On Point blog, page 1 of 8
Using umbrella for a snow shovel arouses suspicion of intoxication; COA affirms conviction for operating with prohibited alcohol concentration and refusing PBT.
City of Monona v. Erick J. Erickson, 2024AP312, District IV, 5/30/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed Erick J. Erickson’s conviction following a bench trial for operating with a prohibited alcohol concentration and revocation of his operating privileges because he unreasonably refused to submit to a preliminary breath test (PBT). COA found that the circuit court correctly denied Erickson’s motion to suppress because police had probable cause to request the PBT and probable cause to arrest Erickson.
Defense win: COA concludes it was improper to order IID after dismissal of refusal citation
State v. Devron Michael Green, 2024AP1104, 3/5/25, District II (1-judge decision, ineligible for publication); case activity
In an interesting statutory construction appeal, COA concludes it was improper for circuit court to order an IID in conjunction with an OWI-1st citation when the accompanying refusal was dismissed and no findings were made under the refusal statute.
COA: police had probable cause to arrest for OWI after finding a “crashed” motorcycle and unconscious person nearby
State v. Peter John Long, 2023AP2300, 2/26/25 District II (one-judge decision; ineligible for publication); case activity
Long appeals pro se from his refusal conviction, contending the officer lacked probable cause to arrest for OWI. COA affirms.
COA rejects pro se challenges to OWI 1st and refusal convictions
City of Rhinelander v. Zachary Tyler LaFave-LaCrosse, 2020AP1120 & 1121, 1/7/25, District III (one-judge decision; ineligible for publication); case activity
LaCrosse appeals pro se from the circuit court judgments, entered after a bench trial, convicting him of first-offense operating a motor vehicle while intoxicated (OWI) and refusing to submit to a chemical test for intoxication. COA rejects all his arguments and affirms.
COA: Driver misinformed he would be charged with first-offense OWI did not have right to refuse breath test; Ignition Interlock statute does not violate Dormant Commerce Clause when applied to out-of-state resident.
State v. Sharpe, 2021AP1543 & 2022AP307, 9/24/24, District III (one-judge decision; ineligible for publication); case activity here and here
COA determines defendant arrested for OWI did not meet burden to show that he was unable to make knowing and intelligent choice about submitting to breath test when officers misinformed him that he would be charged with a first-offense OWI. COA rejects facial and as-applied challenge to IID statute based on Dormant Commerce Clause.
COA rejects challenges to refusal finding; holds that refusal statute is not unconstitutional
State v. Albert A. Terhune, 2023AP353, 9/19/24, District IV (1-judge decision, ineligible for publication); case activity
In a somewhat complicated OWI appeal, COA ultimately affirms under well-settled legal standards.
COA affirms circuit court’s decision to exclude evidence at refusal hearing; although officer’s statements to defendant during traffic stop were relevant, they were inadmissible when offered through another officer without personal knowledge of statements.
State v. Rodriguez, 2024AP481, 8/14/24, District II (one-judge decision; ineligible for publication); case activity
COA affirms circuit court’s decision to exclude relevant, but inadmissible, evidence at refusal hearing because witness lacked personal knowledge.
COA: Driver does not have right under implied consent statute to refuse blood test when driver proposes to take breath or urine test.
City of Mequon v. Schumacher, 2023AP2411, 7/3/24, District II (one-judge decision; ineligible for publication); case activity
COA determines person suspected of driving under the influence does not have right under implied consent statute, Wis. Stat. § 343.305, to refuse blood test if the person offers to take a breath or urine test instead.
COA affirms refusal based on delayed and equivocal consent
Village of Butler v. Brandon J. Hernandez, 2023AP1707, 6/19/24, District II (one-judge appeal; ineligible for publication); case activity
Hernandez challenges the circuit court’s finding that he improperly refused to submit to a OWI blood draw, arguing that he consented. The court of appeals rejects his argument, concluding that the circuit court’s finding was not clearly erroneous.
Successful appeal from OWI conviction leads to simple swap for RCS conviction and sentence
State v. Carl Lee McAdory, 2023AP645-CR, 4/12/24, District IV (recommended for publication); petition for review granted 10/7/24 case activity
After McAdory persuaded the court of appeals to reverse his OWI conviction and grant him a new trial, the state pulled the “old switcheroo” on McAdory by getting the circuit court to swap his previously dismissed restricted controlled substance conviction with the OWI conviction overturned by the court of appeals. Instead of a new OWI trial, McAdory was stuck with a new sentence on his previously dismissed RCS conviction. After rejecting McAdory’s challenges to the circuit court’s post-remittitur actions and his double jeopardy claims, the court of appeals affirms.