On Point blog, page 31 of 33
OWI — Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)
State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn
Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.
Holding:
¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”
OWI — Second or Subsequent Offense, Prior Conviction – Foreign Case Resulting in “Court Supervision”
State v. Arthur C. List, 2004 WI App 230, PFR filed 12/22/04
For List: Joseph L. Polito
Issue: Whether an Illinois OWI charge resulting in court supervision is a “conviction” within the meaning of § 343.307(1)(d).
Holding:
¶5. List contends that under Wis. Stat. § 343.307(1)(d) only OWI offenses that result in formal conviction as defined by the laws of a foreign state count for the purpose of charging a Wisconsin OWI suspect.
OWI – Preliminary Breath Test, § 343.303 – Refusal, Support for Reasonable Suspicion for Blood Draw
State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:
¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation,
OWI — Implied Consent — Non-English Speaking Driver
State v. Ibrahim Begicevic, 2004 WI App 57
For Begicevic: Donna J. Kuchler
Issue: Whether reading the “Informing the Accused” form in English to a non-English speaking driver was an unreasonable way of conveying required implied consent warnings.
Holding:
¶21. Kennedy did not attempt to obtain an interpreter. When Kennedy read the Informing the Accused in English, Gasse did not translate the form verbatim nor did he make an effort to explain the rights in the form in German to Begicevic.
§ 940.225(2)(g), Sexual Assault – Elements: Employee of In-Patient Treatment Facility Within § 940.295(2) / § 50.135(1)
State v. John F. Powers, 2004 WI App 156
For Powers: Marcus J. Berghahn; John D. Hyland
Issue/Holding: An employee of the Tomah VA Medical Center is not an employee of an in-patient treatment facility within the meaning of §§ 940.225(2)(g), 940.295(2)(b), (c), (h), (k), and 50.135(1), because the Center is not licensed or approved by DHFS, ¶11, and the pending charge under that section must therefore be dismissed,
OWI – Proof of Priors – Certified DOT Driving Transcript
State v. Kevin J. Van Riper, 2003 WI App 237
For Van Riper: Anthony L. O’Malley
Issue/Holding:
¶13. Thus, the cumulative effect of Wideman and Spaeth is as follows: (1) the proof requirements of Wis. Stat. § 973.12(1), the repeater statute in the criminal code, do not apply in OWI prosecutions (Wideman); and (2) a DOT teletype is competent proof of a defendant’s prior convictions (Spaeth)
.…
¶16.
OWI – Multiple Enhancers – §§ 346.65(2), 939.62
State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta
Issue/Holding:
¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney’s penalty twice for count one of his judgment of conviction.
OWI – Implied Consent Law – Alternative Chemical Test
State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03
For Keith: Christopher A. Mutschler
Issue/Holding:
¶10 WISCONSIN STAT. § 343.305(5)(a) requires police to offer an alternative chemical test to persons who submit to a chemical test under § 343.305 and who request an alternative test.
…
¶12 The record shows that after Keith’s arrest, while traveling to the hospital,
OWI – PBT – Probable Cause to Administer
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Authority to administer a preliminary breath test requires probable cause to believe a drunk driving law has been violated. ¶23. Probable cause existed here, given the driver’s (mild) odor of intoxicants; the “suspicious circumstance” of the collision (i.e., with a child on an unobstructed street, and the driver allegedly watching for children);
OWI – Refusal – Right to Counsel
State v. Richard L. Verkler, 2003 WI App 37
For Verkler: Christopher A. Mutschler
Issue/Holding:
¶1. In State v. Reitter, 227 Wis. 2d 213, 217-18, 595 N.W. 2d 646 (1999), our supreme court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the implied consent setting.