On Point blog, page 10 of 34
Driver’s silence constituted refusal; subpoenaed urine test results were admissible
State v. Gerald J. Vanderhoef, 2016AP2052-CR, District 1, 4/30/19 (not recommended for publication); case activity (including briefs)
Vanderhoef’s silence in response to the “Informing the Accused” form constituted a refusal to consent to a chemical test, so the subsequent blood draw was unlawful. However, the state subpoenaed the results of his urine test, and that evidence was admissible.
Traffic stop, field sobriety tests lawful
State v. Faith A. Parafiniuk, 2018AP1956, District 2, 3/27/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The stop of Parafiniuk’s car was supported by reasonable suspicion and the officer had sufficient reason to extend the stop to administer field sobriety tests.
Court of Appeals rejects constitutional challenges to detectable amount of controlled substances law
State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.
SCOW to address municipal court’s subject matter jurisdiction over criminal OWI
City of Cedarburg v. Ries B. Hansen, 2018AP1129, petition for bypass granted 2/12/19; case activity (including briefs)
Issue (from petition for bypass):
City of Eau Claire v. Booth, 2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738 held that when a circuit court handles a 1st offense OWI that is mischarged due to an unknown prior offense, it is a defect in the circuit court’s competency but not the circuit court’s subject matter jurisdiction. Accordingly, a defendant must timely object to the circuit court’s lack of competency or the objection is forfeited. Is the same true when the mischarged OWI is in municipal court?
Court of appeals affirms extension of stop and OWI 4th for impairment from prescription medication
State v. James R. Mueller, 2018AP44-CR, 2/12/19, District 3 (1-judge opinion, eligible for publication); case activity (including briefs).
Mueller conceded that an officer had reasonable suspicion to stop him. He argued that the officer extended the stop based on a “hunch” and that his FSTs results did not provide probable cause for arrest or sufficient evidence to convict him because they test for impairment by alcohol, not prescription meds.
Dismissal after suppression ruling was premature
County of Green v. Joey Jay Barnes, 2018AP1382, District 4, 2/7/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court dismissed charges against Barnes after suppressing some of the evidence against him. Not so fast, says the court of appeals.
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