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Court of Appeals
Drunken driving homicide charge overturned due to improper blood draw

RACINE — The conviction of a Racine man involved in a crash that resulted in the death of a passenger was overturned last week.

On Tuesday, the Wisconsin Court of Appeals reversed the homicide by intoxicated use of a vehicle conviction of 22-year-old Dartavian D. Watson after it was determined that the blood sample obtained by law enforcement was taken without proper consent.

“The poking of somebody with a needle and the drawing of blood is definitely an intrusion into somebody’s person,” said attorney Brian Dimmer, whose law office Richards & Dimmer S.C. represented Watson. “The question of whether those are coerced versus with their consent should concern any Wisconsin resident.”

2015 crash

On the evening of Oct. 8, 2015, Watson was traveling on Mound Avenue when the 2006 Chevrolet Impala he was driving failed to stop at the intersection of West Sixth Street and Mound Avenue and crashed into a building, according to a criminal complaint. Witnesses said he was traveling at speeds of between 60 mph and 70 mph.

Aside from Watson, two others were in the vehicle when it crashed. Robert Johnson, a 25-year-old Racine resident, was in the front seat. Johnson was transported via Flight for Life and died two days later from head injuries. The backseat passenger also was injured, but survived

An officer asked Watson to submit to a blood draw and read him an Informing the Accused form, which states: “If you refuse to take any test that this agency requests, your operating privileges will be revoked and you will be subject to other penalties.”

Watson then reportedly consented to a blood draw and was later found to have marijuana in his system and a blood-alcohol level of 0.11 — 0.03 more than the legal limit of 0.08.

Suppression unsuccessful

While in court, Watson’s attorneys — Dimmer and Mark Richards — argued to suppress Watson’s blood results, arguing it was not given under consent.

They were unsuccessful, however, and Racine Circuit Court Judge Mark Nielsen ruled to include Watson’s blood results in the upcoming trial.

“A strategic decision was made after the judge’s decision to resolve the case without trial,” Dimmer said.

Watson accepted a plea deal. In April 2017, Watson agreed to plead guilty to a felony count of homicide by intoxicated use of a vehicle. In exchange, the other charges — felony counts of intoxicated use of a vehicle, great bodily harm, and two counts of first-degree recklessly endangering safety — were dismissed.

On July 6, 2017, Watson was sentenced to five years in prison and five years extended supervision. He’s been in custody since Oct. 12, 2015.

‘Involuntary’ consent

The appeal cites State v. Blackman, a Fond du Lac case in which Adam Blackman was driving on July 22, 2013, when he struck and injured a bicyclist. Blackman did not exhibit any signs of impaired driving, but was asked for a blood test.

Blackman was read the Informing the Accused form, which stated that should he refuse the blood test, his “operating privileges will be revoked.”

The Supreme Court of Wisconsin ruled that because “a driver who was not suspected of a drunk-driving offense would prevail at a refusal hearing and his operating privilege would not be revoked,” Blackman’s consent was coerced into providing a blood sample.

The Court of Appeals ruled that same principle applies to Watson’s case. “In the case before us, the circuit court found that the law enforcement officers did not have any basis to believe that Watson had been operating while intoxicated,” the Court of Appeals decision states. “Nevertheless, the officers twice informed Watson that refusing a chemical test would result in license revocation, a consequence to which Watson was not subject.”

A Racine Police Department official said that the department believes its officers followed policy and procedure while investigating the crash. Now that the Court of Appeals has overturned Watson’s conviction, the case will head back to the Racine County Circuit Court.

Inaugural Pride Day hosted at City Hall

RACINE — “If you are not purposefully inclusive, you are unintentionally exclusive,” said Robin Smerchek, who was celebrating her 66th birthday at Racine’s inaugural Pride Day, hosted at City Hall, 730 Washington Ave.

Smerchek’s message was one of many powerful statements made on Sunday afternoon. While the 66-year-old and dozens of other people gathered in celebration, Pride Day was a stepping stone for the city, according to Mayor Cory Mason.

“One of the things I get to do as a mayor is proclaim things,” said Mason. “We are working to strengthen our discrimination laws in the city of Racine; that’s making sure all of our anti-discrimination ordinances include sexual orientation and gender identity.”

Mason emphasized the importance of hosting events like Pride Day in the city of Racine, and wants to see changes in the law reflect his stance. “I’m thrilled to be here today, and continue working to support the LGBT community.”

In 2017, Racine received one of the lowest scores of the seven Wisconsin cities rated by The Human Rights Campaign, a national civil rights organization that advocates for the lesbian, gay, bisexual, transgender, questioning and queer communities.

Personal endeavors

Rae Antczak’s story reflects the statistic.

“About a month and a half ago, I attempted suicide,” he said.

“One of the things that has been weighing on me heavily is feeling like my identity isn’t respected, or even acknowledged. No matter how hard I try to make myself look masculine or try to do everything right, it still never feels like enough. It makes me feel so small and helpless and I don’t want anyone else in my community to feel that way.”

However, Antczak, 18, admitted that Pride Day was a step in the right direction for Racine. “It’s incredible and gives me hope for the future,” he said. “I hope this makes other people like me feel safer in their own community.”

Another person who spoke about their personal struggle was Dale Estes, program manager for the LGBT Center of Southeast Wisconsin. “Growing up in a Southern Baptist church, it was difficult to come out and be myself,” he said. “But, boy, once I did, I felt like a different person; it changes your perspective on life.”

Estes praised Antczak after the 18-year-old finished his speech. “Bravo,” Estes shouted. “Bravo.”

“We’ve forgotten”

“We need to remember,” said Kaye Glennon, pastor at Sacred Journeys Spiritual Community. “We are all one in this community; when we forget, we discriminate and judge each other.”

Glennon sang to the LGBT community during her speech and her lyrics were symbolic. Similar to John Lennon’s “Imagine,” the pastor sang about people being beautiful and picturing a world with no hate.

“We need to remember,” she reiterated. “Pride is a celebration and an acknowledgement of the fight it took to get here.”

Change to come

Alderman Melissa Lemke of the 15th district backed Mason’s stance, and was vocal about modifying laws in the city.

“I’m grateful to be here today because I’m a member for the LGBT community,” she said. “I want to echo what Cory said; a lot of these issues we are working with revolve around getting more representation and more voices that are formally at the city table for LGBT people.”

June marks Pride Month across the country and commemorates the anniversary of the 1969 Stonewall riots.

“Growing up in a Southern Baptist church, it was difficult to come out and be myself. But, boy, once I did, I felt like a different person; it changes your perspective on life.” — Dale Estes, program manager, LGBT Center of Southeast Wisconsin


Machinery Row lawsuits refiled

RACINE — Two lawsuits against the City of Racine concerning a development project once called Machinery Row have been refiled in the state’s circuit court system.

Both cases surround how the city acquired property for the development, which would have been a $65 million mixed-use development in the 20-acre area north of Water Street and east of Marquette Street.

The city abandoned those plans and announced a new direction for the site last year. By the end of 2017, two civil lawsuits were filed against the city, alleging that former property owners and tenants in the development area were entitled to money from the city because of the project.

First lawsuit

Patrick Fagan filed the first lawsuit in December, alleging the city owed him more than $659,000 tied to his relocating from the site to make way for Machinery Row. Fagan was a tenant at 615 S. Marquette St., where he ran P & P Products, a millwork and machining business. He named the city, its Redevelopment Authority and two city officials as defendants.

A Racine County Circuit Court judge dismissed the case in May, after determining that the defendants were not properly served summonses in the matter. Judge David Paulson dismissed the complaint without prejudice, allowing Fagan to refile his claim.

Fagan, through attorney Todd Terry, filed a new case against the city this month, now requesting $594,948.95 tied to three moves he has made since leaving the site, plus the costs of two other claims that have not yet been tabulated.

He alleges that he was forced to move his business but that the city did not offer or process any relocation claims or benefits prior to June 2017. According to the complaint, the Redevelopment Authority agreed in December to pay Fagan about $64,500 related to portions of two of his claims. The third has not yet been processed or paid, and two more are forthcoming, the complaint states.

Fagan also requested judgment in an amount to be determined for relocating his business, plus damages and litigation costs.

Second lawsuit

The second lawsuit was filed in federal court by a group of nine businesses and their owners, including Richard Olson, against the city, the Redevelopment Authority and some current and former city officials. In that case, the plaintiffs also sought compensation for relocating out of properties that were acquired for Machinery Row.

That case was dismissed in March in accordance with terms agreed upon by the parties. Some portions of the complaint were dismissed with prejudice, and others without.

On June 14, the case was refiled in the Circuit Court system, this time with fewer plaintiffs and only the city and Redevelopment Authority as defendants. Olson remained a plaintiff.

The complaint alleges that the businesses had to cease their operations because they weren’t provided relocation assistance. The plaintiffs filed six claims with the Redevelopment Authority, which were all denied other than portions of two, the complaint states.

The plaintiffs requested about $1.07 million as relief, plus funds to re-establish businesses and some litigation expenses.

As of Friday afternoon, the city had yet to respond to either complaint. City Attorney Scott Letteney said in an emailed statement that he was aware of the lawsuits. Fagan’s complaint is under review, but Olson’s complaint has not yet been served, Letteney said.

“I am confident that all processing of relocation benefits related to the Water Street development site has been in compliance with the relevant law,” he Letteney said.