On Point: Published 2004

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays

Issue/Holding: Warrantless blood draw incident to arrest is authorized by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993) and State v. Seibel, 163 Wis. 2d 164, 471 N.W.2d 226 (1991), even if the arrest is for a non-drunk-driving offense (if the police reasonably suspect that the defendant’s blood contains evidence of a crime).

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays

Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:

¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation,

State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta

Issue/Holding:

¶26. Cash also argues that Grable was ineffective for failing to seek suppression of certain statements he made on the basis that his arrest in his home was accomplished without an arrest warrant. Cash argues that his arrest was unlawful pursuant to Payton v. New York, 445 U.S.

State v. Robert A. Ragsdale, 2004 WI App 178, PFR filed 8/5/04
For Ragsdale: Timothy T. Kay

Issue: Whether an occupant’s consent to search his home “as long as he was present” limited an officer’s authority to question the occupant’s three-year-old son apart from his father, and thus inhibit the officer’s recovery of an illicit weapon based on information received from the child.

Holding:

¶10.

State v. Tabitha A. Sherry, 2004 WI App 207, PFR filed 11/19/04
For Sherry: Craig R. Day

Issue/Holding:

¶15. Sherry next argues that, regardless whether the officer legally stopped her car, the subsequent warrantless non-consent search of her car was illegal. An automobile may be searched without a warrant if there is probable cause to search the vehicle and the vehicle is readily mobile. 

State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn

Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.
Holding:

¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”

State v. John R. Maloney, 2004 WI App 141, affirmed on other grounds, 2005 WI 74
For Maloney: Lew A. Wasserman

Issue/Holding:

¶11. The trial court held that there had been no violation of SCR 20:4.2 and that even if there had been, suppression would not be the remedy. We agree with the trial court that suppression is not available for an ethics violation.

State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta

Issue/Holding: Any violation of § 175.40(6), which regulates the arrest power of an officer operating outside territorial jurisdiction would not support suppression as a remedy:

¶30. Assuming arguendo that the Waukesha County Sheriff’s Department had not adopted the written policies required by Wis. Stat. § 175.40(6)(d), we agree with the State that suppression is not a remedy for such a statutory transgression.

State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis

Issue/Holding:

¶10. The State does not dispute that it failed to bring Lewis’s case to trial within 120 days after the district attorney’s office received his request for prompt disposition of his case. …

¶11. The statute mandates that when the case is not brought to trial within 120 days,

State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek

Issue/Holding:

¶27                        Here, it is true that the delinquency petition, though filed in court, was never in Aufderhaar’s hands before the waiver hearing took place.  However, at the time of the hearing, Aufderhaar is presumed to have had notice that such a petition existed because the notice of waiver hearing was sent to his correct Montana address before the waiver hearing and that notice was never returned as undeliverable.