On Point blog, page 90 of 214
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.
Warrants – “Franks” Hearing
State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes
Issue/Holding: Immaterial differences of memory don’t establish the “deliberate falsity or reckless disregard” for truth required to trigger a Franks hearing, ¶¶17-21; nor is such a hearing mandated in the absence of specific request, ¶22.
Warrants – Good Faith
State v. Christopher D. Sloan, 2007 WI App 146
Issue/Holding:
¶26 The trial court here did not find a nexus in the affidavit between the items sought and the house to be searched. Nonetheless, the trial court concluded, in deference to the judge who signed the warrant, that “[t]here’s the good faith exception here. If I were confronted with this affidavit, I think I would have issued the warrant.”
¶27 … “Good faith” is not a doctrine that absolves the neutral and detached judge or magistrate from a careful,
Allocution – Timing of Exercise of Right – Remedy for Violation
State v. Quantae T. Hines, 2007 WI App 39
For Hines: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20.
The outcome is largely controlled by State v. John C. Brown, 2006 WI 131, which held that reconfinement is essentially a sentencing proceeding.