On Point: Published 2020

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.

Winnebago County v. S.H., 2020 WI App 46; case activity

The court of appeals rarely publishes opinions in “fast track” cases. It took that unusual step here. The opinion strives to show the type of evidence that is sufficient for a recommitment even though the mentally ill person has taken all of her medication and has maintained stable housing and employment for two years.

State v. Mark J. Bucki, 2020 WI App 43; case activity (including briefs)

[UPDATED POST – Scroll to the bottom for very useful commentary by Chris Zachar. Many thanks to him for sharing his knowledge.]

The headline tells you the only legal proposition you need to take from this soon-to-be-published case: under Daubert, evidence that trained dogs indicated the defendant had been at a particular location, and also that there had once been human remains in other locations, is not subject to a per se rule requiring corroboration before it can be admitted at trial. In a given case, a circuit court could conclude that particular dog-sniff evidence is not sufficiently reliable to come in (with or without corroboration). But Bucki’s argument–that dog-sniff evidence is so inherently unreliable that it necessarily requires corroboration–is rejected. We read the 50-page opinion, so you don’t have to.

State ex rel. Jamie A. Coogan v. Steven R. Michek, Sheriff, Iowa County, 2020 WI App 37; case activity (including briefs)

A jail’s classification system can’t supersede a sentencing judge’s grant of Huber release.

On May 27, 2020, the court of appeals ordered the publication of the following cases decided in April and May (as there was no April publication list):

State v. Adam W. Vice, 2020 WI App 34, petition for review granted 8/30/20, reversed, 2021 WI 63; case activity (including briefs)

This is a “recommended for publication”, split court of appeals opinion where the State lost in a child sexual assault case. In other words the State will surely petition for review, and SCOW will take it. Applying State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, the majority held that the defendant’s polygraph test and the confession were two discrete events, but based on the facts of this case, the confession was involuntary. The dissent by Judge Hruz would hold the confession voluntary.

State v. Troy R. Lasecki, 2020 WI App 36; case activity (including briefs)

Wonders never cease. The State charged Lasecki with 2 counts of failure to return security deposits to tenants in violation of Wis. Admin Code. §ATCP 134.06(2) and §§100.20(2) and 100.26(3)(2013-3104). Lasecki proceeded pro se at trial, and a jury convicted  on both counts. His appeal drew amicus briefs from the Apartment Ass’n for Southeastern Wisconsin, the Univ. of Wis. Law School and from the Attorney General  about whether the statute and code criminalized the failure to return rent. Answer: “yes.” but Lasecki won anyway because the jury instructions were erroneous and the court erred in ordering restitution above the victim’s pecuniary losses.

Eau Claire County DHS v. S.E., 2020 WI App 39, petition to review granted, 10/21/20, affirmed, 2021 WI 56; case activity

Following up on the decision issued in Dane County DHS v. J.R., 2020 WI App 5, the court of appeals rejects some additional challenges to the changes 2017 Wis. Act 256 made to the continuing CHIPS ground for terminating parental rights.

State v. Tavodess Matthews, 2020 WI App 33; case activity (including briefs).

Section 801.58(1) states that if a party to a civil action files a judicial substitution request “preceding the hearing of any preliminary contested matter” and not later than 60 days after service of the summons and complaint then the request must be granted.  A “preliminary contested matter” refers to a “substantive issue” going to”the merits of the case.” The court of appeals holds that a motion to adjourn a probable cause hearing  in a Chapter 980 case fits that bill.