On Point: 3. Evidence

State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)

The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.

State v. Eric M. Doule, 2016AP1146-CR, District 3, 2/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The record supports the conclusion that Doule voluntarily consented to a blood draw after he was arrested for OWI.

Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review

Issues (composed by On Point):

1.  Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?

2.  Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”

State v. Ali Garba, 2015AP1243-CR, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Garba wanted to present testimony from two expert witnesses about possible reliability problems with the gas chromatography tests of his blood, but the circuit court wouldn’t let him. The court of appeals holds the circuit court properly exercised its discretion and rejects Garba’s claim the ruling violated his right to present a defense.

State v. Steven W. Heath, 2014AP2466-CR, District 4, 9/15/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Heath challenges the blood draw evidence in his OWI prosecution, claiming that the paramedic who did the draw wasn’t a “person acting under the direction of a physician” as required by § 343.305(5)(b) and that the method and manner of the blood draw was not constitutionally reasonable. The court of appeals rejects his claims.

State v. Lory F. Kerk, 2015AP2608-CR, District 3, 9/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court didn’t err in allowing the state to elicit testimony from its expert toxicologist that Kerk was impaired by the amount of alcohol and prescription drugs found in her blood.

State v. S.G./Waukesha County v. S.G., 2015AP2138 & 2015AP2139, District 2, 8/24/16 (one-judge decision; ineligible for publication); case activity (including briefs)

S.G. challenges the revocation of her driver’s license for refusal, arguing the arresting officer didn’t sufficiently convey the implied consent warnings to her. She also challenges the sufficiency of the evidence for her OWI conviction. Neither challenge succeeds.

Village of Bayside v. Amber E. Schoeller, 2016AP256 & 2016AP257, District 1, 8/9/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court’s factual findings—which Schoeller doesn’t argue are clearly erroneous—doom her claims that the officer didn’t have probable cause to arrest her and that the evidence isn’t sufficient to prove she’s guilty of OWI.

State v. Alejandro Herrera Ayala, 2015AP865-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals affirms the circuit court’s findings that the manner in which standardized field sobriety tests were administered to Herrera Ayala was “fatally flawed” because of “significant communication issues” between the officer and Herrera Ayala (a Spanish speaker with apparently limited English) and that those flaws made the SFSTs “unreliable” for purposes of determining probable cause to arrest. 

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.