On Point blog, page 11 of 34
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State v. Jessica M. Randall, 2017AP1518, petition for review of unpublished opinion granted 10/9/18; case activity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State v. Justin A. Braunschweig, 2017AP1261-CR, petition for review of an unpublished court of appeals decision granted 6/11/18; case activity (including briefs)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.
Entry of order to install ignition interlock device triggered 0.02 BAC limit
State v. Joshua H. Quisling, 2017AP1658-CR, District 4, 4/12/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Quisling was “subject to” a court order to install an ignition interlock device (IID) under § 343.301 (2013-14) even though the requirement for actually installing the device was contingent on DOT issuing him a driver’s license, and that hadn’t happened yet.
COA: Warrant to take blood authorized testing blood
State v. Collin M. Gallagher, 2017AP1403, 4/5/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Police took Gallagher’s blood by a warrant that the parties agree was supported by probable cause of operating while intoxicated. He argues, though, that the warrant did not, by its terms, authorize the subsequent testing of his blood–or, that if it did authorize testing, its failure to specify what sorts of testing were permitted rendered it an unconstitutional “general warrant.”
Circuit court properly rejected claim that refusal was justified due to physical disability or disease
City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)
McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.
COA affirms finding of probable cause to arrest for OWI and improper refusal to submit to a blood test
State v. Dustin R. Willette, 2017AP888, District 3, 2/6/18 (1-judge opinion, ineligible for publication); case activity (including briefs)
A police dispatcher informed officer Hughes that a caller saw a man drive into gas station, exit his car, and walk away. Then another officer reported seeing a similarly-dressed man walking down the a road about a mile away. That man was Willette. Officer Hughes picked him up, drove him back to the car at the gas station, performed FSTs, arrested him for OWI, and asked him to submit to a blood test. Willette did not say “yes” or “no.” He said “I want to speak to a lawyer.” Here’s why the circuit court found probable cause to arrest and improper refusal to submit to a blood test.