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

Columbia County v. Mark Devos, 2010AP2349, District 4, 5/19/11

court of appeals decision (1-judge, not for publication); for Devos: Rex Anderegg; case activity

The DOT Informing the Accused form that was read to Devos contained language beyond that specified in § 343.305(4): “In addition, under 2003 Wisconsin Act 97, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood.” (This information must be provided to an accused pursuant to § 343.305(8).) Devos argues that DOT thereby effectively amended § 343.305(4) without legislative authorization,

State v. Jenny L. Nowak, 2010AP1499-CR, District 3, 5/17/11

court of appeals decision (1-judge, not for publication); for Nowak: Keith F. Ellison; case activity

Warrantless entry into Nowak’s garage was justified under hot pursuit doctrine, given “probable cause to believe Nowak committed a jailable offense—specifically, resisting by failure to stop,” § 346.17(2t) (punishable by 9 months imprisonment), ¶15. (Citing, State v. Richter,

Village of Menomonee Falls v. Jesse Schaefer, 2010AP2485, District 2, 5/18/11

court of appeals decision (1-judge, not for publication); for Schaefer: James A. Gramling, Jr.; case activity

¶4        As a threshold matter, we address the Village’s contention that the municipal court lacked competency to proceed on Schaefer’s Wis. Stat. § 806.07 motion to reopen.  Whether a court has lost competence to proceed presents a question of law that we review de novo.  

State v. Marilee Devries, 2011 WI App 78 (recommended for publication); for Devries: Matthew S. Pinix; case activity

OWI – Repeater – Proof, Prior “Conviction”

Certified copies of proceedings in foreign jurisdictions established adequate proof of prior OWI “connvictions,” § 343.307(1)(d).

¶9        When Wisconsin’s driving laws provide for the enhancement of penalties for a current offense based on prior offenses, the State must present “‘competent proof’” of those earlier offenses.  

State v. Brian M. Joski, 2010AP2223-CR, District 3, 5/3/11

court of appeals decision (1-judge, not for publication); for Joski: Thomas J. Coaty; case activity

A prior conviction used to enhance a new sentence may be collaterally attacked on the basis of violation of right to counsel, in other words, that the defendant didn’t validly waive counsel within the requirements set by State v. Klessig,

State v. George McGee, 2010AP3040-CR, District 3, 4/26/11

court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity

McGee’s collateral attack on a prior OWI conviction used to enhance his present sentence is necessarily limited to denial of the constitutional right to counsel, ¶5. Although McGee represented himself in the challenged prior, he failed to show that his waiver of counsel was invalid.

State v. Joe R. Hechimovich, 2010AP2897-CR, District 4, 4/7/11

court of appeals decision (1-judge, not for publication); for Hechimovich: Corey C. Chirafisi; case activity

Compliance with implied consent law found. Although Hechimovich initially requested a breath test, after his blood was drawn at the hospital, the deputy “gave ample opportunity” during a 10-minute period for Hechimovich to renew the request for breath test. The deputy “conclud(ed) that when Hechimovich did not bring it up following his blood test,

State v. Bradley A. Faber, 2010AP2325-CR , District 2, 3/23/11

court of appeals decision (1-judge, not for publication); for Faber: Susan E. Alesia, SPD, Madison Appellate; case activity

¶1        The State of Wisconsin appeals from an order of the circuit court dismissing the criminal charges against Bradley A. Faber.  Faber was issued a pair of citations for operating a motor vehicle while intoxicated (OWI) (First offense) by the City of Delavan in November 2005 and February 2006. 

State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply

Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement,

State v. Robert J. Ruggles, 2010AP1587, District 2, 11/3/10

court of appeals decision (1-judge, not for publication); for Ruggles: Robert C. Raymond; BiC; Resp.

A driver doesn’t have a constitutional right to be informed that a blood draw could be performed without his consent.

¶9        It is well established that there is no constitutional right to refuse a request for a chemical test.