On Point blog, page 15 of 34
SCOW says circuit courts never ever lack subject matter jurisdiction over OWIs or other matters
City of Eau Claire v. Melissa M. Booth Britton, 2016 WI 65, 7/12/16, reversing a circuit court order on bypass, case activity (including briefs)
OWI specialists, pay attention to this case! It abolishes subject matter jurisdiction challenges to improperly-charged 1st offense OWIs. Everyone else, pay attention too. Justice Abrahamson’s 33-page dissent offers a comprehensive analysis of how the majority opinion (written by R.G. Bradley) fundamentally misunderstands circuit court competency and subject matter jurisdiction and broadly impacts public policy as well as civil and criminal litigation.
Consent to blood test was valid despite officer’s statement that a warrant wasn’t needed
State v. Navdeep S. Brar, 2015AP1261-CR, District 4, 7/7/16 (one-judge decision; ineligible for publication),petition for review granted 12/19/2016, affirmed, 2017 WI 73 ; case activity (including briefs)
The record supports the circuit court’s conclusion that Brar consented to a blood test after his arrest for OWI and that his consent was voluntary.
SCOTUS: Warrantless alcohol breath tests reasonable, blood tests not
Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)
Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?
State barred from amending OWI charge from felony to misdemeanor
State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)
This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.
Logic dictates that invalid blood test results aren’t per se inadmissible at OWI trials
State v. Keith A. Wiedmeyer, 2016 WI App 46; case activity (including briefs)
In an impressive of feat of judicial activism, the court of appeals here rewrites §343.305(5)(d) and (6)(a) and defies precedent to achieve its desired outcome: the admission of statutorily invalid blood test results at OWI trials. On Point looks forward to SCOW’s take on this published court of appeals decision.
Evidence sufficient to support verdict of drugged driving
Walworth County v. James E. Robinson, Jr., 2015AP2504-FT, 5/18/16, District 2 (one-judge decision; ineligible for publication); case activity (including memo briefs)
The County needed to prove Robinson drove his motor vehicle on a highway while under the influence of a drug to a degree which rendered him incapable of safely driving, § 346.63(1)(a). It succeeded.
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)?