On Point: e. Overruled decision

Dane County v. Steven D. Koehn, 2012AP1718, District 4, 1/10/13

Court of appeals decision (1 judge; ineligible for publication); case activity

Motion to suppress evidence of intoxication properly denied because arresting officer had probable cause to administer a preliminary breath test. The court of appeals rejects Koehn’s claims that the officer’s failure to testify about the significance of the results of field sobriety tests means those results should have “minimal significance” in determining probable cause to administer the PBT:

¶10      I first conclude that,

State v. David W. Stevens, 2012 WI 97, affirming unpublished decision; case activity

Miranda-Edwards Rule – Invocation of Counsel, Initiation of Contact by Suspect

Where an in-custody suspect invokes his right to counsel and interrogation immediately ceases, but the suspect himself then initiates a request to continue the interrogation, the police may proceed with questioning if fresh Miranda warnings are given and validly waived. 

on petition for review of unpublished decision; for Stevens: Paul G. LaZotte, SPD, Madison Appellate; case activity

Issues (provided by court):

If a suspect in custody initiates communication with the police after previously invoking his Miranda right to consult with an attorney but has yet to again waive his Miranda rights, do the police violate the demands of Miranda by denying an attorney access to the suspect prior to the second waiver of his Miranda rights?

7th circuit court of appeals decision

Retroactive Application of Case Law, on Collateral Review

Narvaez’s federal ACCA enhancement, imposed in 2003, is now unsupportable in light of subsequently-decided Supreme Court authority (Begay v. U.S.; Chambers v. U.S.). He may therefore seek relief against the sentencing enhancement via 28 U.S.C. § 2255: the case law development worked a change in “substantive liability”

Columbia County v. Fred A. Ederer, 2010AP2369, District 4, 5/12/11

court of appeals decision (1-judge, not for publication); for Ederer: John Smerlinski; case activity

Ederer’s no contest plea waived his right to appeal suppression issue in this OWI-1st (therefore, civil) case. His reliance on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995) (court should consider 4-factor test in determining whether to impose waiver bar) is misplaced:

¶5        Ederer acknowledges that Quelle was partially overruled on other grounds by Washburn County v.

Adam Martine v. Quentin J. Williams, 2011 WI App 68 (recommended for publication); case activity

¶13      Prior to last year, this court applied a general rule regarding court of appeals’ cases reversed by the supreme court that “holdings not specifically reversed on appeal retain precedential value.”  Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶44, 326 Wis. 2d 729, 786 N.W.2d 78 (citation omitted).  

Richardson v. Henderson, 2010AP1765, District 2, 3/9/11

court of appeals decision (1-judge, not for publication); case activity

¶7, n.4:

Our supreme court has held that “when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.”  Blum v. 1st Auto & Cas. Ins. Co.

Blum v. 1st Auto & Casualty Insurance Company, 2010 WI 78

¶42 We next address whether a court of appeals decision retains any precedential value when it is overruled by this court. We hold that when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.

A less obscure problem than you might think.

State v. Gary M.B., 2003 WI App 72, affirmed on other grounds, 2004 WI 33
For Gary M.B.: T. Christopher Kelly

Issue/Holding: A court of appeals holding in a case reversed by the supreme court on other grounds, so that this holding was neither “overruled, withdrawn, or modified,” continues to bind the court of appeals. ¶13.

The court of appeals had held under similar circumstances to Gary M.B.’s that defensive use didn’t trigger waiver,