On Point blog, page 14 of 34
Probable cause for OWI arrest; video of refusal sufficiently authenticated
State v. Steven N. Jackson, 2015AP2682, 9/22/16, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)
Steven Jackson was arrested for OWI and also charged with a refusal to submit to a blood test. On appeal of the refusal, he first argues that the officers lacked probable cause to arrest him.
Blood draw by paramedic was okay
State v. Steven W. Heath, 2014AP2466-CR, District 4, 9/15/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Heath challenges the blood draw evidence in his OWI prosecution, claiming that the paramedic who did the draw wasn’t a “person acting under the direction of a physician” as required by § 343.305(5)(b) and that the method and manner of the blood draw was not constitutionally reasonable. The court of appeals rejects his claims.
Toxicologist could give opinion about impairment
State v. Lory F. Kerk, 2015AP2608-CR, District 3, 9/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court didn’t err in allowing the state to elicit testimony from its expert toxicologist that Kerk was impaired by the amount of alcohol and prescription drugs found in her blood.
Court had jurisdiction over OWI mistakenly charged as a criminal offense
State v. Timothy A. Giese, 2015AP1838-CR, District 3, 9/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The supreme court’s recent decision in City of Eau Claire v. Booth Britton, 2016 WI 65, disposes of Giese’s claim that the circuit court lacked jurisdiction over a mistakenly charged second-offense OWI.
Findings of fact doom challenge to refusal
State v. S.G./Waukesha County v. S.G., 2015AP2138 & 2015AP2139, District 2, 8/24/16 (one-judge decision; ineligible for publication); case activity (including briefs)
S.G. challenges the revocation of her driver’s license for refusal, arguing the arresting officer didn’t sufficiently convey the implied consent warnings to her. She also challenges the sufficiency of the evidence for her OWI conviction. Neither challenge succeeds.
Facts established probable cause to arrest and were sufficient to support guilty verdict
Village of Bayside v. Amber E. Schoeller, 2016AP256 & 2016AP257, District 1, 8/9/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court’s factual findings—which Schoeller doesn’t argue are clearly erroneous—doom her claims that the officer didn’t have probable cause to arrest her and that the evidence isn’t sufficient to prove she’s guilty of OWI.
OWI laws applied to roadways in Boy Scout camp
Kenosha County v. Robert P. Adams, 2015AP2184, District 2, 7/27/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Based on evidence adduced at trial, the roadways at Camp Sol R. Crown were “premises held out to the public for use of their motor vehicles” under § 346.61 and the cases interpreting that statute, in particular State v. Tecza, 2008 WI App 79, 312 Wis. 2d 395, 751 N.W.2d 896 (roadways of private, gated community were held out for public use). Thus, Adams’s driving while intoxicated on those roadways was punishable under § 346.63.
Flawed, unreliable field sobriety tests deprived officer of probable cause to arrest for OWI
State v. Alejandro Herrera Ayala, 2015AP865-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals affirms the circuit court’s findings that the manner in which standardized field sobriety tests were administered to Herrera Ayala was “fatally flawed” because of “significant communication issues” between the officer and Herrera Ayala (a Spanish speaker with apparently limited English) and that those flaws made the SFSTs “unreliable” for purposes of determining probable cause to arrest.
Arrest, conviction of unconscious driver upheld
State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)
McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.
Statute creating both misdemeanor and felony offense isn’t subject to rule of lenity, doesn’t violate due process or equal protection
State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)
Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..