meantime, these drivers remain on the road without any supervision, punishment or mandated treatment.  My plan will address these delays by rightly placing the responsibility with the DOJ, which will give prosecutors the tools to do their job and reduce the number of impaired drivers on Wisconsin roads.”

Schimel added the volume of cases submitted to the UW Hygiene Lab has increased exponentially, particularly with the greater incidence of drugged driving cases. In less than ten years, the number of tests in suspected drugged driving cases has more than doubled.

Schimel has commended Attorney General JB Van Hollen for recognizing the problem and taking over responsibility for testing felony drunk driving cases without any additional funding for the Department of Justice’s crime labs.

Attorney General Van Hollen’s efforts sped up testing on the most serious cases, but despite these changes the backlog at the Hygiene Lab continued to get worse.

In 2012, the Hygiene Lab sought and obtained additional funding to outsource a substantial number of cases to a laboratory in Pennsylvania, which helped the backlog but didn't cure the problem.

Today, prosecutors and judges agree that the delay is still too long, and the experts that are necessary to support test results in court are too often unavailable.

District Attorney Schimel proposes the following measures to address the backlog:

  • First, transfer the forensic responsibilities of the UW Hygiene Lab to the Wisconsin State Crime Laboratory. The UW Hygiene Lab is a department of the University of Wisconsin System and fulfills a wide range of public health and educational responsibilities.  By contrast, the State Crime Laboratory's primary function is to perform forensic scientific analysis for law enforcement.  With three laboratories across Wisconsin, the State Crime Lab has proved that they can deliver prompt turnaround in a wide range of cases, including OWI blood testing. Where it took the Hygiene Lab 245 days, and in some cases a year, to provide these results, the Crime Lab has been able to do this same toxicology in 45 days. While it is true that the Hygiene Lab currently sees a much higher volume of samples to be tested than the Crime Lab, it is time to put this work in the hands of a laboratory with a culture of forensic science, not educational science.
  • Second, pursue smart legislation that aids the detection and elimination of drunk and drugged drivers from our highways that doesn't further impact the costs and complexity of our current system. The United States Supreme Court has recently handed down decisions, which significantly impact this issue.  Missouri v. McNeely mandated search warrants when a defendant refuses to blow into an Intoximeter or submit a blood sample. Wisconsin should study potential new legislation that would increase the penalties for refusing to submit to a chemical test following drunk or drugged driving, so that the penalty for refusing is equal to or greater than what a driver who cooperates with police might have faced. This would strengthen our implied consent laws, eliminate the need for blood tests in these circumstances, and free valuable lab, court and prosecutor time.
  • Third, it’s difficult to understand why it takes months to obtain forensic results when a physician can learn the same information for a patient within a day.  The answer lies in the fact that Wisconsin law requires forensic testing to be done on whole blood, while hospitals remove the blood solids.  Prosecutors and judges will tell you that with the right testimony, hospital test results can be admitted as easily as forensic tests. It can be argued that a test result good enough for life and death health decision should be good enough for our courts.  Wisconsin ought to consider changing the law to provide for medical type testing.
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