On Point blog, page 246 of 483
OWI — Probable cause to request preliminary breath test; admissibility of evidence of defendant’s refusal to take the test
State v. Raylene A. Brinkmeier, 2013AP15-CR, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity
The police had probable cause under § 343.303 to request Brinkmeier to submit to a preliminary breath test (PBT):
¶13 Contrary to Brinkmeier’s argument, the evidence supporting probable cause in this appeal does not differ significantly from the evidence in [County of Jefferson v.
Field sobriety tests may be a “search” under the Fourth Amendment, but that doesn’t change the legal standard governing when an officer may request they be performed
Town of Freedom v. Matthew W. Fellinger, 2013AP614, District 3, 8/6/13; court of appeals decision (1-judge; ineligible for publication); case activity
Fellinger argues that field sobriety tests are searches under the Fourth Amendment because “[a]n inherent right as a human being is to control and coordinate the actions of [his or her] own body[,]” and, therefore “a fundamental expectation of privacy is implicated when a person is subject to the performance of [field sobriety tests].” (¶12).
State v. Joseph J. Spaeth, 2012AP2170, District 2, 7/31/13
Court of Appeals certification, review granted 11/26/13; case activity
Issue certified:
Wisconsin Stat. § 980.02(1m) and (2) require that a commitment petition be filed “before the person is released or discharged” and allege that a person has been convicted of a sexually violent offense. Does § 980.02 additionally require that the commitment petition be filed before the person is released or discharged from a sentence that was imposed for the same sexually violent offense that is alleged in the petition as the predicate offense,
Court of Appeals: Pattern jury instruction on self-defense for reckless or negligent crimes does not provide a proper statement of the state’s burden of proof
State v. Langston C. Austin, 2013 WI App 96; case activity
In this important case the court of appeals holds that the pattern jury instruction for self-defense in cases involving reckless or negligent crimes does not properly apprise the jury that the state has the burden to prove the defendant did not act in self-defense.
Austin stabbed two people during a confrontation on a street and was charged with two counts of first-degree recklessly endangering safety with a dangerous weapon.
Terry stop was unlawful because there was no reasonable suspicion to believe defendant was loitering or dealing drugs
State v. Ryan Erik Diggins, 2012AP526-CR, District 1, 7/30/13; court of appeals decision (not recommended for publication); case activity
There was no objectively reasonable suspicion that Diggins was loitering in violation of Milwaukee’s loitering ordinance, § 106-31(1), where Diggins was seen standing for five minutes, doing nothing, at a gas station– “a place to which the public is invited”–and then moved across the street to a bus stop–“another equally public place”–even though both places were in a high crime area:
¶13 Here,
Yet another take on how to structure bifurcated sentences for an enhanced misdemeanor
State v. Gabriel Griffin, 2012AP2631-CR, District 1, 7/30/13; court of appeals decision (1-judge; ineligible for publication); case activity
Agreeing with State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App Nov. 3, 2009) (unpublished), and State v. Ash, No. 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), that there is a conflict in § 973.01 which affects the structure of enhanced misdemeanor sentences,
Conspiracy — sufficiency of evidence; propriety of response to jury question; multiplicitousness of conspiracy and solicitation charges. Sentencing — erroneous exercise of discretion in imposing fine
State v. Ronnie L. Thums, 2012AP929-CR, District 4, 7/25/13; court of appeals decision (not recommended for publication); case activity
Sufficiency of evidence of conspiracy
Thums was charged with offering money to Trepanier, a fellow prison inmate, to kill Thums’s ex-wife and others associated with her. (¶2). In response to Trepanier’s questions about how he’d be paid, Thums told Trepanier to burglarize his ex-wife’s mother’s home and then drew a map depicting the location of that home and his ex-wife’s home.
County ordinance prohibiting squealing of tires not unconstitutionally vague, so traffic stop based on suspicion of violation of ordinance was reasonable
State v. Michael E. Mauermann, 2012AP2568-CR, District 4, 7/25/13; court of appeals decision (1-judge; ineligible for publication); case activity
Iowa County Ordinance § 600.08 provides that “[n]o person shall operate a motor vehicle so as to make any loud, disturbing or unnecessary noise in or about any public street, alley, park or private residence which may tend to annoy or disturb another by causing the tires of said vehicle to squeal,
Refusal — sufficiency of evidence that officer conveyed implied consent warnings
State v. Randel R. Clark, 2012AP2661, District 4, 7/25/13; court of appeals decision (1-judge; ineligible for publication); case activity
The record supports the circuit court’s conclusion that the police officer used reasonable means to convey the necessary implied consent warnings to Clark under the standard in State v. Piddington, 2001 WI 24, ¶24, 241 Wis. 2d 754, 623 N.W.2d 528, despite Clark’s claims he couldn’t hear the officer,
TPR — continuing CHIPS; sufficiency of the evidence that parent will likely not meet the required conditions for return of the child
Kenosha County DHS v. Debra S.A., 2013AP318, District 2, 7/24/13; court of appeals decision (1-judge; ineligible for publication); case activity
In a fact-dependent decision that applies the well-established sufficiency standard (¶10), the court concludes the evidence at the fact-finding hearing permitted the trier of fact to conclude that Debra had not complied with requirements that she actively participate in mental health services and successfully complete and demonstrate an understanding of the principles taught in a parenting program and that she would not meet these conditions within nine months.