On Point: B. Published opinions

On September 30, 2020, the court of appeals ordered publication of the following criminal law related decisions:

State v. Scott W. Heimbruch, 2020 WI App 68; case activity (including briefs)

When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read  the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.

State v. Peter J. King, 2020 WI App 66;  case activity (including briefs)

Packingham v. North Carolina, 137 S Ct. 1730 (2017) struck down a law making it a felony for a registered sex offender to use any social networking site that permits minors to become members or to create personal web page. The statute was so broad that it violated the 1st Amendment. See our post here. In this case, the court of appeals holds that Packingham’s reasoning does not apply to court-ordered conditions of extended supervision that sharply restrict a defendant’s access to the internet. 

On August 31, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Nathaniel R. Lecker, 2020 WI App 65; case activity (including briefs)

The application of a statute to undisputed facts is a question of law. This is an incontrovertible maxim of appellate review. “Question of law” sounds so august and erudite and specialized, doesn’t it? A question of law is a question into which an astute lawyer–or judge–would have special insight; he or she could be trusted to come to the right–or at least a particularly sound–answer to such a question. But sometimes statutes are written in very ordinary terms with no particular resonance, and no special definition, in the legal world. And sometimes these ordinary terms are also rather elastic–or relative. In those instances, can the answer to a “question of law” be something other than a standardless, “know it when I see it” exercise of arbitrary will?

State v. Morgan E. Geyser, 2020 WI App 58; case activity (including briefs)

Morgan Geyser, one of the two 12 year old defendants in the Slenderman case, was charged in adult court with attempted 1st degree intentional homicide. At her preliminary hearing, the court found probable cause that she committed a crime for which it had exclusive jurisdiction. On appeal, Geyser argued that the adult court had found the facts necessary to mitigate attempted 1st degree homicide to attempted 2nd degree homicide and thus it lost jurisdiction. She also argued that her custodial statements to police should have been suppressed because her Miranda waiver was not knowing, intelligent and voluntary. The court of appeals rejected both arguments.

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.

On July 29, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Dawn M. Prado, 2020 WI App 42 (striking down implied consent law for unconscious drivers)

State v. Mark J. Bucki, 2020 WI App 43 (dog sniff evidence need not be corroborated to be admissible)

Winnebago County v.

State v. Yancy Kevin Dieter, 2020 WI App 49; case activity (including briefs)

Dieter called 911 at about 6 in the morning and reported that he’d crashed his car after drinking at a bar. The crash happened about four hours before Dieter made the call; he was badly injured and the car’s other occupant was killed.

State v. Donnie Gene Richards, 2020 WI App 48; case activity (including briefs)

Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.