On Point blog, page 24 of 34
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court of appeals decision (not recommended for publication); for Whitwell: Jefren E. Olsen, Chandra N. Harvey, SPD, Madison Appellate; case activity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on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity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court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity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court of appeals decision (1-judge, not for publication); for Hyzy: Jefren E. Olsen, SPD, Madison Appellate; case activity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,
§ 974.06 Motion – Custody Requirement; OWI – Enhancer
State v. David D. Austin, 2011AP1042, District 1, 4/10/12
court of appeals decision (1-judge, not for publication); pro se; case activity
Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:
¶12 Austin submits that the wording of Wis.
OWI – Repeater – Collateral Attack
State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12
court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity
The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:
¶2 A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.
OWI – Operating in Parking Lot: “Held Out to the Public for Use,” § 346.61
State v. Heidi L. Fleischmann, 2011AP2558-CR, District 3, 3/20/12
court of appeals decision (1-judge, not for publication); for Fleischmann: Sarvan Singh; case activity
The State satisfied its burden of proving that Fleischmann operation of a motor vehicle, in a parking lot adjacent to an empty business building, was on “premises held out to the public for use of their motor vehicles,” § 346.61.
¶8 Whether a premises is held out to the public depends on the owner’s intent.
OWI – Operating on Public “Premises” – Frozen Lake
State v. Todd M. Anderson, 2011AP1499-CR, District 2, 3/14/12
court of appeals decision (1-judge, not for publication); for Anderson: pro se; case activity
Frozen Lake Winnebago is a public “premises” within § 346.61, therefore supports prosecution for operating a vehicle on the lake while intoxicated. City of Kenosha v. Phillips, 142 Wis. 2d 549, 419 N.W.2d 236 (1988), discussed and applied.
¶9 Unlike the Phillips court,