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

on review of unpublished decision; case activity

Issue (composed by On Point) 

Whether the municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearing.

Brefka filed a request for refusal hearing outside the 10-day time limit in § 343.305(9)(a)4. Does a court possess competence to extend that deadline? No dice, according to the court of appeals: “Section 343.305(9)(a)4. specifically mandates that if the request for a hearing is not received within the ten-day period, 

State v. Thomas E. Schmidt, 2012 WI App 137 (recommended for publication); case activity

After performing an HGN test, which exhibited 6 out of 6 indicia of impairment, Schmidt was arrested for OWI. At the ensuing trial, he asserted diabetes as a possible cause for the HGN result. The trial court ordered, as a condition of his testifying to this effect, that he submit to an HGN test outside the presence of the jury.

Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12

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

Probable Cause – PBT, § 343.303

¶11      At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption),

County of Fond du Lac v. Nancy C. Bush, 2012AP1486, District 2, 10/31/12

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

Under the implied consent law, a motorist must, when properly requested to submit to a chemical test, answer “promptly,” State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980), else failure to respond will be construed as refusal.

State v. William R. Hartman, 2011AP622, District 4, 9/20/12

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

OWI – Refusal Hearing – Raising Challenge to Lawfulness of Stop

Refusal hearing supports litigation of lawfulness of stop; State v. Anagnos, 2012 WI 64, ¶42, 341 Wis. 2d 576, 815 N.W.2d 675, followed:

 ¶14      Accordingly, we reject the State’s contention that Hartman improperly raised the issue of reasonable suspicion at the refusal hearing.   

State v. Robert B. Sonnenberg, 2012AP1025, District 2, 9/19/12

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

Evidence held sufficient to sustain Sonnenberg’s conviction for OWI-1st. He admitted that he drank some indeterminate amount of alcohol before his car had a flat tire and then drank more on the side of the road; after an officer encountered him, he performed poorly on FSTs and his blood draw resulted in a .184 BAC.

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.