On Point blog, page 20 of 34
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 The use of the outdated form didn’t strip the resulting blood test result of its statutory presumption of admissibility and accuracy,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.
Wisconsin Supreme Court: Discretionary authority to dismiss refusal charges is limited to cases in which defendant pleads guilty to underlying OWI
State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity
In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI.
Trial court properly concluded officer did not have probable cause to arrest defendant for OWI
Fond du Lac County v. Randal B. Hopper, 2012AP1719, District 2, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court properly concluded the defendant did not unlawfully refuse to provide a breath sample because the officer lacked probable cause to arrest him for OWI:
¶10 Considering the collective knowledge of dispatch and the arresting deputy at the time the deputy arrested Hopper,
Religious objection to blood draw is not relevant at a refusal hearing
State v. Victoria M. Milewski, 2013AP1323, District 4, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
After being arrested for OWI Milewski refused a blood test, saying her Christian Scientist beliefs prohibited her from allowing a needle to be inserted in her body; she offered to provide a urine sample instead. (¶¶2-3). At her refusal hearing she asserted her refusal to submit to the blood test for religious reasons was a reasonable objection under State v.
Defects in notice about right to request refusal hearing didn’t excuse untimely filing of request
State v. Sidney H. Sawicky, 2013AP1335, District 3, 11/19/13; court of appeals decision (1-judge; ineligible for publication); case activity
Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121, held that the 10-day limit for requesting a refusal hearing set out in § 343.305(9)(a)4. and (10)(a) is mandatory and cannot be extended, even due to excusable neglect.
Falling asleep behind the wheel constitutes inattentive driving under § 346.89(1)
Dodge County v. Giovanina Louise Ray, 2013AP1588, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity
The general prohibition against inattentive driving in § 346.89(1) covers falling asleep behind the wheel. Ray argued the statutory language prohibiting a person from being “so engaged or occupied as to interfere with the safe driving” of the vehicle required engagement or occupation with something “external” and doesn’t apply to sleeping because,
Court of appeals reverses conviction for hit and run involving death due to trial counsel’s ineffective assistance
State v. Marker Alan Sperber, 2013AP358-CR, District 3, 10/15/13 (not recommended for publication); case activity
This appeal turns on Wis JI-Criminal 2670, which explains the 5 elements of the crime the Sperber was charged with–a hit and run causing death to the victim. The 2nd element requires that the defendant know that his vehicle was involved in an accident involving a person. The problem here was that Sperber was driving in the dark on wet roads flanked by blackened snowbanks.
OWI — Probable cause to request preliminary breath test; admissibility of evidence of defendant’s refusal to take the test
State v. Raylene A. Brinkmeier, 2013AP15-CR, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity
The police had probable cause under § 343.303 to request Brinkmeier to submit to a preliminary breath test (PBT):
¶13 Contrary to Brinkmeier’s argument, the evidence supporting probable cause in this appeal does not differ significantly from the evidence in [County of Jefferson v.