On Point: 3. Evidence

State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)

The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

Little Chute Village Municipal Court v. Dennis M. Falkosky, 2015AP770, District 3, 9/22/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The trial court didn’t err by refusing to modify the standard OWI jury instruction, Wis. J.I.—Criminal 2668, by taking out language giving blood alcohol test results prima facie effect as to the defendant’s BAC at the time of driving and replacing the language with the instruction addressing the blood alcohol curve, Wis. J.I.—Criminal 234.

State v. James Michael Warren, 2014AP792-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), which was the law at the time of Warren’s arrest, a person must present their reasonable objection and the basis for the objection at the time of the blood draw, and failure to do so means the person can’t raise it later in the case.

Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.

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?