On Point blog, page 162 of 215
Fleeing, § 346.04(3) – Elements
State v. Thomas P. Sterzinger, 2002 WI App 171
For Sterzinger: Steven P. Weiss, SPD, Madison Appellate
Issue1: Whether fleeing, § 346.04(3) requires proof that the defendant knowingly “interfere(d) with or endanger(ed)” another.
Holding1: Scienter is required, but is limited to a single element — knowingly flee or attempt to elude — and doesn’t extend to “interfere with or endanger.” ¶¶7-11.
Issue2: Whether fleeing,
OWI – Implied Consent – Threat to Revoke Driver’s License Arrest, Not Coercive
Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02
For Walitalo: Ralph A. Kalal
Issue/Holding:
¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation.
OWI – Implied Consent Law – Threat to Use Force
State v. Donald Marshall, 2002 WI App 73, PFR filed 2/28/02
For Marshall: Richard L. Zaffiro
Issue: Whether, after the OWI arrestee refused consent for a blood draw, the police could then obtain “consent” for the draw by threatening to use physical force.
Holding: Marshall’s argument that § 343.305(9)(a), by providing the exclusive police option for refusal, bans such a threat has been rejected by State v.
OWI – Due Process – pre-Refusal Hearing Revocation
State v. Michael J. Carlson, 2002 WI App 44, PFR filed 1/17/02
For Carlson: Christopher A. Mutschler
Issue: Whether Carlson was entitled to have his refusal charge dismissed with prejudice because his driver’s license was improperly revoked for nineteen days before he was granted a hearing.
Holding: Due process protections — with respect to a hearing before loss of particular interests — are afforded under Mathews v.
OWI – Implied Consent Law – Misleading Advice – Right of Refusal, § 343.305(9)
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt
Issue/Holding:
¶12 Baratka claims that he was not properly informed of his choices and was therefore unable to understand his rights regarding chemical testing. In order for Baratka to prove he was not adequately informed, he must show:
1. Has the law enforcement officer not met,
OWI – Sentencing – Differential, County-Based Guidelines
State v. Roland Smart, 2002 WI App 240
For Smart: Donald T. Lang, SPD, Madison Appellate
Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as “(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions.”
Double Jeopardy – Multiplicity: Car-Jacking (§ 943.23(1g)) and Operating without Owners Consent (§ 943.23(3))
State v. Prentiss M. McKinnie, 2002 WI App 82, PFR filed 3/14/02
For McKinnie: Bryan J. Borman, SPD, Waukesha Trial
Issue: Whether separate charges, of carjacking and operating the same motor vehicle without owner’s consent are permissible where, after allegedly taking the car, the defendant continued to drive it the next day.
Holding: Though these offenses are the same in law, under § 939.66(2r), the facts as alleged are distinct and therefore support separate charges in this particular instance:
¶11.
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Enhanced Penalties — Proof — Admission: More Required
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding:
¶5 An admission from a defendant stating, “I am a repeater,” without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. §973.12(1). As the circuit court indicated in its colloquy, “repeater” and “habitual offender” are legal, not factual terms, and a defendant may not be aware of what he or she is admitting.
Enhancer — § 973.01(2)(c), Bifurcated Sentence — Application to Extended Supervision — Remedy
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b).
Holding: Because specifies that “confinement” may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement.