A man who was facing his eighth drunken driving offense had his charges dismissed after his attorney successfully argued he wasn’t actually driving when the police officer stopped him.
Michael P. Witt, 66, of Reedsburg faced up to 28 years in prison and fines up to more than $52,000. Instead, his charges of felony driving while intoxicated, driving with a prohibited alcohol content and with a revoked license were dismissed Feb. 14 in Sauk County Circuit Court.
Witt’s attorney, Stephen Eisenberg, argued to the court that his client was not driving a motor vehicle when he was approached by the Reedsburg police officer a few minutes before 7 p.m., July 25.
According to the criminal complaint, the officer had seen Witt go by riding an “electric yellow scooter” before Witt stopped in the lane of traffic along South Preston Street for a full minute. When the officer approached him, Witt said he was startled and that he didn’t realize someone was behind him. He told the officer he had stopped to light a cigarette and was going to purchase more cigarettes before heading home.
Due to previous drunken driving convictions, Witt is not allowed to drive with a blood alcohol content higher than 0.02%. The officer noticed Witt seemed impaired and Witt said he had two beers before going to the store. Witt did not agree to performing field sobriety tests because of an injured foot, but a preliminary breath test found he had a 0.052% blood alcohol content. The officer cited Witt.
But Witt should never have been cited for his actions, his attorney argued, because Witt was not legally driving a motor vehicle. Instead, he was operating a wheelchair that was improperly detailed in the criminal complaint. Under Wisconsin state statute 340.01(35) and 340.01(74), “a mechanically propelled wheelchair is not a ‘motor vehicle’” Eisenberg argued in his motion to dismiss.
He went on to note that it would be “ridiculous and absurd” if a wheelchair were classified as a motor vehicle because state law stipulates that wheelchair users are pedestrians.
The Sauk County District Attorney’s Office argued that because there is no state statute dictating that a wheelchair is exempt from the motor vehicle definition, it should still apply to the vehicle in question. But Witt’s attorney noted that the pedestrian law has specific examples and that Witt should be treated as one.
In the end, Sauk County Circuit Court Judge Michael Screnock agreed with Eisenberg and ordered dismissal of all three charges.
Follow Bridget on Twitter @cookebridget or contact her at 608-745-3513.
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