On Point blog, page 360 of 484
OWI – Second or Subsequent Offense – Out-of-State Administrative (Non-Refusal) Suspension Doesn’t Qualify
State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly
Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:
¶12 After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement,
Hit-and-Run, § 346.67(1)(a) – Elements – Operator ID
State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett
Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:
¶13 Applying these principles, we conclude the only reasonable meaning of Wis.
Hit & Run, § 346.67(1) – Elements – “Highway”
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: The definition of “highway” for purposes of the hit-and-run statute, § 346.67(1), is found in § 340.01(22), ¶ n. 3.
Hit & Run, § 346.67(1) – Elements – “Accident” Occurring on “Highway,” and Relation to Private Property
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue: Whether hit-and-run liability attaches to an accident occurring on private property.
Holding:
¶13 In this case, as already noted, we are concerned with the meaning of “accident” in Wis. Stat. § 346.67(1) in conjunction with the requirement of “upon the highway” in Wis. Stat.
Implied Consent – Test for Adequacy of Warning, Generally
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding:
¶7 … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8 … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.
Refusal, § 343.305(9) and Implied Consent Law – Interaction with Miranda Warnings
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):
¶14 There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused.
OWI – “Materially Impaired” – Judicial Construction, State v. Waalen, Absorbed into Elemental Meaning
State v. Jonathan J. Hubbard, 2007 WI App 240, (AG’s) PFR filed 11/20/07
For Hubbard: Steven Zaleski
Issue/Holding: The construction of “materially impaired” by State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), clarifies the meaning of that OWI element:
¶9 In Waalen, … (t)he court stated that material impairment “exists when a person is incapable of driving safely,
Enhancer – Timing of Prior Conviction – Tolling During “Intensive Sanctions”
State v. Steven L. Pfeil, 2007 WI App 241
For Pfeil: John P. Tedesco, SPD, Madison Appellate
Issue/Holding: Time spent in custody of the (now-lapsed) division of intensive sanctions tolls the limitation period for prior convictions, § 939.62(2):
¶2 …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution,
Due Process – Identifcation Procedure – Photo Array: Analysis Unchanged by Dubose Show-up Standard<
State v. Ryan W. Drew, 2007 WI App 213, PFR filed 9/27/07
For Drew: Steven Zaleski
Issue/Holding: Analysis of admissibility of photo array ID remains unchanged by the new standard for show-ups set by State v. Tyrone L. Dubose, 2005 WI 126:
¶2 We conclude that Dubose did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due process.
Due Process – Right to Present Defense – Misconduct in Public Office, § 946.12(3) – Intent to Obtain Dishonest Advantage – Testimony of Long-Standing Legislative Practice
State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89,affirmed, 2005 WI 31
For Jensen: Robert H. Friebert, Matthew W. O’Neill
Issue/Holding:
¶36 We agree with the State that the testimony of Jensen’s defense witnesses as to the practices of both Democrats and Republicans in the legislature of using state resources for campaign purposes is not relevant to show whether Jensen intended to obtain a dishonest advantage by doing the same.