On Point blog, page 17 of 34
Evidence didn’t establish EMT was authorized to do OWI blood draw
State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)
The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).
Blood-alcohol curve defense didn’t require modification of standard jury instruction on prima facie effect of blood alcohol test results
Little Chute Village Municipal Court v. Dennis M. Falkosky, 2015AP770, District 3, 9/22/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The trial court didn’t err by refusing to modify the standard OWI jury instruction, Wis. J.I.—Criminal 2668, by taking out language giving blood alcohol test results prima facie effect as to the defendant’s BAC at the time of driving and replacing the language with the instruction addressing the blood alcohol curve, Wis. J.I.—Criminal 234.
Evidence was sufficient to show defendant was the person who refused chemical test for intoxication
State v. David Francis Walloch, 2015AP574, District 2, 8/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The evidence presented at Walloch’s refusal hearing supported the finding that Walloch was the person the officers arrested and who refused to submit to chemical testing.
Reasonable objection to blood draw must be articulated at time of blood draw
State v. James Michael Warren, 2014AP792-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), which was the law at the time of Warren’s arrest, a person must present their reasonable objection and the basis for the objection at the time of the blood draw, and failure to do so means the person can’t raise it later in the case.
Evidence sufficient despite lack of direct evidence of time of operation
Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.
Multiple challenges to OAR conviction rejected
State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).
Circuit court had jurisdiction over OWI 1st despite the fact defendant had a prior countable OWI conviction
State v. John N. Navrestad, 2014AP2273, District 4, 7/2/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Disagreeing with the result reached in two recent unpublished decisions that addressed the same issue, a court of appeals judge holds that a circuit court had jurisdiction to convict Navrestad of OWI 1st in violation of a local ordinance even though he had a prior offense at the time of the conviction.
Revocation of driving privileges upheld despite pro se litigant’s efforts to comply with statute
Ozaukee County v. Michael T. Sheedy, 2015AP172, 6/3/15, District 3 (1-judge decision, ineligible for publication); click here for docket and briefs
Sheedy was arrested for OWI and refused to submit to a blood test. A few weeks later, the circuit court entered a default judgement against him. On appeal, Sheedy, pro se, argued that he in fact wrote to the circuit court and asked to reopen his case within the 10 days required by §343.305(2). His appeal failed.
Blood draw by paramedic in jail was reasonable and complied with § 343.305(5)(b)
County of Sauk v. Thomas D. McDonald, 2014AP1921, District 4, 5/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)
McDonald was arrested for OWI and taken to the county jail, where his blood was drawn by a paramedic employed by the city’s ambulance service. Contrary to McDonald’s claims, his blood draw was constitutionally reasonable and the paramedic who performed the blood draw was a “person acting under the direction of a physician,” as required by § 343.305(5)(b).
Challenge to sufficiency of the evidence is frivolous; sanctions ordered
Village of DeForest v. Michael Brault, 2014AP2398, District 4, 4/16/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Brault’s challenge to the sufficiency of the evidence for his conviction for OWI 1st is frivolous, so sanctions under Rule 809.25(3) are appropriate.