On Point: B. Chs. 343-346: Traffic offense

State v. Reginald Scott Williams, 2011AP1379-CR, District 1, 9/18/12

court of appeals decision (not recommended for publication); case activity

Williams drove at an excessive speed (30+ over the limit), and crashed into another car, resulting in death and serious injuries. He pleaded no contest to one count of homicide by negligent use, § 940.10 and one count of reckless driving / GBH, § 346.62(4). At the time of the pleas,

State v. Frederick J. Scott, 2012AP533-CR, District 3, 9/11/12

court of appeals decision (1-judge, ineligible for publication); case activity

The threshold for illegal alcohol concentration is reduced from .08 to .02 for drivers who have at least 3 prior qualifying convictions. Scott had three priors, thus was subject to arrest and prosecution for driving with a PAC of .03. However, prior convictions may be collaterally attacked if obtained in violation of the right to counsel,

State v. Lisa M. Arentz, 2011AP2307-CR / State v. Eric R. Hendricks, 2012AP243-CR, District 2, 9/5/12

court of appeals decision (1-judge, ineligible for publication); case activity (Arentz; Hendricks)

Criminal OWI prosecution is premised on, and a resulting sentence enhanced by, a prior civil-forfeiture OWI conviction (which does not itself require unanimous jury verdict upon proof beyond reasonable doubt). Arentz and Hendricks raise the same arguments: the elements of the underlying civil forfeiture must be proved to the jury beyond reasonable at the criminal trial;

State v. Marilyn M. Torbeck, 2012AP522-CR, District 2, 8/1/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶6        … For the State to charge Torbeck with OWI under § 346.63(1)(a), DFE must be either an intoxicant, a controlled substance, a controlled substance analog, or a drug.  DFE is not listed as a controlled substance under either Wisconsin or federal law.  A “controlled substance analog” is defined as “a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance.”  Wis.

Dane County v. Amy Jolene Judd, 2011AP2106, District 4, 7/19/12

court of appeals decision (1-judge, ineligible for publication); case activity

Reasonable suspicion supported temporary stop, State v. Meye, 2010AP336-CR, unpublished slip op. (WI App July 14, 2010) (“odor of intoxicants alone is insufficient to raise reasonable suspicion to make an investigatory stop”), distinguished:

¶7        I disagree that Meye is analogous to the present case.  

State v. Dimitrius Anagnos, 2012 WI 64, reversing 2011 WI App 118; case activity

OWI – Refusal Hearing – Authority to Litigate Constitutionality of Traffic Stop 

Constitutionality of the traffic stop  may be raised as a defense at a refusal hearing, § 343.305(9)(a)5.a.

¶29  In this case, the relevant portion of the statute is found in sub. (9)(a)5.a.  That subsection permits circuit courts to consider “[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . 

Village of Elm Grove v. Richard K. Brefka, 2011AP2888, District 1/2, 6/19/12, WSC review granted 11/14/12

court of appeals decision (1-judge, ineligible for publication), supreme court review granted 11/14/12; case activity

The municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearings, given the clear language of §§ 343.305(9)(a)4. and (10)(a). Village of Butler v.

State v. James Ralph Whitwell, 2011AP1342-CR, District 3/4, 5/24/12

court of appeals decision (not recommended for publication); for Whitwell: Jefren E. Olsen, Chandra N. Harvey, SPD, Madison Appellate; case activity

Whitwell challenges a warrantless blood draw, on related grounds: he objected at the time, informing officials that he suffered from a medical condition that made the draw dangerous absent certain precautionary measures; this objection to the draw was objectively reasonable. 

on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity

Warrantless Entry – Community Caretaker / OWI Enhancer – Collateral Attack 

Issues (Composed by On Point): 

Whether the community caretaker doctrine supported entry into Gracia’s bedroom after the police linked him to a serious traffic accident.

Whether Gracia’s waiver of counsel in a prior OWI conviction used as a penalty enhancer was valid,

State v. Casey D. Schwandt, 2011AP2301-CR, District 2, 5/16/12

court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity

Schwandt made a prima facie showing that he did not validly waive counsel in a 1997 OWI conviction used as a penalty enhancer.

General Principles.

¶5        A defendant may collaterally attack a prior conviction on the ground that his or her constitutional right to counsel was violated because he or she did not knowingly,