WISCONSIN COURT OF APPEALS
DISTRICT 3
____________________________________________________________
STATE OF WISCONSIN
Plaintiff-Respondent,
Motion for Stay of
Enforcement
of a Judgment and Order
§ 808.07(2)(a)
V.
and/or a
Temporary Injunction
813.02(1)(a)
Pending Appeal
Circuit
Court Case No. 09 CF 48
KENNETH LEROY DRIESSEN
Defendant-Appellant
____________________________________________________________
I, Kenneth Leroy Driessen pro se, Defendant/Appellant, request of this honorable Court of Appeals, that any Judgment
to be imposed as the result of the Friday November 13th, 2009 Jury Trail Guilty Verdict(s) form the State of Wisconsin Circuit
Court of Sawyer County, be Stayed and/or a Temporary Injunction be granted by this Wisconsin Court of Appeals to restrain
the Sawyer County Circuit Court from sentencing or imposing any sanction resulting from the Verdict until the case is reviewed
and overturned, vacated or remanded by the Court of Appeals, See State v. Gudenschwager, 191 Wis. 2d 432, 529 N.W.2d 225
(1995). Further, Driessen asks that the Stay or Temporary Injunction remain
in force, even if the Appeals Court by chance would affirm the circuit court's Verdict, the Stay or Injunction remain in place
right up to the US Supreme Court or until a petition for certiorari is refused or the Verdict is affirmed by the highest court.
This defendant/appellant has not shown a propensity to avoid the judgment of the Courts of the State of Wisconsin, only that
said trial and likely judgments are not in conformance with the constitution of the State of Wisconsin nor of the constitution
of the United States of America. The following legal and factual grounds including related exhibits are submitted within this
Motion to demonstrate that a stay and or an injunction is necessary to restrain the State Respondents, individuals acting
under the color of the law, from further violation of Driessen's constitutionally guaranteed rights. Before, during and then
immediately after the trial defendant Driessen did ask the judge about relief from the charges and about post conviction relief
and Judge Eaton verbally expressed his reluctance to grant such relief; the Judge also expressed his philosophy of considering
himself to be part of law enforcement rather than an official of the judicial branch of government independent of the executive
branch which law enforcement falls under. Driessen is convinced that the Honorable Judges of the Wisconsin 3rd District Appeals
Court will agree that seeking post conviction relief in the Circuit Court in front of the presiding judge in this matter has
proven to be impractical. Therefore it is proper for the Appeals court to consider this Motion based on the following grounds:
1.) The arresting officer's Incident Report
Narrative, being a document attached to the complaint as to show probable cause is rife with obvious false statements, contradictions
and prejudice. A video recording of the distance of the incident was submitted to the court as proof that the actual entire
distance which the incident took place is under 8/10ths of a mile see exhibit (http://www.blip.tv/file/2589408) and
the Deputy insisted it is a "mile to a mile and a half". So the Deputy knows he can fabricate reports against physical reality
and get away with it and the court thus far has proved untruth to be acceptable so long as it is the word of a law enforcement
officer (3/28/09 Incident Report Exhibit #).
Next, there is a corner involved and anybody familiar with reality and elementary high school physics knows it is necessary
to slow down almost to a complete stop before a vehicle can maneuver around and approximate 110 degree turn and it is impossible
to make such a turn traveling in excess of the posted speed limit. If a person
then makes the turn it is impossible for a vehicle to "accelerate very quickly" swerve completely in and out of the other
lane and come to a complete stop parallel to the roadway in less than 800 feet which is the distance that the incident took
place in according to the Deputy's description of the incident using land marks. All through the various hearings the judge
refused to consider any of the facts that a rational unbiased person would consider to show bad faith by the arresting officer
and by the prosecutor concerning probable cause.
The original complaint contained a statement saying that Driessen's driving privileges were revoked at the time of
the incident. So knowing very well that he did have a valid driver's license on the morning of the incident Driessen asked
the assistant DA for a dismissal because the deputy did not have probable cause to stop his vehicle in the first place, see:
People v. Jennings, 54 NY2d 518, 430 NE2d 1282 (1981),
and Whiteley v. Warden, 401 US 560, 568,
91 SCt 1031, 1037, 28 LEd2d 306 (1971) based on Mapp v. Ohio,
367 U.S. 643 (1961). To the contrary the assistant DA amended the complaint
to hide the fact of the driver license issue as related to probable cause and Judge Eaton was more than happy to accommodate
the Assistant DA, Judge Eaton himself signed an amended complaint attempting to withhold evidence that would tend to lead
a person to think there was some sort of computer record error involved bringing into question the validity of the probable
cause of the traffic stop search and seizure see: Brady v. Maryland, 373 U.S. 83 (1963).
The State Trooper's original report (Exhibit #) states nothing about speeding and again she changed her story under
oath stating that Driessen's vehicle was exceeding the speed limit in her opinion. Through request for discovery and motion
for discovery Driessen found the words "negative valid" tending to prove that through computer error or some other fault the
Sheriff's radio dispatch reported to Deputy Knapp that Driessen did not have a valid driver's license before he started his
investigation and confrontation of Driessen, for video/audio clip see exhibit (http://www.blip.tv/file/2891142). Deputy
Knapp, thinking that Driessen had violated the law by driving after revocation would give him the right to search and take
things out of Driessen's pants pocket incident to arrest. Fabricating his report to state that Driessen handed the small container
to the officer, which is contrary to the written report of Trooper Lewis and Driessen's swarn testimony this presents to a
reasonable person a strong likelihood of bad faith on the part of Deputy Knapp and a valid reason to suppress evidence gathered
in such a dubious manner, see Franks v. Delaware, 438 U.S. 154 (1978),.
Driessen also obtained a computer print out from the State Patrol,
which appears to state that Driessen possessed an ID card rather than a driver's license (exhibit #). So hiding such information
rather than considering it may well be a strong indication of bad faith on the part of Deputy Knapp, Assistant DA Bruce Poquette
and Judge Eaton, see State v. Greenwold, 189 Wis. 2d 59, 525N.W. 2d 294 (Ct. App. 1994) and State v. Hyndman, 170 Wis. 2d 198, 488 N.W. 2d 111 (Ct. App. 1992).
Also in Deputy Knapp's Incident Narrative Report he states that he recognized Driessen signifying that he knew Driessen
before this incident and Deputy Knapp's actions tend to prove a prejudice against Driessen, Driessen was never previously
arrested by Deputy Knapp and it would be highly unlikely that Deputy Knapp would remember Driessen out of the hundreds and
even thousands of people that are arrested locally for DUI and Marijuana violations over the years. Driessen is politically
active and that is a constitutionally protected right under 1st Amendment freedom of speech, see State v. Kramer,
2001 WI 132, 248 Wis. 2d 1009, 637 N.W. 2d 35, 99-2580 .
Driessen, after requesting discovery and motioning to compel discovery eventually received some of the discovery he
asked for including the report from Trooper Lewis of the Wisconsin State Patrol who was on the scene of the March 28th 2009
incident. Prior to receiving the Trooper's report Driessen did write to the Prosecutor and the Court expressing that officer
Knapp did reach into his pants pocket to remove the small container under the pretense of a Terry stop and then falsely
stated on his police report that Driessen reached his hands in and out of his pockets numerous times and then Driessen himself
handed the contraband to the Deputy. The Trooper's report coincides with Driessen's statement that it was Deputy Knapp who
took the container from Driessen's pocket (see exhibit #). What ever version
the court is to believe it is obvious that the Deputy was not sincerely searching Driessen for weapons, see State v. Kyles,
2004 WI 15, 269 Wis. 2d 1, 675 N. W. 2d 449, 02-1540 and Minnesota v. Dikerson, 508 U.S. 366 (1993). While respect
of the entire system is often demanded by individual judges who don't like law enforcement agents actions to be referred to
as straight up bold face lies, to put it mildly there are indications present within the Deputies report that would bring
a jurist or average person to conclude that statements concerning probable cause were fabricated by the Deputy. Then when Driessen motioned the court for an evidentiary hearing, during the hearing, Judge Eaton let the
Trooper change her story on the witness stand in a way to vary greatly from her written report and coincide exactly with the
Deputies report during the Evidentiary Hearing and the Jury Trial; a conviction obtained through false testimony is a denial
of due process, see, Napue v. Illinois, 360 U.S. 254 (1959).
2.)
Judge Eaton did error when he denied Driessen's petition/motion for Declaratory Relief.
The State V. Peck case which the State and Judge Eaton relied so heavily upon was decided in 1988 years before
the Religious Freedom Restoration Act 42 U.S.C. §§ 2000bb-2000bb(4), (RFRA) was passed in 1993. Driessen did quote the RFRA in his Petition for a Declaratory Judgment. Under § 961.41
an annotation clearly states that: "Possession is not a lesser-included offense of manufacturing". State v. Peck,
143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988). So Wisconsin Courts have previously addressed the distinction between
possession of a controlled substance and possession with intent to distribute. In
other words Peck cited First Amendment religious rights in his defense against charges of growing and manufacturing
marijuana, not simple possession for his personal religious use. Peck was before the RFRA and therefore is not a valid
case precedence concerning religious freedom and possession of marijuana in small personal amounts. United States v. Meyers,
95 F.3d 1475, 1489 (10th Cir. 1996) is another case where the religious rights are prayed for against the compelling interest
of the government based on intend to distribute and distribution of pounds of marijuana not .36ths of a gram for personal
use as in Driessen's case now before the courts. From People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) "In
Bauer, we held that the defendant could use RFRA to defend against his prosecution for simple possession of marijuana,
but not against the charges of conspiracy to distribute and possession with intent to distribute." From United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996) "As to the three counts on which the appellants were convicted of simple possession, the exclusion of the religious
defense was in error."
As further stated in Driessen's Petition for Declaratory Judgment, as far as Driessen knows there has not been a court
case to become precedence concerning the right to use marijuana medicinally since the US government obtained a patent on Marijuana
as a medicine, see United States Patent number 6,630,507, October 7, 2003. The fact that the US Government itself has
a patent on marijuana as a medicine truly and effectively negates the DEA and ONDCP claims that there is no medicinal use
for marijuana. Driessen, in his Petition for Declaratory Judgment, did mention depression and anxiety and that in the '90s
he was hospitalized for major depression and did receive ECT treatments and conventional drug therapy, which did not elevate
his symptoms. Psychiatrists Lester Grinspoon MD and Tod H. Mikuriya, M.D. have determined that marijuana is safe for medical
use, see: http://www.druglibrary.org/olsen/MEDICAL/YOUNG/young.html.
Finally the judge did error because anybody with any sense of justice can no longer deny that the popularity of marijuana
has reached and exceeded a threshold where the state and federal governments have lost all credibility concerning any notion
of a compelling interest in protecting people from themselves by forbidding the use of marijuana through criminal sanctions.
A jury eliminating over 42% of the population because they have partaken in the same forbidden behavior at the defendant can
hardly be considered an impartial jury of random peers. In a constitutional republic
with democratic principles rooted within, 100 million people cannot be wrong to the point of being considered criminal while
judges in position of power being a minority cannot consider themselves right or just upholding marijuana prohibition through
criminal sanctions including felony convictions and incarceration for personal possession, see the US government and UN statistics
which are certainly an expert source of this information: http://www.oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect1peTabs1to46.htm#Tab1.1A
http://en.wikipedia.org/wiki/Adult_lifetime_cannabis_use_by_country.
It is time for the Courts of the State of Wisconsin to get real. There are people on probation that are allowed to
smoke marijuana as a practice of their religious rights, see, United States v. Raynard Earl Valrey, No. CR96-549Z (W.D.
Wa., February 22, 2000) "The Court will allow Mr. Valrey's personal use and possession of marijuana exclusively in
connection with his practice of his religion. Mr.Valrey shall (1) self-report his marijuana use (affirming that such use is
in the context of his continuing participation in the Rastifarian religion), (2) undergo regular urine-testing for controlled
substances, (3) report monthly, (4) submit to periodic criminal history checks, and (5) comply with all of the other conditions
of supervision."; See also United States v. Edward R. Forchion, No. 04-949-ALL
(E.D. Pa., July 22, 2005) . We shall vacate their sentences and remand
this case for further proceedings because the magistrate judge did not consider whether six of the probation conditions that
he imposed violate the Constitution and/or RFRA. Since 1981. Also there are 4 people left on the USG Compassionate Use
Program that get 300 joints a month supplied by the government for 30 years and one guy smoked his 115000th joint it take
complete sadistic idiocy to keep this marijuana war going. The 56-year-old Fort
Lauderdale stockbroker will put his name among the greats when he sets a world record tomorrow for weed consumption while
lighting up his 115,000th joint.
http://rockjamaica.wordpress.com/2009/11/20/irv-rosenfeld-record/ This is a result of a little known case where a medical necessity case was won by
the defendant resulting in dismissal of criminal charges related to growing and possessing marijuana. The case was not appealed
by the government and therefore stands United States v. Randall, Crim. No. 65923-75, (Super. Ct. D.C. 1976) "Upon
the foregoing discussion the Court finds that the defendant Robert C. Randall has established the defense of necessity. Accordingly,
it is the finding of this court that he is not guilty of a violation of D.C. Code §33-402, and the charge against him must
be and hereby is DISMISSED" http://www.drugpolicy.org/docUploads/randall.pdf ; see also Randall v. US, "In 1978, federal agencies, disquieted by Randall's outspoken opposition to the
medical prohibition, sought to silence him by disrupting his legal access to marijuana. In response, Randall, represented
pro bono publico by the law firm of Steptoe & Johnson, brought suit against FDA, DEA, the National Institute on Drug Abuse,
the Department of Justice and the Department of Health, Education & Welfare. Twenty-four hours after the suit was filed,
federal agencies requested an out-of-court settlement. The resulting settlement provided Randall with prescriptive access
to marijuana through a federal pharmacy located near his home." Contrary
to Judge Eaton's erroneous biased unconstitutional decision, anybody with the least amount of capacity to view human society
and the ramifications of the US constitution applied to it on a rational basis would come to the conclusion that Driessen
has proven that laws forbidding simple possession of small amounts of marijuana for personal use through felony charges are
unconstitutional beyond a reasonable doubt.
3.) The trial was biased: US government
statistics, gathered by the National Survey on Drug Use and Health, division of Substance Abuse & Mental Health Services
Administration, division of the US Department of Health and Human Services established as fact that over 100 million US citizens
have used marijuana at least once in there life time, again see: http://www.oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect1peTabs1to46.htm#Tab1.1A
Judge Eaton eliminated any person who confessed
to ever trying marijuana or even advocating that it should be decriminalized from the jury. Since the UN WHO data for the
United States also coincides with the USG data and for the years 2002-3 and persons over age 18, once or more life time use
of Cannabis/Marijuana is at 42.4%, see http://en.wikipedia.org/wiki/Adult_lifetime_cannabis_use_by_country, a jury
eliminating that many people from the pool of perspective jurors does not meet the 6th Amendment of the US constitution
nor Article 1 Section 5 of the Wisconsin Constitution concerning impartiality. Also when transcripts of the record
are obtained by the Appellate Court it will be found that the judge erred by not dismissing a perspective juror as requested
by the defendant in a challenge for cause of an officer of the same Sheriff's Department who has worked with and probably
will work with the arresting officer again. Furthermore Judge Eaton had stated
in a previous case that he considered himself part of law enforcement and when I confronted him on this he gave the jury an
explanation that defended the law enforcement assertion rather than explaining that the Judiciary is independent of the executive
branch. Also the Wisconsin court system relies on a case precedence to uphold
an ideology that the jury only hears fact and the court determines the law. Under the Wisconsin Constitution Article 1
Section 3 which states in part " In all criminal prosecutions or indictments for libel …and the jury shall have
the right to determine the law and the fact." Driessen knows judges use case law to give false authority to themselves
unconstitutionally granting judges exclusive right to determine law and take the right to consider the constitution in criminal
cases away from the jury and the defendant.
Also, in this particular case, marijuana was certainly legal before Wisconsin became a state and a study of history
will show that tinctures and raw cannabis (marijuana) were for sale and available at that time. Therefore as Driessen stated in front of the judge that according to Village Food & Liquor Mart
v. H & S Petroleum, Inc. 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493: "A party has a constitutional right
to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized
at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law
in 1848." Driessen has viewed copies of catalogs and newspaper adds from
prior to 1848 revealing that marijuana tinctures and bulk marijuana were available by mail order in Wisconsin. Marijuana was
known to be legal at that time for any use that suited the user, therefore under Article 1, Section 3, and common law
principles Driessen believes he did truly have the right to bring his claim of unconstitutionality of the marijuana laws before
the jury. The Judge erred when he purposely denied Driessen of his right to bring
the constitution to his defense in front of the jury.
4.) Charging a citizen with a felony
for a second violation of a marijuana possession law for a minute amount, .36th of a gram, is unconstitutionally crewel and
unusual within the meaning of the 8th Amendment in your face. In relationship to any contrived notion of damage to
another person or threat to society as a whole, any police state perception of a compelling
interest justifying criminalization of personal use of marijuana is a farce and travesty of justice. Again, when US Government
statistics demonstrate the fact that over 100 million people have partaken in an activity including the sitting President
and the prior two Presidents who have admitted, some publicly and some privately, to using marijuana demonstrates that it
is both unconstitutional and irrational to charge an individual with such a crime let alone a felony. Criminal sanctions and incarcerating people for possession of marijuana is depriving people who never have
and never will use marijuana of the tax revenue that could be collected from regulating it in a similar manner to alcohol
and tobacco. Criminal marijuana sanctions are absolutely undeniably not the least restrictive means possible to the façade
of a compelling interest of the police state to control and regulate marijuana; in fact such policy has proven to be a total
failure and will never achieve its zero tolerance objective that is nothing more than tyranny.
Driessen signed up and declared his candidacy to run for US Congress in 2000 and again signed up this summer for the
2010 election http://www.wis7thdpd.org/. A felony conviction that is not stayed will prevent his name from being on
the ballot. A felony charge will cause irreparable damage to Driessen while serving no purpose what so ever to society as
a whole. More over will he not be able to run for office he will not even be allowed to vote in the election let alone be
able to sit on a jury for the rest of his life. Is there even one Amendment of the Bill of Rights that such an unconstitutionally
vague arbitrary law prohibiting the personal possession of marijuana does not violate? See: Forsyth County, Ga. v. Nationalist Movement,U.S 112 S.Ct. 2395, 2403 (1992) , Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972), Connally v. General Constr. Co.,269 U.S.
385, 391 (1926),
5.) A pattern of Selective Prosecution
and corruption can be shown. Defendant Driessen knew about several alleged incidents of misconduct by officer Knapp and did
obtain evidence of one such incident where Deputy Knapp restrained and hit a news reporter with his flash light and wrote
a police report which is obviously undeniably false when compared to a video of the incident. (Knapp's 08/08/2008 Report Exhibit
# attached), (exhibit video viewable at: http://wiscokidd.blip.tv/file/2832344/ ) Whether or not the judge erred in
his decision not to allow such evidence which proves beyond a doubt that Deputy Knapp wrote a false police report in a case
unrelated to this case; it is proof that certain local law enforcement and District Attorney's office officials are in collusion
and did fail to prosecute a law enforcement agent within its district and has been and continues to attempt gag and hide a
criminal assault and battery crime perpetrated by one of their law enforcement agents acting under the color of the law. Judge
Eaton stated in a Scheduling Conference minutes before the jury trial, to the affect that such evidence is an unallowable
character attack on the Deputy rather than evidence to show that the Deputy is capable of writing false police reports and
presently in Sawyer County crimes under the color of the law are not prosecuted instead sealed from public scrutiny. It is reasonable to consider that Judge Eaton may have demonstrated bias against
Driessen and favoritism toward law enforcement above and beyond harmless error and to a level that is an unconstitutional
infringement of Driessen's rights by not considering the unprotected crimes of the arresting officer.
Considering the points of law and fact above including the evidence and exhibits attached to this Motion for a Stay
of Sentencing and or a Temporary Injunction to achieve the result of restraining the State Planiff/Respondent agents from
imposing upon Driessen any fine, imprisonment, or probation corrections restrictions upon his rights until relief is granted
to him or the appeals process is exhausted, Appellant Driessen asks the Court to grant this motion, as soon as practical,
see: A stay pending appeal is appropriate when the moving party: 1) makes a strong showing
that it is likely to prevail on the appeal; 2) shows that unless the stay is granted it will suffer irreparable harm; 3) shows
that there will be no substantial harm to the other parties; and 4) shows that there will be no harm to the public interest.
State v. Gudenschwager, 191 Wis. 2d 432, 529 N.W.2d 225 (1995).
Respectfully submitted,
_____ Dated _November 25, 2009_____
Kenneth
Leroy Driessen (pro se)
12022 N.
Co. Rd. T
Hayward
WI 54843
715-634-2801
wiscokidd@hotmail.com
