On Point blog, page 27 of 34
Collateral Attack – OWI Prior
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court of appeals decision (1-judge, not for publication); for Joski: Thomas J. Coaty; case activity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,
OWI – Enhancer – Collateral Attack
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court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity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.
Implied Consent Law, § 343.305(5)(a)
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court of appeals decision (1-judge, not for publication); for Hechimovich: Corey C. Chirafisi; case activity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,
OWI – Statute of Limitations
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court of appeals decision (1-judge, not for publication); for Faber: Susan E. Alesia, SPD, Madison Appellate; case activity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.
OWI – § 346.65(2), Second or Subsequent Offense: Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension
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,
OWI – Refusal
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.
Probable Cause – OWI Arrest
State v. Michael A. Barahona, 2010AP1324, District 4, 10/21/10
court of appeals decision (1-judge, not for publication); for Barahona: Walter A. Piel, Jr.; BiC; Resp.; Reply
¶14 The undisputed facts as disclosed from the record reveal the following: (1) Marks observed Barahona’s vehicle driving in the wrong direction in the eastbound lane of Campus Drive; (2) Marks observed Barahona’s vehicle cross the dotted line dividing two lanes of traffic by approximately one foot and drive over that line for approximately one block when he was pulled over by Marks;
Fleeing, § 346.04(3); Evidence – Character Trait of Victim
State v. Daniel H. Hanson, 2010 WI App 146 (recommended for publication), affirmed 2012 WI 4; for Hanson: Chad A. Lanning; case activity
Fleeing, § 346.04(3)
Can you criminally “flee” the police, if what you’re actually doing is driving to the nearest police station to escape what you believe to be a beating at the hands of the officer you’re fleeing?
State v. Lee Anthony Batt, 2010 WI App 155
court of appeals decision (recommended for publication); for Batt: Chad A. Lanning; BiC; Resp.; Reply
OWI – Implied Consent Law – § 343.305(5)(a) Testing
Construing State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), the court concludes that the Implied Consent law affords the driver the right to choose testing administered by the law enforcement agency at no expense to the driver,
Richard M. Fischer v. Ozaukee Co. Circ. Ct., 741 F. Supp. 2d 944 (E.D. Wis. 2010)
federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11
Habeas Review – Right to Present Defense – Expert Opinion, Based PBT
Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303 on PBTs,