On Point blog, page 230 of 485
Complaint was sufficient to establish probable cause for operating controlled substance OWI
State v. Jeffrey D. Marker, 2013AP2725-CR, District 2, 3/26/14; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court erred in dismissing a complaint charging Marker with operating under the influence of a controlled substance because the complaint was sufficient to establish probable cause, applying Lofton v. State, 83 Wis. 2d 472, 478, 266 N.W.2d 576 (1978). After police received a tip about a reckless driver,
Police had reasonable suspicion to stop OWI defendant
State v. Jesse A. Van Camp, 2013AP2059-CR, District 3, 3/25/14; court of appeals decision (1-judge; ineligible for publication); case activity
Although an “[a]dmittedly … close case” (¶15), police had reasonable suspicion to stop Van Camp under all the circumstances, including his “somewhat evasive” driving behavior, even though they observed no specific criminal activity, applying State v. Anderson, 155 Wis. 2d 77, 84,
Defendant’s rights to free speech and religious freedom were not violated by prosecution for conspiracy to commit child abuse based on his preaching the use of the rod for child discipline
State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity
The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.
Suppression of evidence is not a remedy for violation of sec. 968.255 authorizing strip searches
State v. Jimmie G. Minett, 2014 WI App 40; case activity
Issue: Whether under State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611, suppression of evidence discovered during a strip search may be a remedy for violation of § 968.255?
Holding: “No,” said the court of appeals. Popenhagen simply abrogated case law that prohibited the circuit court from suppressing evidence obtained in violation of a statute when the statute does not expressly require suppression.
“High crime area”; “recognizing police presence”; “security adjustment”: Buzz phrases not enough to justify Terry stop
State v. Patrick E. Gordon, 2014 WI App 44; case activity
The circuit court’s findings—Gordon was in a high-crime area; he and his friends “recognized the police presence”; and, as a result, Gordon engaged in a “security adjustment,” which is “a conscious or unconscious movement that an individual does when they’re confronted by law enforcement when they’re typically carrying a weapon” and involves placing a hand over the place the gun is to make sure it’s still there (¶¶3-7,
Trial court’s failure to explain reasons for sentence saved by postconviction remarks
State v. Venceremos Crump, 2013AP2163-CR, District 1, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court articulated its reasons for the sentence imposed on Crump as required by State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, in light of the court’s comments in its order denying Crump’s postconviction motion, where it explicitly addressed the three primary sentencing factors and applied those factors to the facts of Crump’s case.
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),