On Point blog, page 29 of 33
Hit-and-Run, § 346.67(1)(a) – Elements – Operator ID
State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett
Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:
¶13 Applying these principles, we conclude the only reasonable meaning of Wis.
Hit & Run, § 346.67(1) – Elements – “Highway”
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: The definition of “highway” for purposes of the hit-and-run statute, § 346.67(1), is found in § 340.01(22), ¶ n. 3.
Hit & Run, § 346.67(1) – Elements – “Accident” Occurring on “Highway,” and Relation to Private Property
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue: Whether hit-and-run liability attaches to an accident occurring on private property.
Holding:
¶13 In this case, as already noted, we are concerned with the meaning of “accident” in Wis. Stat. § 346.67(1) in conjunction with the requirement of “upon the highway” in Wis. Stat.
Implied Consent – Test for Adequacy of Warning, Generally
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding:
¶7 … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8 … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.
Refusal, § 343.305(9) and Implied Consent Law – Interaction with Miranda Warnings
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):
¶14 There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused.
OWI – “Materially Impaired” – Judicial Construction, State v. Waalen, Absorbed into Elemental Meaning
State v. Jonathan J. Hubbard, 2007 WI App 240, (AG’s) PFR filed 11/20/07
For Hubbard: Steven Zaleski
Issue/Holding: The construction of “materially impaired” by State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), clarifies the meaning of that OWI element:
¶9 In Waalen, … (t)he court stated that material impairment “exists when a person is incapable of driving safely,
OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
Hit-and-Run, § 346.67(1) – Element of “Accident”: May Encompass Intentional Conduct
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding:
¶14 The “two clear purposes” of Wisconsin’s hit-and-run statute are:
(1) to ensure that injured persons may have medical or other attention with the least possible delay; and (2) to require the disclosure of information so that responsibility for the accident may be placed.
Hit-and-Run, § 346.67(1) – Reporting Requirement as Related to Self-Incrimination
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding: The § 346.67(1) requirement that a driver provide name, address, vehicle registration number, and driver’s license “to the person struck” does not violate the 5thamendment under controlling authority of California v. Byers, 402 U.S. 426 (1971), notwithstanding that the statute encompasses intentional conduct:
¶29 In short,
Defenses – Issue Preclusion — “Actually Litigated” Requirement: OWI – Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.
Holding:
¶11 Thus, a threshold prerequisite for application of the doctrine is that,