On Point blog, page 27 of 33
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court of appeals decision (1-judge, not for publication); for Faber: Susan E. Alesia, SPD, Madison Appellate; case activity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court of appeals decision (1-judge, not for publication); for Ruggles: Robert C. Raymond; BiC; Resp.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court of appeals decision (1-judge, not for publication); for Barahona: Walter A. Piel, Jr.; BiC; Resp.; Reply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,
OWI – Collateral Attack on Priors
State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10
court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply
A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,”
OWI / Refusal – Informed Consent Law
Door County v. Andrew M. LaFond, 2010AP976, District 3, 9/28/10
court of appeals decision (1-judge, not for publication); for LaFond: Robert C. Raymond; BiC; Resp.; Reply
The court rejects an argument that a driver has a due process right to be informed that a blood sample can be taken forcibly upon refusal to consent to a blood draw.
¶8 Our supreme court has held that the information required by what is now WIS.
Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence
City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply
Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs
The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment,