Another Alleged 4-Time Drunken Driver Arrested in Wauwatosa

As the State Legislature is being asked to further stiffen penalties for drunken driving because so many repeat offenders are still being caught, another driver has been arrested in Wauwatosa and charged with his fourth OWI within five years.

At 9:05 p.m. Monday, a 46-year-old Milwaukee man was arrested for his fourth time after he was stopped in the 1500 block of North 57^th Street and determined to be driving while intoxicated.

Michael Anthony Burns was charged Thursday in Milwaukee County Circuit Court under state law, updated two years ago, making four offenses within five years a Class F felony punishable by up to six years in prison and $10,000 in fines. He was also charged with a misdemeanor for driving while his license had been revoked for a previous OWI conviction.

Driver seemed intent on evading the law

According to police reports:

A Wauwatosa patrol officer had followed Burns from the 6600 block of Milwaukee Avenue, where, he said, Burns had unaccountably accelerated in front of him, as if to make a getaway.

The officer ran the car’s plates and found that they did not match the car and had expired in 2008.

After the stop, the officer smelled alcohol and saw an open Milwaukee’s Best beer can in the rear floor. Burns handed it over, still cold and half full. Burns told the arresting officer he had drunk two beers.

The officer ran Burns' driving record and found his license was revoked because of previous and recent OWI convictions.

He performed poorly on some steps of a standard field sobriety test and, while he agreed to a breath test, the officer judged that Burns failed to blow into the tube properly to give a readable sample.

During his arrest, Burns once tried to just walk away from officers, and then when being escorted to a squad car he “quickly and violently tried to pull away from us again” and had to be taken to the ground.

Burns finally refused to give a voluntary breath or blood sample at the station and had to be taken to a hospital for a mandatory blood draw.

How much evidence do police need?

Based on Burns' driving behavior, the odor of alcohol about him, the open beer in the car, his admission of having been drinking more before driving, his poor perfomance on tests, his refusal to cooperate in offering breath and blood samples, and his apparent desire to evade arrest, the Wauwatosa Police Department forwarded a request for the felony charge to the DA's office early Tuesday, which was initially accepted there.

However, later Tuesday they were informed that a court commissioner had refused to sign the criminal complaint, finding a lack of probable cause for prosecution, and ordered Burns released.

Police reports did not say what the commissioner found lacking, although it may have been the fact that the arresting officer had to report a .000 blood alcohol content on two attempted breath tests in the field – even though he also reported that he felt assured Burns was not really blowing into the tester tube at all.

Field breath tests in OWI cases are only preliminary, to judge whether an arrest is warranted, and an above-.08 level is not necessary if there is other sufficient evidence. Those preliminary field tests are followed by evidentiary breath or blood tests taken before booking, and those are the findings used in charging and judgment in court.

But blood samples have to be sent to a lab, with a wait for results, while evidentiary breath tests – if volunteered – offer an immediate reading.

At any rate, the case was turned over to the police Investigative Bureau, which reviewed the evidence and filed a new request for the same charges on Thursday. This time, the complaint was signed, and Burns was ordered to appear in court Friday.

Toughened laws still lighter than most

According to a story published Tuesday in the Milwaukee Journal Sentinel, state Sen. Alberta Darling said she intends to introduce legislation to further toughen Wisconsin's drunken driving laws.

Wisconsin's OWI statutes were reviewed by the Legislature and stiffer penalties were introduced just two years ago. But even those laws remain more lenient than most states, and only Wisconsin still treats a first offense as a traffic offense. Wisconsin is among just seven states that rate third offenses as misdemeanors, and even a fourth offense may not draw a felony if all the offenses have not occurred with the past five years.

In the Journal Sentinel story by reporter Alison Bauter, a 40-year-old woman relates how, up to her seventh drunken driving arrest, she felt more financially inconvenienced by fines and court costs than really deterred from taking another chance behind the wheel after drinking.

Apparently, there are plenty of others like her – and Wauwatosa, as the crossroads of the metropolitan area, seems to attract more than its share, some residents, many not.

Recent multiple-offense cases

Among them, and only a sampling:

• On June 28, a 23-year-old Wauwatosa man was arrested here .
• On June 22, a 58-year-old Elm Grove man was charged with . Because all his offenses did not occur within the past five years, he faces only up to one year in jail and a $2,000 fine if convicted.
• On March 17, a Milwaukee woman was – an arrest for driving under the influence of drugs rather than alcohol. Hers was one of seven OWI arrests in Wauwatosa that St. Patrick's Day weekend.
• In a Wauwatosa case that made metropolitan media headlines, a 38-year-old Menomonee Falls man was arrested Nov. 29 .

Proving that Wauwatosa residents also do a share of drinking and driving while abroad in the region:

• A 27-year-old Wauwatosa man was arrested June 28 in Racine County and charged with a felony .
• A 28-year-old Wauwatosa man was arrested for with a blood alcohol concentration three times the legally proscribed level. All three offenses were within the past four years.
• A 63-year-old Wauwatosa man was .