On Point blog, page 111 of 261
COA affirms finding of probable cause to arrest for OWI and improper refusal to submit to a blood test
State v. Dustin R. Willette, 2017AP888, District 3, 2/6/18 (1-judge opinion, ineligible for publication); case activity (including briefs)
A police dispatcher informed officer Hughes that a caller saw a man drive into gas station, exit his car, and walk away. Then another officer reported seeing a similarly-dressed man walking down the a road about a mile away. That man was Willette. Officer Hughes picked him up, drove him back to the car at the gas station, performed FSTs, arrested him for OWI, and asked him to submit to a blood test. Willette did not say “yes” or “no.” He said “I want to speak to a lawyer.” Here’s why the circuit court found probable cause to arrest and improper refusal to submit to a blood test.
Court of appeals holds that expunged OWI 1st counts as prior conviction for penalty enhancer
State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113; case activity (including briefs)
Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?
Defense win on sufficiency of evidence for conspiracy to deliver THC and on mootness!
State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)
A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC. Conviction reversed!
COA: Circuit court didn’t err in deciding record had been reconstructed
State v. Morris Rash, 2016AP2494-CR, District 1, 1/30/18 (not recommended for publication); case activity (including briefs)
Morris Rash was convicted of substantial battery and being a felon in possession of a firearm after a jury trial. When it came time for postconviction proceedings and/or an appeal, it turned out that some photographs used as exhibits at the trial were not in the court record.
Probation extension passes due process muster
State v. Daniel E. Olsen, 2017AP918-CR, District 4, 1/25/18 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)
At the request of DOC, the circuit court extended Olsen’s probation by one year and increased his monthly restitution payment. His challenges to the court’s orders fail.
An unconstitutional application of the 5th standard of dangerousness?
Outagamie County v. C.A., 2017AP450, District 3, 1/23/18 (1-judge opinion, ineligible for publication); case activity
The records for Chapter 51 cases are confidential, so we have not seen the briefs for this case. But, judging from this court of appeals opinion, it doesn’t take much beyond a mental illness diagnosis to get yourself committed under §51.20(1)(a)2e, Wisconsin’s 5th standard of dangerousness. A little unsubstantiated hearsay about your frustration with the justice system just might do the trick.
There was reasonable suspicion to administer field sobriety tests after “fender bender”
Milwaukee County v. Nicholas O. Moran, 2017AP1047 & 2017AP1048, District 1, 1/23/18 (one-judge decision; ineligible for publication); case activity (including briefs)
The totality of the circumstances provided reasonable suspicion to believe Moran was operating while intoxicated, so police were justified in continuing to detain Moran to conduct field sobriety tests.
No erroneous exercise of discretion in TPR
State v. M.D.W., 2017AP1945 & 1946, 1/23/18, District 1 (one-judge decision; ineligible for publication); case activity
M.D.W. appeals only the disposition in the TPR of her two children. She argues that the court erred in its consideration of the statutory factors. The court of appeals disagrees.
Officer had reasonable suspicion to extend traffic stop
Dane County v. Brenna N. Weber, 2017AP1024, District 4, 1/11/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Weber was legitimately stopped for speeding, but argues there was insufficient basis for the officer to extend the traffic stop to conduct field sobriety tests. The court of appeals holds the totality of the circumstances justified the continued detention.
Once again, FTA leads to TPR
State v. A.S., 2017AP1349, District 1, 1/9/18 (one-judge decision; ineligible for publication); case activity
The circuit court properly exercised its discretion in refusing to adjourn the disposition hearing in A.S.’s termination of parental rights proceeding after A.S. failed to appear, and the subsequent termination order didn’t violate A.S.’s rights to be present and to participate in the hearing.