On Point blog, page 12 of 34
Court rejects challenge to strict application of 10-day deadline for requesting refusal hearing
State v. Hector Miguel Ortiz Martinez, 2017AP668, District 1, 12/27/17 (one-judge decision; ineligible for publication); case activity (including briefs)
After his arrest for OWI, Martinez refused to submit to a breath test. The arresting officer gave him the standard notice of intent to revoke operating privileges containing the standard written warning that the driver has 10 days to request a refusal hearing. Martinez requested a refusal hearing, but not within the 10-day limit under § 343.305(10)(a), so the circuit court declined to hold a hearing. (¶¶3-5). Martinez argues that a language barrier and incomplete information from the arresting officer mean the standard notice he was given was not legally sufficient to start the 10-day clock running. Yes it was, says the court of appeals.
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)
In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.
Defense evidence properly excluded for lack of foundation
State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.
SCOW to address whether warrantless blood draw of unconscious motorist violates 4th Amendment
State v. Gerald Mitchell, 2015AP304-CR; certification granted 9/11/17; case activity (including briefs)
Issue:
Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.
The statutes authorize fines for 7th and greater OWI offenses
State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)
A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.
The scoop on the recent decision to declare Wisconsin’s “Hit and Run” statute unconstitutional
On Point is pleased to present a guest post by Attorney Adam Welch of Tracy Wood and Associates. The law firm recently persuaded Dane County Circuit Court Judge William Hanrahan to declare Wis. Stat. § 346.67 facially unconstitutional and to grant their motion to dismiss a felony Hit and Run—Injury complaint. Judge Hanrahan issued an oral ruling. The transcript has not yet been prepared, so we can’t link to the decision. Adam, however, agreed to lay out the issues for On Point. Here’s Adam:
SCOW fractures over implied consent law; 3 justices say it doesn’t authorize warrantless blood draws
State v. Navdeep S. Brar, 2017 WI 73, 7/6/17, affirming an unpublished court of appeals opinion, 2015AP1261-CR; case activity (including briefs)
By obtaining a driver’s license or operating a vehicle in Wisconsin do we automatically give the government consent to draw our blood without a warrant? A nose count reveals the answer remains “maybe.”
SCOW finds no problem with felony and misdemeanor penalty for same OAR offense
State v. Ernesto E. Lazo Villamil, 2017 WI 74, 7/6/17, affirming a published court of appeals decision; case activity (including briefs)
A few years ago the legislature set out to create a graduated penalty scheme for operating after revocation offenses, but it bungled the job and ended up creating misdemeanor and felony penalties for the offense of causing death while knowingly operating after revocation. The supreme court rebuffs Villamil’s claims that under the rule of lenity only the misdemeanor penalty can be imposed or, in the alternative, that creating two very different penalties for the same crime violates due process and equal protection. The court agrees with his request for resentencing, however, because the circuit court failed to consider the statutorily mandated sentencing factors.
Court of appeals rejects challenges to motorboat implied consent citation
State v. Donald G. Verkuylen, 2016AP2364, 5/18/2017, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Verkuylen pled to refusing a blood draw contrary to the motorboat implied consent law, Wis. Stat. § 30.684. He raises several arguments about the statutorily required warnings, but the court of appeals finds them all either meritless or forfeited.
Court of appeals asks SCOW again: Does warrantless blood draw of unconscious motorist violate the 4th Amendment?
State v. Gerald P. Mitchell, 2015AP304-CR; District 2, 5/17/17, certification granted 9/11/17; case activity (including briefs)
Issue: Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.