On Point blog, page 229 of 483
Deadline for requesting refusal hearing runs from the date the driver — not the court — received notice of intent to revoke
Oconto County v. Robert E. Hammersley, 2013AP1263, District 3, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity
The 10-day time period to request a refusal hearing under § 343.305(10)(a) begins when the driver receives a copy of the notice of intent to revoke, not when the court receives a copy. Thus, where a notice of intent to revoke was filed in the circuit court well after the statute’s 10-day time limit had elapsed,
Suspension of visitation while TPR was pending did not violate due process
State v. Delano W., 2013AP2445 & 2013AP2446, District 1, 3/14/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP2445; 2013AP2446
The trial court did not violate Delano’s due process rights and properly exercised its discretion when it prohibited Delano from visitation with his children pending the trial on a petition to terminate his parental rights to those children.
Under § 48.42(1m),
Broken tail light, glassy eyes, and a wee wobble amount to probable cause for administering preliminary breath test
State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity
This was a potentially interesting Daubert case. The police stopped the car Litke was driving because a tail light was out. The officer noticed Litke’s bloodshot eyes and asked if he had been drinking. “Yes, a few beers,” Litke replied. The officer thus conducted 3 field sobriety tests: the Horizontal Gaze Nystagmus test (which Litke flunked),
Counting out-of-state “zero tolerance” OWI violations as prior offenses doesn’t violate Equal Protection Clause
State v. Daniel M. Hirsch, 2014 WI App 39; case activity
The equal protection clause isn’t violated by § 343.307(1)(d)‘s differing treatment of Wisconsin and out-of-state” zero tolerance” OWI offenses (which penalize drivers under the legal drinking age who drive with any alcohol concentration).
Hirsch had two prior driver’s license suspensions for violation Illinois’s zero tolerance law. Under § 343.307(1)(d),
CHIPS petition failed to establish probable cause that child is in need of protection and services
John M.S. v. Marcy J.S., 2013AP2644-FT, District 2, 3/12/14; court of appeals decision (1-judge; ineligible for publication); case activity
Father’s petition under § 48.13(4) was insufficient because it fails to provide reliable and credible information and contain facts alleging that (1) the child “is in need of protection or services which can be ordered by the court” and (2) the parent “is unable or needs assistance to care for or provide necessary special treatment or care” for the child,
Stipulation to finding of contempt and purge conditions precludes appeal
Town of Stettin v. Hoeppner, Appeal No. 2103AP1201, 3/11/14, District 3 (1-judge, ineligible for publication); case activity
The Hoeppners found themselves on the wrong side of an action seeking judicial enforcement of certain town ordinances. When they settled the case, they stipulated to a finding that they were in contempt and to the conditions they had to perform in order to purge the contempt. Then they failed to purge their contempt,
Trial counsel was not ineffective for failing to challenge photo array evidence or object to alleged prosecutorial misconduct
State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity
James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:
- Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’
Discovery violation didn’t require mistrial, and evidence was sufficient to support possession of firearm conviction
State v. Francisco Luis Canales, 2013AP1435-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity
Though the state violated its discovery obligation by failing to disclose multiple computer-aided dispatch (CAD) reports describing 9-1-1 calls regarding the incident, the circuit court did not erroneously exercise its discretion in denying Canales’s motion for mistrial after the discovery violation came to light.
A mistrial is appropriate only when there is a “manifest necessity,” for “the law prefers less drastic alternatives,
Even if officer’s opening of vehicle door was an unreasonable search, evidence obtained would have inevitably been discovered
State v. Mitchell M. Treiber, 2013AP2684-CR, District 3, 3/11/14; court of appeals decision (1-judge; ineligible for publication); case activity
The inevitable discovery doctrine, which provides that “evidence obtained during a search which is tainted by some illegal act may be admissible if the tainted evidence would have been inevitably discovered by lawful means,” State v. Lopez, 207 Wis. 2d 413, 427, 559 N.W.2d 264 (Ct.
Prosecutor’s improper opening statement didn’t show intent to provoke mistrial, so defendant can be retried
State v. Nancy Jean Wall, 2013AP787-CR, District 4, 3/6/14; court of appeals decision (not recommended for publication); case activity
The prosecutor’s reference during opening statement that Wall’s BAC was over the legal limit of 0.02, despite a stipulation designed to keep that threshold from being referred to during trial, was not intended to provoke a mistrial. Therefore, the circuit court’s dismissal of the charges was erroneous.
Wall,