On Point: 3. Evidence

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).

County of Sauk v. Thomas D. McDonald, 2014AP1921, District 4, 5/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)

McDonald was arrested for OWI and taken to the county jail, where his blood was drawn by a paramedic employed by the city’s ambulance service. Contrary to McDonald’s claims, his blood draw was constitutionally reasonable and the paramedic who performed the blood draw was a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

Village of DeForest v. Michael Brault, 2014AP2398, District 4, 4/16/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Brault’s challenge to the sufficiency of the evidence for his conviction for OWI 1st is frivolous, so sanctions under Rule 809.25(3) are appropriate.

City of Sheboygan v. Nathan J. Becker, 2014AP1991, District 2, 2/11/15 (1-judge decision; ineligible for publication); case activity (including briefs)

After police stopped Becker because of erratic driving at 11:30 p.m. on July 4 they observed additional evidence of impairment—glassy eyes, slurred speech, odor of alcohol. Becker admitted he’d been drinking and turned in a mixed performance on the FSTs. Under the totality of the circumstances, the officer had probable cause to ask Becker for a preliminary breath test under § 343.303 and County of Jefferson v.

State v. Cassius A. Foster, 2014 WI 131, 12/26/14, affirming a court of appeals summary disposition; majority opinion by Justice Crooks; case activity

State v. Alvernest Floyd Kennedy, 2014 WI 132, 12/26/14, affirming an unpublished court of appeals decision; majority opinion by Justice Gableman; case activity

State v. Michael R. Tullberg, 2014 WI 134, 12/26/14, affirming a per curiam court of appeals decision; majority opinion by Justice Ziegler; case activity

In these three cases, the supreme court addresses two issues arising from Missouri v. McNeely, 133 S. Ct. 1552 (2013): If a blood draw was conducted before McNeely in reliance on State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), does the good-faith exception to the exclusionary rule mean the test results should not be suppressed? And, if the dissipation of alcohol by itself doesn’t constitute exigent circumstances justifying a warrantless blood draw, what circumstances do establish such an exigency? Foster and Kennedy hold that the good-faith exception applies to pre-McNeely searches. Tullberg addresses the second question.

Consolidated review of two published court of appeals decisions: State v. Weissinger, 2014 WI App 73 (case activity); and State v. Luedtke, 2014 WI App 79 (case activity)

Issues (composed by On Point)

In light of State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, does the Wisconsin Constitution provide greater due process protection than the federal constitution, such that defendants charged with operating with a detectable amount of a controlled substance in their blood are denied due process under the Wisconsin Constitution when their blood samples are destroyed before the defendants had notice of the charges or test results and thus had no chance to get the blood independently tested?

Does the offense of operating with a detectable amount of controlled substances in the blood violate due process by failing to require the state to prove that the defendant knowingly ingested the controlled substance?

City of Tomah v. Steven Seward, 2014AP735, District 4, 9/25/14 (1-judge; ineligible for publication); case activity

Applying State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, the court of appeals holds there was reasonable suspicion to stop Seward based on a police officer’s observations of his weaving within his lane of travel for about one mile at 11:34 p.m.

State v. Victor J. Godard, 2014AP396-CR, District 4, 8/28/14 (1-judge; ineligible for publication); case activity

The arresting officer provided Godard with accurate information about the implied consent law and thus did not cause Godard to refuse to submit to the implied consent blood test or deny him his right to a second test.

State v. Todd J. Giese, 2014 WI App 92; case activity

Expert testimony regarding retrograde extrapolation of Giese’s blood alcohol concentration is admissible under new version of § 907.02(1) despite the fact some experts doubt its reliability because it was the product of reliable principles and methods and based upon sufficient facts and data.

State v. Jessica M. Weissinger, 2014 WI App 73, petition for review granted 10/15/14, affirmed, 2015 WI 42; case activity

Saying it is bound by the rule from Youngblood v. Arizona, 488 U.S. 51 (1988), the court of appeals holds that the state’s destruction of a blood sample before the defendant was notified of her option to test the sample did not violate her due process rights because she has not shown the sample was “apparently exculpatory.” A vigorous dissent says the majority reads Youngblood too broadly, and concludes that because the evidence was inculpatory and necessary to the prosecution, destroying the evidence violated Weissinger’s due process rights even if the state didn’t act in bad faith.