Court: Wisconsin Prosecutors Can’t Alter Drunk Driving Charges Without OK

By | June 15, 2016

Prosecutors can’t change drunken driving charges once they’re filed without a judge’s permission, a state appeals court ruled in upholding a judge’s decision to order a felony charge against a suspected drunken driver.

The case began in 2014 when prosecutors in Oneida County charged Brian Corvino of Madison with fourth-offense felony drunken driving. Under Wisconsin law at the time, a fourth offense was a felony only if it was committed within five years of the third offense. Corvino’s record showed his third offense occurred in 2010, so a fourth-offense felony charge was in order.

Prosecutors downgraded the charge to a misdemeanor as part of a plea deal. Judge Michael Bloom refused to allow the deal, citing provisions in state law that require judges to approve changes to drunken driving charges and then only if the change serves the public interest in deterring people from driving drunk.

Bloom said he couldn’t in good conscience see how reducing the charge would serve that public interest and ordered prosecutors charge Corvino with a felony.

Corvino argued on appeal that only prosecutors hold the power to amend drunken driving charges and Bloom’s decision improperly infringed on their authority.

The 3rd District Court of Appeals upheld Bloom, ruling that the statutes plainly state that a prosecutor must ask a judge for permission to amend drunken driving charges. Prosecutors’ discretion is subject to the Legislature’s acts, the court added.

Bloom properly exercised his discretion in refusing to allow the deal, the court said, noting the judge remarked that the state’s case against Corvino was strong and downgrading the charge would be inconsistent with serving the public interest in deterring drunken driving. The court went on to say that Bloom has the inherent authority to order a felony charge.

Corvino’s attorney didn’t immediately return a voicemail seeking comment.

Gov. Scott Walker signed a bill in April that makes a fourth drunken driving arrest a felony regardless of when it occurs.

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