On Point blog, page 19 of 33
Reading Miranda warnings before the “Informing the Accused” caution didn’t mislead defendant about implied consent law
Eau Claire County v. Michael A. Grogan, 2014AP172, District 3, July 1, 2014 (1-judge; ineligible for publication); case activity
A reasonable person would have understood that he was given Miranda warnings because of his obstructionist behavior, so those warnings didn’t mislead Grogan into believing that the warnings applied in the implied consent context.
Failure to preserve evidence rule from Youngblood applies even though defendant wasn’t notified of right to test evidence before it was destoyed
State v. Jessica M. Weissinger, 2014 WI App 73, petition for review granted 10/15/14, affirmed, 2015 WI 42; case activity
Saying it is bound by the rule from Youngblood v. Arizona, 488 U.S. 51 (1988), the court of appeals holds that the state’s destruction of a blood sample before the defendant was notified of her option to test the sample did not violate her due process rights because she has not shown the sample was “apparently exculpatory.” A vigorous dissent says the majority reads Youngblood too broadly, and concludes that because the evidence was inculpatory and necessary to the prosecution, destroying the evidence violated Weissinger’s due process rights even if the state didn’t act in bad faith.
Police had probable cause to arrest for OWI despite lapse between time of driving and time of police contact
State v. Dale F. Wendt, 2014AP174, District 2, 6/18/14 (1-judge; ineligible for publication); case activity
The information known to the deputy at the time he requested Wendt to take a blood test provided probable cause to believe Wendt had driven his vehicle while intoxicated earlier that evening, despite the deputy’s lack of information as to whether Wendt drank during the time that lapsed between his driving and his contact with the deputy.
Lack of scienter requirement in statute prohibiting driving with a detectable amount of a controlled substance doesn’t violate due process
State v. Michael R. Luedtke, 2014 WI App 79, petition for review granted 10/15/14, affirmed, 2015 WI 42 (posts here and here); case activity
Section 346.63(1)(am), which prohibits operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, does not violate due process by failing to require proof that the defendant knowingly ingested the controlled substance. In addition, Luedtke’s due process rights were not violated when the state crime lab destroyed his blood sample before he could have it independently tested.
Implied consent law covering drivers not arrested for OWI is constitutional; defendant’s consent to blood draw was voluntary
State v. Megan A. Padley, 2014 WI App 65; case activity
The implied consent statute that allows an officer to ask for a driver for a blood sample when the officer lacks probable cause to arrest for OWI but has “reason to believe” the driver committed a traffic violation, § 343.305(3)(ar)2., is not facially unconstitutional. In addition, Padley’s consent to the blood draw in this case was voluntary. Finally, the police had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties.
Steering levers in place of a steering wheel doesn’t make a utility terrain vehicle into a motor vehicle
State v. Shawn N. Hill, 2013AP2549-CR, District 2, 5/7/14 (1-judge; ineligible for publication); case activity
A vehicle registered by the State as a “utility terrain vehicle” under § 23.33(1)(ng) is not a “motor vehicle” under § 340.01(35). Thus, a defendant alleged to have operated the vehicle while intoxicated should have been charged under § 23.33(4c), not § 346.63.
Deadline for requesting refusal hearing runs from the date the driver — not the court — received notice of intent to revoke
Oconto County v. Robert E. Hammersley, 2013AP1263, District 3, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity
The 10-day time period to request a refusal hearing under § 343.305(10)(a) begins when the driver receives a copy of the notice of intent to revoke, not when the court receives a copy. Thus, where a notice of intent to revoke was filed in the circuit court well after the statute’s 10-day time limit had elapsed,
Reading old implied consent form didn’t taint admissibility of blood test results
State v. Lawrence A. Levasseur, Jr., 2013AP2369-CR, District 4, 2/6/14; court of appeals decision (1-judge; ineligible for publication); case activity
The arresting officer used an implied consent form that pre-dated the 2009 amendments to § 343.305, so it omitted language about accidents involving death or serious injury–language that did not apply to Levasseur’s situation. The use of the outdated form didn’t strip the resulting blood test result of its statutory presumption of admissibility and accuracy,
Equivocal answers amount to refusal to submit to blood test
State v. Carl J. Opelt, 2013AP1798, District IV, 12/27/13 (1-judge decision, ineligible for publication); case activity.
Police arrested Opelt for OWI. While transporting him to the hospital, an officer asked him 14 times to submit to an evidentiary chemical test of his blood. The circuit court found that Opelt refused to promptly submit to the test and thus revoked his operating privileges pursuant to implied consent law,
Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case
State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity
After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it. Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.