On Point blog, page 31 of 34
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.
OWI – Evidence – Intoximeter EC/IR – Approval of Instrument by DOT
State v. Larry N. Winsand, 2004 WI App 86, PFR filed 4/12/04
For Winsand: Ralph A. Kalal
Issue: Whether results of an Intoximeter EC/IR breath test was inadmissible because approval of this testing instrument by the chief of the DOT chemical test section involved standards that should have been but were not promulgated as administrative rules under ch. 227.
Holding:
¶7.
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,