On Point: B. Published opinions

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.

State v. Alan M. Johnson, 2020 WI App 50, state’s petition for review granted, 9/16/20, affirmed in part, reversed in part, 2021 WI 61; case activity (including briefs)

Johnson killed his brother-in-law, K.M., while he was in K.M.’s house, uninvited, to look to see whether K.M. had child porn on his computer. The court of appeals orders a new trial for Johnson because the trial court erred in denying Johnson’s perfect self-defense instruction and lesser-included offense instruction and in excluding evidence that there was, in fact, child porn on K.M.’s computer.

State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)

The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.

State v. David M. Hay, 2020 WI App 35; case activity (including briefs)

Hay was pulled over in the early morning and blew a .032 on the PBT. He had several drunk-driving priors, so it would be illegal for him to drive with a BAC over .02. The officer never sought a warrant; instead he searched the car (though another officer on-scene could have done that), waited for another officer to show up to “sit” with the vehicle until a tow truck came, then headed to the hospital with Hay. Only then–about an hour after the initial stop–did the officer ask Hay whether he’d agree to a blood test. When Hay refused, the officer, in consultation with an ADA, decided the situation was exigent. The thinking was that given the low PBT result, further passage of time might reduce Hay’s BAC to .00 thus and make a blood test useless as evidence. So, the officer ordered a warrantless blood draw. Because there was only one phlebotomist in the hospital, that draw didn’t actually happen until 35 minutes had passed. Hay had no alcohol in his blood, but there was cocaine, so he was charged with the “restricted controlled substance” variety of OWI. He moved for suppression, the circuit court granted it, and the state appealed.

On June 24, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Tavodess Matthews, 2020 WI App 33 (motion to adjourn a probable cause hearing is a “preliminary contested matter” under judicial substitution statute)

State v. Adam W. Vice, 2020 WI App 34 (confession given after polygraph ordered suppressed)

State v.

State v. Dawn J. Levanduski, 2020 WI App 53; case activity (including briefs)

This published decision resolves an issue arguably left open by Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).  The court of appeals holds that when an officer reads Wisconsin’s “Informing the Accused” form to an OWI suspect, and she refuses a blood draw, her refusal can be used against her at her OWI trial.

State v. Dawn M. Prado, 2020 WI App 42, cross petitions for review granted, 10/21/20, affirmed, 2021 WI 64; case activity (including briefs)

They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.