On Point blog, page 30 of 33
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,
OWI, § 346.63(1)(am) – “Operating” – Merely Sitting in Parked Car, Engine Running, Not Enough
Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, reversing unpublished decision
For Haanstad: John M. Gerlach
Issue: Whether sitting in the driver’s seat of a running, parked car is, without more, “operating” a motor vehicle within § 346.63.
Holding:
¶15 The term “operate” is defined in § 346.63(3)(b), which reads: “‘Operate’” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”¶16 The court of appeals’
OWI – Enhancer – Collateral Attack on OWI-1st
State v. Joseph J. Hammill, 2006 WI App 128. For Hammill: Patrick J. Stangl
Issue/Holding:
¶15 Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day,
OWI — Enhancement – Collateral Attack, Prior Refusal
State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry
Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:
¶12 In an enhanced-penalty situation,
Enhancement – OWI Prior, Collateral Attack – Procedure
State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen
Issue1: Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.
Holding1:
¶25 … For there to be a valid collateral attack,
OWI – Penalty Provision – Timing of Priors
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense.
Holding:
¶5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under Wis.
OWI — Evidence – Admissibility, Field Sobriety Tests
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding:
¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All relevant evidence is admissible unless otherwise provided by law.”).
OWI — Implied Consent, Driver’s Request for Additional Test, § 343.305 (5)(a), Made After Release From Custody – Timeliness
State v. Patrick J. Fahey, 2005 WI App 171
Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7.
Holding:
¶14 … The State, in keeping with the circuit court’s decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.
OWI – Penalty Provision – Enhancement – Proof (and Apprendi)
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue/Holding:
¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions.
OWI, § 346.63(1)(am) – Elements, Proof of “Impairment” Not Necessary
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16.
Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6.