On Point blog, page 5 of 33
COA holds error in information didn’t invalidate repeater enhancer
State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)
Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.
COA reverses 15-day suspension of operating privileges
County of Grant v. Brad Alan Hochhausen, 2022AP1065, 4/13/23, District 4; (1-judge opinion, ineligible for publication); case activity (including briefs)
Hochhausen was convicted of speeding under §346.57(5). The circuit court imposed a 15-day suspension of Hochhausen’s operating privileges and a civil forfeiture pursuant to §343.30(1n). On appeal he argued that §343.30(1n) does not apply to convictions under §346.57(5), The court of appeals agreed and reversed.
Defense win! COA affirms suppression of breath and blood tests due to DA’s errors
State v. Craig R. Thatcher, 2020AP1734, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs).
A state trooper stopped Thatcher for a suspected OWI, the trooper read the Informing the Accused Form, and, according to Thatcher, provided additional, misleading information that influenced his decision to consent to a breath test in violation of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995). The court of appeals affirmed the circuit court’s decision to suppress the results of the breath test and also the results of the subsequent blood.
Officer’s additional information didn’t mislead driver about blood test
County of Dunn v. Kevin J. Cormican, 2020AP1895, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)
After being convicted of OWI 1st, Cormican appealed the denial of his motion to suppress the results of his blood test. He first argued that the arresting officer gave him information beyond what is on the Informing the Accused (ITA) card that was misleading and affected his decision to consent to the test. He also argued that due to the misleading information, his consent to the blood test was involuntary. The court of appeals affirmed.
COA takes tough stand on Wisconsin’s accident reporting statute
County of Monroe v. Kling, 2022AP339, 12/30/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)
Section 346.70(1) governs a driver’s duty to report a car accident. When the accident does not cause injury or death, the driver must report the “total damage to property owned by any one person. . . to an apparent value of $1,000 or more” to the authorities by “the quickest means of communication.” There are no published opinions interpreting and applying this language. This decision construes it against drivers and affirms the civil forfeiture entered against Kling.
Defendant failed to make timely jury demand in OWI 1st case
Washington County v. Justin David Dettmering, 2022AP941, District 2, 12/21/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Dettmering didn’t demand a jury within the time indicated on the citation he was issued for OWI 1st, but he later claimed he should get a jury because he wasn’t advised of his right to a jury at his first court appearance as required by § 345.34(1). The court of appeals rejects his claim.
Extra information from officer about implied consent law didn’t make refusal proper
State v. Roman C. Ozimek, 2021AP452, District 3, 11/22/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Ozimek challenges the revocation of his driving privileges for refusing a blood draw after he was arrested for OWI. The court of appeals rejects his claim that the circuit court should have considered evidence that the officer misinformed Ozimek of his “constitutional right” to obtain his own chemical testing without having to first consent to the officer’s request for chemical testing.
Minor passenger in car operated by intoxicated driver is a “victim” for purposes of restitution statute
State v. Mark J. Gahart, 2022 WI App 61; case activity (including briefs)
The court of appeals holds that driving while intoxicated with a minor passenger is not a victimless crime: the minor passenger is a victim for purposes of the restitution statute.
COA finds sufficient evidence of boating while intoxicated
State v. Jeffrey S. Wein, 2021AP1696-98, 9/7/22, District 2 (one-judge decision; ineligible for publications) case activity (including briefs)
Wein appeals convictions of three civil offenses arising from what the state says was his driving of a pontoon boat while he was drunk. The only issue for each charge is whether he, rather than someone else on the boat, was driving.
SCOW holds previous blood-draw refusals can’t be OWI “priors”
State v. Scott William Forrett, 19AP1850, 2022 WI 37, 6/3/2022, affirming a published court of appeals decision; case activity (including briefs)
In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying it imposes increased criminal penalties on those who assert their Fourth Amendment right to refuse a warrantless blood draw. This means that Forrett’s conviction in the case before the court–for an OWI from 2017–is a sixth, not a seventh, offense.