On Point blog, page 28 of 34
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court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply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court of appeals decision (1-judge, not for publication); for LaFond: Robert C. Raymond; BiC; Resp.; Reply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court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply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,
PAC – Burden of Proof
State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10
court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply
Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,
Reasonable Suspicion – Traffic Stop; OWI – Habitual Offender – Collateral Attack
State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10
court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.
Reasonable Suspicion – Traffic Stop
Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.
¶6 Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions.
OWI – PAC: Timing of Countable Prior Convictions
State v. Brian K. Sowatzke, 2010 WI App 81; for Sowatzke: Andrew R. Walter; BiC; Resp.; Reply
¶13 Sowatzke had two countable OWI “convictions, suspensions or revocations” (i.e., he had two OWI convictions) at the time he was arrested on May 9; he had a BAC of 0.048 percent at the time he was arrested on May 9; his legal BAC limit was 0.08 percent at the time he was arrested on May 9.
State v. Gerard W. Carter, 2008AP3144-CR, Wis SCt review, 3/9/10
decision below: 2009 WI App 156; for Carter: Craig M. Kuhary
Issues:
Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?
What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?
State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152
supreme court decision; court of appeals decision; for Fischer: James M. Shellow, Robin Shellow, Urszula Tempska
Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10. Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis.
State v. Bradley J. Tadych, 2009AP1911-CR, Dist II, 1/20/10
court of appeals decision (1-judge; ineligible for publication)
OWI – Probable Cause for PBT
Probable cause to administer PBT: rollover accident, odor of intoxicant, Tadych acknowledged drinking; also, PBT result admissible to establish probable cause to arrest.
State v. Stanley W. Puchacz, 2010 WI App 30
court of appeals decision; for Puchacz: William M. Hayes
Resp Br
OWI Enhancer, § 346.65(2) – Out-of-State Conviction
Michigan convictions for driving while visibly impaired may be counted as Wisconsin OWI priors, given “broad interpretation and application of the final phrase in Wis. Stat. § 343.307(1)(d) and the public policy supporting our drunk driving laws,” ¶¶12-13.
Traffic Stop – Deviating from Center Line, § 346.05
Crossing center line,