On Point blog, page 15 of 33
Ensuring automatic admissibility justified warrantless blood draw
State v. Melvin P. Vongvay, 2015AP1827-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity (including briefs)
Wisconsin Stat. § 885.235(1g) makes a blood alcohol test automatically admissible in a drunk driving prosecution if the blood is drawn within three hours of the alleged driving. The court here holds that an officer who was running up against the end of that three-hour window was justified in drawing blood without seeking a warrant.
State v. Howes, 2014AP1870-CR, certification granted 4/7/16
On review of a court of appeals certification; case activity (including briefs)
Issue (from certification)
This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.
Carburetor cleaner is an “intoxicant” under prior version of OWI statute
State v. John Steven Duewell, 2015AP43-44-CR, 3/23/16, District 1 (not recommended for publication); case activity (including briefs)
In a decision that seems to conflict directly with State v. Torbeck, 2012 WI App 106, 344 Wis. 2d 299, 821 N.W.2d 414, see our post here, the court of appeals holds that carburetor cleaner is an intoxicant under Wisconsin’s OWI statute, Wis. Stat. §346.63(1)(a)(2011-2012).
State v. Patrick K. Kozel, 2015AP656-CR, petition for review granted 3/7/16
Review of an unpublished court of appeals decision; case activity (including briefs)
Issue (composed by On Point)
What is required to show that an evidentiary blood draw was conducted by a “person acting under the direction of a physician” for purposes of Wis. Stat. § 343.305(5)(b)?
Accident reporting statute covers injury regardless of monetary cost
City of Rhinelander v. Thomas V. Wakely, 2015Ap302, 3/8/16, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
While the accident reporting requirement under § 346.70(1) requires that property damage reach a certain minimum “apparent [monetary] extent” before the accident is reportable, it does not require a minimum monetary extent for personal injuries before the accident is reportable.
Circuit court erred in excluding field sobriety test evidence
State v. Robert A. Schoengarth, 2015AP1834-CR, 2/11/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erroneously exercised its discretion when it ordered that police could not testify about Schoengarth’s performance on field sobriety tests.
Court of Appeals certification asks: Does the implied consent law creates a categorical exception to the warrant requirement?
State v. David W. Howes, 2014AP1870-CR, 1/28/16, District 4; certification granted 4/7/16, reversed, 2017 WI 18; case activity (including briefs)
Issue:
This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.
Evidence was sufficient to prove OWI based on prescribed medication
County of Eau Claire v. Susan M. Sandas, 2015AP612 & 2015AP613, 1/20/16, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
The evidence was sufficient to prove Sandas was operating while intoxicated due to her use of Oxycodone and Fluoxitine despite the testimony from her primary care doctor that he had no evidence she was abusing her prescriptions and testimony from a forensic scientist that those medications wouldn’t have caused the nystagmus observed by the arresting officer.
Temporarily suspending license didn’t preclude state from seeking revocation
State v. Keith D. McEvoy, 2015AP1262, District 4, 12/30/2015 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the facts of this case, the temporary suspension of McEvoy’s license based on his blood alcohol content didn’t equitably estop the State from seeking to revoke his license based on his refusal to submit to a chemical test of his blood.
Consent to blood draw wasn’t coerced by warning about revocation for refusal or threat to get warrant
State v. Bradley A. Anderson, 2015AP1573-CR, 12/23/15, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Anderson’s consent to a blood draw after his OWI arrest was not vitiated by being told that, if he refused the blood draw, his driving privileges would be revoked and the officer would get a warrant for a blood draw. In addition, the circuit court properly found that Anderson didn’t later withdraw his consent to the blood draw.