On Point blog, page 23 of 34
Enhancers – § § 343.307(1), 346.65(2)(am)3., OWI – Jury Determination and Apprendi
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;
OWI – 1-Difluoroethane (DFE)
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.
Investigative Stop – Reasonable Suspicion, OWI
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Reasonable suspicion supported temporary stop, State v. Meye, 2010AP336-CR, unpublished slip op.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.
OWI – Refusal Hearing – Litigation of Constitutionality of Traffic Stop
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 .
OWI – Refusal Hearing , Untimely Request, Competence of Court to Hear
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.
Warrantless Blood Draw – Medical Basis for Objection
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.
State v. Juan G. Gracia, 2011AP813-CR, petition for review granted 5/14/12
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,
OWI Enhancer – Collateral Attack – Prima Facie Showing
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,
OWI, § 346.63(2)(a)1 – Operating on “Public” Roadway, Gated Community
State v. Michael F. Hyzy, 2011AP2503-CR, District 2, 5/2/12
court of appeals decision (1-judge, not for publication); for Hyzy: Jefren E. Olsen, SPD, Madison Appellate; case activity
Evidence held sufficient to uphold OWI guilty verdict, against argument of failure of proof that roadways of gated community were “held out to the public for use of their motor vehicles.”
¶11 Construing this evidence in the conviction’s favor,
State v. Courtney C. Beamon, 2011 WI App 131, rev. granted 4/25/12
court of appeals decision; for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; prior post
Elements, Fleeing, § 346.04(3) – Instructions – Sufficiency of Proof – Harmless Error
Issues (from Beamon’s Petition for Review):
Is a jury instruction which describes the factual theory alleged to satisfy an element legally erroneous?
In a criminal case, are the instructions given the jury the law of the case against which the sufficiency of the evidence must be measured or,