On Point blog, page 10 of 33
Involuntary intoxication defense to OWI rejected
Village of Menomonee Falls v. Kristina L. Smithers, 2018AP993, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court properly rejected Smithers’s invocation of an involuntary intoxication defense in her prosecution for operating while under the influence of the prescription medication she was taken as prescribed.
Finding of improper refusal upheld
State v. Nathan Alan Bise, 2017AP1662, District 4, 1/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Bise raises three challenges to the finding he improperly refused a breath test. The court of appeals rejects them all.
Premature revocation for refusal can’t be invalidated
City of Crandon v. Lynda Morris, 2017AP2266, District 3, 1/15/19 (one-judge decision; ineligible for publication); case activity (including brief of appellant; respondent didn’t file one….)
The circuit court improperly jumped the gun by ordering Morris’s driver’s license to be revoked for refusal before the 10-day deadline for her to request a refusal hearing. But she never asked for a refusal hearing, and once the deadline to do so passed the circuit court lost competency to undo the revocation—even though the associated OWI 3rd charges were ultimately thrown out after the evidence was suppressed.
Equivocating over whether to take a breath test, then agreeing to it, counts as a refusal
State v. Stuart W. Topping, 2018AP318, 2/6/18, District 4 (1-judge opinion, ineligible for publication); case activity (including brief)
You don’t see this very often. Topping, represented by counsel, filed an initial brief. The State never responded. That might have been cause for summary reversal. But here Topping’s challenge to the circuit court’s finding that he refused to submit to a breath test after his arrest for OWI failed even though it was unopposed
Can a person withdraw consent to test their blood after it’s been drawn? SCOW will decide.
State v. Jessica M. Randall, 2017AP1518, petition for review of unpublished opinion granted 10/9/18; case activity
Issue:
Was Randall entitled to suppression of the results of a test of a blood sample that she voluntarily gave to police under the implied consent law because she informed the lab that she was withdrawing her consent before the lab had analyzed the blood to determine the presence and quantity of drugs and alcohol?
No error in finding defendant guilty of OWI
Village of Pleasant Prairie v. Brian Lucas, 2017AP2131, District 2, 8/22/18 (one-judge decision; ineligible for publication); case activity
This pro se defendant’s challenges to his OWI conviction go nowhere.
Cop didn’t mislead defendant about right to counsel before submitting to chemical test for alcohol
State v. Richard Rey Myers, 2017AP2499, District 4, 8/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Myers argues, unsuccessfully, that his refusal to submit to a blood test for OWI can’t be found to be improper because it was based on misinformation from the officer about his right to counsel.
SCOW to consider whether expunged OWI counts as prior
State v. Justin A. Braunschweig, 2017AP1261-CR, petition for review of an unpublished court of appeals decision granted 6/11/18; case activity (including briefs)
Braunschweig was convicted of first-offense OWI causing injury, but that conviction was expunged. So, when he picked up another OWI, was it a first or a second?
Wrong return address on notice of intent to revoke license doesn’t undo refusal revocation
County of Door v. Donald L. McPhail, 2017AP1079, 5/30/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
When McPhail was arrested for first-offense OWI, he refused a blood test. The arresting officer gave him the notice of intent to withdraw his operating privilege, which told McPhail he had 10 days to request a hearing, and that he should send his request to 1201 S. Duluth Ave in Sturgeon Bay. But that’s the Sheriff’s department, not the clerk of courts, which is at 1205 (though the two are part of the same complex).
Court of appeals construes owner’s defense to hit and run liability under § 346.675(4)(b)2.
City of Eau Claire v. Debora Ann West, 2017AP1527, District 3, 5/22/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Section 346.675 provides that the owner of a vehicle is liable for a hit-and-run violation that his or her vehicle is involved in, regardless of whether the owner is operating the vehicle at the time of the violation, but also subject to certain defenses. One of the defenses, § 346.675(4)(b)2., allows the owner to avoid liability by providing the name and address of the person operating the vehicle at the time of the violation along with other information sufficient to provide probable cause that the owner wasn’t operating at the time of the violation. Contrary to the circuit court’s conclusion, the evidence in this case wasn’t sufficient to conclude that West established that defense.