The Safety and Licensing Committee met 09/25/2024. The first 40 minutes of the meeting was taken up with the discussion and vote on the bartender license for Cindy. Earlier this year, Cindy was convicted of operating a vehicle with a prohibited blood alcohol concentration level. Additionally, between 1995 and 2007 she was convicted 3 times for driving while intoxicated. She has a bartender license through the City of Appleton so when she tried to renew it the Police Department recommended her for denial “based upon her criminal and / or arrest record, her unpardoned felony conviction(s), and her status as a ‘habitual law offender.’”
The committee ended up voting 3-1 to approve her alcohol license under the reasoning that her last OWI conviction took place 2007. Since then, she had not been convicted of any alcohol-related offenses. In this situation, her blood alcohol content level was only .026 which, if any of the committee members had that level would have only resulted in a verbal warning to drive safely. They also seemed to believe Cindy’s assertion that the elevated blood alcohol concentration in this instance was the result of having taken some NyQuil.
I’ve prepared a transcript of the discussion for download:
Cindy’s initial statement to the committee was, unfortunately, not recorded because the microphone didn’t seem to be turned on, but based on the discussion that took place after her statement, it sounded like she claimed that she had taken some NyQuil, was driving her daughter’s car, and was pulled over because her daughter’s car had darkened license plate covers. In her explanation, she was nervous due to her past interactions with the police and the police officer, seeing her nervousness, tested her blood alcohol level which came back at .026.
As was confirmed by City Attorney Zak Buruin, that State law lowers the allowable alcohol concentration threshold for people who have been convicted of a third OWI offense.
Cindy said that she plead guilty to the charges because pleading not-guilty would have been expensive and she would not have won because her blood alcohol content level was clearly at .026. She said she served 60 days under house arrest during which she resided at her daughter’s apartment and was able to go to work.
She voiced her belief that the district attorney who prosecuted her knew that she probably was not drinking or driving. She also claimed that one beer would have put her over the legal driving limit, the implication being that because the alcohol level was only .026 she must not have been drinking.
She also said that she attended two individual therapy sessions during which the therapist determined, “I did not have a problem with drinking and driving, that I was being honest with her on the up and up, that I had gone through rehabilit—or the outpatient treatment 17 years ago. We discussed things that I do, things that I don’t do, what do I do in my spare time, do I feel like drinking? She understands—she believed me.” She said the recommendation the therapist made was, “just to keep moving forward and doing what I’m doing, and to be try to be more mindful that every time you take that Little Dixie cup with your Vi—Vick’s NyQuil, you better have the non-alcoholic or don’t get behind the car, because that’s exactly how this happened.”
She said that since her last conviction for OWI in 2007, she did not fully abstain. “I will have an occasional here or there, but I’m usually at home.”
She worked at the Eager Beaver, and her employer Mark came and spoke on her behalf. He spoke highly of her as an employee and said that it was hard to find good employees right now and he would hate to lose her.
Alderpersons William Siebers (District 1), Denise Fenton (District 6), and Alex Schultz (District 9) were all inclined to believe Cindy’s recounting of events and view the 18 years in between her 2007 conviction and the 2024 conviction as evidence of her rehabilitation.
Alderperson Chris Croatt (District 14) was the only committee member who seemed inclined to deny the license. He pointed out that there had been large gaps between her other convictions. 1995 to 2002 was 7 years. 2002 to 2007 was five years.
There was some discussion about the fact that Cindy’s blood alcohol level was only .026. She claimed that this was because she had drunk some NyQuil and that if she had drunk beer it would have been much higher.
Assistant City Attorney Zak Buruin urged the committee to focus on whether or not they believed she was rehabilitated and not what might have caused the elevated blood alcohol level. “I understand the concerns regarding the blood alcohol concentration, but the legislature has determined that is a felony and that that is a disqualifier unless rehabilitation has been shown. So, I would urge the committee to focus upon the rehabilitation aspect.”
NyQuil was, however, brought up again, so Attorney Buruin told the committee, “[A]ssuming this was actual NyQuil, I’ve done a search, and according to their own information, the alcohol concentration in the standard NyQuil is 10%.”
The fact that Attorney Buruin provided this information bothered Alderperson Siebers who said, “We were told not to go that route. Now you’re going that route.”
Attorney Buruin responded, “It’s come up. I would urge—it can weigh into what’s been what’s been said and how the committee considers rehabilitation, but because that’s been put out there as a factual consideration, I wanted to add that additional factual contest. I still urge the committee to focus on the rehabilitation and only consider any of that insofar as it relates rehabilitation.”
Alderpersons Siebers, Schultz, and Fenton seemed to really struggle with the idea of not renewing Cindy’s license.
Alderperson Siebers said, “At what point in time, if ever, does your past record no longer impact your present? Here we have an individual who has had a pretty lengthy period of time in terms of no contact with the police or, and now, all of a sudden, she has an offense, and so, you know, I struggle with this. At what point in time does the past remain in the past and not impact the present?”
[It should be noted that Alderperson Siebers was potentially factually incorrect in his claim that Cindy had gone “a pretty lengthy period of time” without having contact with police. A basic search of the Wisconsin Circuit Court Access website indicates that an Appleton resident with Cindy’s name, middle initial, and date of birth, has had multiple interactions with the police and the court system in the time since Cindy’s 2007 OWI conviction. Those other interactions did not involve alcohol use and so were not listed as relevant offenses in the Police Department’s memo, but they do potentially speak to her general ability to conduct herself in a law-abiding and responsible manner.]
Alderperson Fenton said, “I can’t make a statement on the law. The law is the law, but it’s—it is of some concern that after 17 years of blood alcohol concentration that where, if I had done it, they would send me on my way, is—can affect somebody forever. So, I do have some—and I’m struggling with this. I will be honest. I’m struggling with this.”
Alderperson Schultz also wondered when offenses dropped off someone’s record. “This is 17 years ago. That seems like an awfully long time for non-occurrence, no conflict with law, and then also to be doing what you’ve been doing without issue.” He also believed the reason she had been pulled over was relevant, “because it seems to me that’s more important than this fact that you were pulled over for something not relating to serious intoxication, from what I understand, a hazard to anybody on the road, but for something non-consequence, for like, you know, occluded plates and then resulting in this, this really low blood alcohol content.”
[It’s not clear to me that Cindy’s claim that she was pulled over for having a darkened license place was correct. The Wisconsin Circuit Court Access website lists a charge for speeding that happened on the same day as the prohibited alcohol content level. The speeding charge was dismissed, but, to me, it would suggest that she was pulled over for something beyond merely having darkened plates.]
The committee ended up voting 3-1 to recommend Cindy’s license be approved.
[It really makes me uncomfortable how predisposed the committee members were to accept Cindy’s claims as factual which necessarily entailed dismissing the actions of the police officer who initially cited her for violations and the recommendation the Appleton Police Department to deny the license, and all this while not taking basic steps to investigate the matter in a more complete fashion. A brief perusal of the Wisconsin Circuit Court Access website indicates that there is a female resident of Appleton with Cindy’s same name, same middle initial, and same date of birth who has not been able to go a single decade from the ‘90s to the 2020s without having interactions with the police and the legal system. In addition to the OWIs, those interactions include convictions for trespassing, disorderly conduct, and resisting or obstructing an officer. They also include charges that were dismissed as part of a plea agreement but read into the record so that they could be considered in the future when sentencing for other crimes. Those read in charges include felony bail jumping and disorderly conduct with a domestic abuse modifier.
I would have appreciated if the committee members had conducted a more thorough review of the situation, rather than just relying on Cindy’s account of what happened and what the therapist recommended. Double checking the Wisconsin Circuit Court Access website was a thing that could have done during the meeting. It also might have made sense to hold the item for a couple weeks so that the police could obtain the initial incident report pertaining to the situation in question and reach out to the arresting officer to get his version of the interaction. It would also have been beneficial if Cindy could have provided some kind of statement from her therapist attesting to the accuracy of Cindy’s claims that the therapist determined she did not have a problem with drinking and driving.
The entire situation seems very odd with some unresolved inconsistencies. I could almost believe that a person might register a .026 on a breathalyzer under certain circumstances, but the paperwork Cindy submitted indicated the test was a result of blood analysis which is more accurate than breathalyzer results. I would have appreciated some sort of evidence that drinking a normal dose of NyQuil could plausibly result in a person having a lab-tested blood alcohol level of .026, and I also would have liked some more details as to how much time passed between when she drank the NyQuil and when her blood was drawn for the test.
The committee’s basic focus is the safety of the City of Appleton, not the promotion of the needs or desires of specific individuals. So, in addition to a more in-depth investigation of the matter, I would also have appreciated a more robust discussion about how the safety of the City of Appleton would be benefited by the issuing of this license to this individual.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1213525&GUID=1F749B78-44A2-448F-A33C-3811239DA153
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