On Point blog, page 13 of 34
SCOW: 1 car crash killing 2 victims yields 2 counts of “hit and run” in violation of sec. 346.67(1)
State v. Sambath Pal, 2017 WI 44, 4/28/17, affirming a court of appeals summary disposition, 2015AP1782-CR; case activity (including briefs)
Driver crashes into group of motorcyclists, kills one, mortally injures a second, flees the scene, and eventually pleads guilty to 2 counts of hit and run resulting in death contrary to §346.67(1). He’s sentenced to 2 consecutive terms of 10 years IC and 10 years ES. Questions Presented: Did driver commit 1 offense or 2? And is his sentence unduly harsh?
Challenges to blood draw, use of OWI prior convictions rejected
State v. Julieann Baehni, 2015AP2263-CR, 4/27/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Baehni was charged with OWI, fourth offense. In the circuit she unsuccessfully sought to have the blood draw test results suppressed because she wasn’t given the alternative test she requested. She also collaterally attacked two of her prior convictions, likewise without success. The court of appeals affirms.
Court of appeals again holds officer’s HGN testimony isn’t subject to Daubert
State v. Brandon Arthur Millard, 2016AP1474-CR, 4/20/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
¶10 This court has previously rejected arguments that Daubert applies to a law enforcement officer’s testimony regarding HGN. See State v. VanMeter, No. 2014AP1852, unpublished slip op. (WI App Nov. 24, 2015), and State v. Warren,
Splintered SCOW fails to decide constitutionality of statute authorizing blood draws from unconscious persons
State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)
The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.
Consent to blood draw was voluntary
State v. Eric M. Doule, 2016AP1146-CR, District 3, 2/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The record supports the conclusion that Doule voluntarily consented to a blood draw after he was arrested for OWI.
State v. Ernesto E. Lazo Villamil, 2015AP791-CR, petitions for review and cross-review granted 1/9/2017
Review of a published court of appeals decision; case activity (including briefs)
Issues (from the petition for review and petition for cross-review)
1. Whether the offense under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony in order to resolve ambiguity in the statutory language when the legislature’s intent was to create a penalty scheme with increasing penalties for additional elements; or whether, instead, the doctrine of implied repeal should be employed to correct the obvious drafting error that created the ambiguity as to whether the offense is a misdemeanor or a felony.
2. Whether § 343.44(2)(ar)4., having been interpreted to give discretion to the prosecution to charge an offense as a misdemeanor or a felony, can be constitutionally applied.
3. Whether the provision in § 343.44(2)(b) stating that the circuit court “shall” consider certain sentencing factors is mandatory or directory.
State v. Navdeep S. Brar, 2015AP1261-CR, petition for review granted, 12/19/16
Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review
Issues (composed by On Point):
1. Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?
2. Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”
Challenges to seizure, arrest, refusal finding rejected
Washington County v. Daniel L. Schmidt, 2016AP908, District 2, 11/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.
State v. Sambath Pal, 2015AP1782-CR, petition for review granted 10/11/2016
Review of a court of appeals summary disposition; case activity (including briefs); petition for review
Issues (composed by On Point)
(1) Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?
(2) Is the defendant’s sentence unduly harsh?
Defense experts’ testimony about possible blood test errors too speculative to be admitted
State v. Ali Garba, 2015AP1243-CR, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Garba wanted to present testimony from two expert witnesses about possible reliability problems with the gas chromatography tests of his blood, but the circuit court wouldn’t let him. The court of appeals holds the circuit court properly exercised its discretion and rejects Garba’s claim the ruling violated his right to present a defense.