On Point blog, page 24 of 33
Fleeing, Elements: “Willful or Wanton Disregard”; Evidence – Character Trait of “Victim,” § 904.04(1)(b)
State v. Daniel H. Hanson, 2012 WI 4, affirming 2010 WI App 146; for Hanson: Robert R. Henak, Chad Lanning; case activity
Fleeing, § 346.04(3) – Elements: “Willful or Wanton Disregard”
Fleeing does not require “an evil or malicious state of mind” when disregarding an officer’s signal:
¶22 In Wis. Stat. § 346.04(3), “willful” modifies “disregard.” In that context,
State v. Dimitrius Anagnos, 2011 WI App 118, rev. granted 1/25/12
on review of published opinion; for Anagnos: Barry S. Cohen; case activity; prior post
Traffic Stop – Reasonable Suspicion – OWI Refusal Hearing Challenge to Arrest
Issues (composed by On Point):
1. Whether the officer could lawfully stop Anagnos’ vehicle for failing to use a turn signal where neither traffic nor pedestrians were present, § 346.34(1)(b).
2. Whether the officer had reasonable suspicion to stop Anagnos’
OWI: admissibility of opinion based on FST
State v. James W. Warren, 2012AP1727-CR, District 2, 1/16/13
Court of appeals decision (1 judge, not eligible for publication); case activity
OWI — admissibility of opinion based on field sobriety tests
Police officer testimony that, based on his training and experience, “the field tests are a reliable indicator of whether someone is .08 or higher” and that the HGN test alone is sufficient to detect a BAC over .08,
OWI – Sufficiency of Evidence; Closing Argument – Explanation of Element (“Operate,” OWI)
City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12
court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity
Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep.
State v. Juan G. Gracia, 2011AP813-CR, District 2, 12/28/11, rev. granted 5/14/12
court of appeals decision (1-judge, not for publication); for Gracia: Tracey A. Wood; case activity; petition for review granted 5/14/12
Warrantless Entry – Community Caretaker
Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine; State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242,
OWI – Implied Consent Law
State v. Luke T. Nirmaier, 2011AP1355-CR, District 3, 12/28/11
court of appeals decision (1-judge, not for publication); for Nirmaier: Michael M. Rajek; case activity
The odor of alcohol on Nirmaier following a traffic accident resulting in substantial bodily injury triggered the implied consent law, notwithstanding absence of probable cause to arrest at that point:
¶9 Wisconsin Stat. § 343.305(3) outlines different scenarios in which an officer may invoke the implied consent law and request a chemical test of an individual’s breath,
OWI Enhancer – Collateral Attack
State v. Jason L. Decorah, 2011AP662-CR, District 4, 12/8/11
court of appeals decision (1-judge, not for publication); for Decorah: Corey C. Chirafisi; case activity
Collateral attack on a prior OWI used as a current enhancer, on the ground Decorah didn’t understand the range of penalties therefore didn’t validly waive counsel. Decorah prevailed below, and the court affirms on this State’s appeal:
¶3 Decorah’s collateral attack is based on his contention that,
Evidence – Admissibility of Blood Test Results
State v. Michael Perzel, III, 2011AP1190-CR, District 4, 12/1/11
court of appeals decision (1-judge, not for publication); for Perzel: Waring R. Fincke; case activity
Blood test results are admissible without expert testimony to reflect a person’s bac at the time in question (in this OWI-related prosecution, at the time Perzel was driving), so long as the blood was drawn by a person enumerated in § 343.305(5)(d). One such person is a “registered nurse.”
Statute of Limitations – Reopened OWI-1st; Excited Utterance
City of Waukesha v. James F. Murphy, 2010AP2499, District 1/2, 11/29/11
court of appeals decision (1-judge, not for publication); for Murphy: Leonard G. Adent; case activity
The City obtained dismissal of a then-pending OWI-1st, after discovering that Murphy had an OWI-related conviction. (Per Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982), the State has exclusive authority over second and subsequent drunk driving offenses.) However,
OWI-Repeater – Challenge to Prior Conviction
State v. Jeffrey Steinhorst, 2011AP1360-CR, District 4, 11/23/11
court of appeals decision (1-judge, not for publication); for Steinhorst: Steven Cohen; case activity
Steinhorst made a prima facie showing that he did not validly waive counsel in a prior OWI case; therefore, he is entitled to a hearing at which the State must prove proper waiver, by clear and convincing evidence, else the prior conviction may not be used to enhance his current case.