CBS 58 Investigates: Two suspected OWI deaths, two suspects set free because of police errors

CBS 58 Investigates: Two suspected OWI deaths, two suspects set free because of police errors

MILWAUKEE (CBS 58) -- In the last few months, two OWI suspects got off because of police errors. CBS 58 Investigates looked in to how it happened and how common those mistakes are.

"It was extraordinarily reckless. You had been drinking. And though you’re no longer charged with the alcohol violation, by your own admission you were drinking."

In 2015, police say then 20-year-old Dartavian Watson blew through a stop sign, going more than twice the posted speed limit and slammed in to a building , killing his passenger 25-year-old Robert Johnson.

Watson pleaded guilty to homicide by intoxicated use of a vehicle but in June the Court of Appeals overturned his conviction, because the blood sample which proved Watson was drunk was illegally obtained by Racine Police.

According to court records, police read Watson the “informing the accused” at the scene, telling him if he didn’t give a blood sample, he could lose his license.

But the court ruled that police needed Watson’s consent for a blood draw, because they did not have probable cause to arrest him.

It’s at least the second time this year that an OWI Suspect got off because of police errors

Body camera footage captured the aftermath of a January crash in West Allis which left a 78-year-old woman dead.

On scene, officers repeatedly said they did not have probable cause to suspect the woman who caused the crash was drunk

But officers did field sobriety tests anyway and ended up making an arrest.

The suspect had a blood alcohol concentration three times the legal limit but as CBS 58 Investigates first reported in July, she’s not facing charges because the arrest was illegal.

"I think a lot of people could look at these situations and say a guilty person got off on a technicality. That's not really true. We're not talking about technicalities. We're talking about fundamental constitutional rights," said Andrew Mishlove, an attorney who specializes in OWI cases.

He says there are standards police need to meet every step of the way during an OWI arrest.

First, police need probable cause to pull someone over.

Then reasonable suspicion to believe someone is impaired, like glassy eyes or slurred speech. Then they’re allowed to investigate that. Ask them to get out of the car, ask them to do field sobriety tests

If police get probable cause from those tests, then they can ask for a preliminary breath test. Then they can arrest somebody, and they’re allowed to ask for an official breath or blood sample.

CBS 58 Investigates looked in to how often police make mistakes during this process.

"I would say that in about 80 percent of the cases I review. I see police errors. The question is are those errors serious or are they serious enough to require the case to be dropped and the answer to that is very rarely," said Mishlove.

According to the most recent numbers from the Wisconsin Department of Transportation, in 2015, 25,734 OWI suspects processed in court, 93% of the those suspects found guilty

But could the number of OWI suspects going free increase as body cameras become more common?

"Body cameras and squad car cameras have really changed the way we do business on both sides," Mishlove said.

He says the West Allis case is a perfect example.

"Officers have a conversation, they discuss with each other how they don’t have probable cause but they’re going to take the blood anyway. Without the body camera, that never would’ve been known. And that person would’ve been wrongfully prosecuted," said Mishlove.

Earlier this month, Dartavian Watson took a new plea deal, on a lesser charge. He got time served and was released on extended supervision. In court, he promised to make good use of this second chance.

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