On Point blog, page 5 of 34
COA rejects constitutional challenge to legislature’s inclusion of non-impairing metabolite as restricted controlled substance
State v. Dustin J. VanderGalien, 2023AP890-CR, 12/29/23, District 4 (recommended for publication); case activity
VanderGalien pled no contest to three counts stemming from a fatal motor vehicle crash after a non-impairing cocaine metabolite (benzoylecgonine or “BE”) was detected in his blood hours after the incident. The court of appeals rejects his facial challenge to the statute, Wis. Stat. § 340.01(50m)(c), which includes BE as a restricted controlled substance under the motor vehicle code. The court of appeals explains that “the inclusion of cocaine or any of its metabolites in the definition of a restricted controlled substance for purposes of prosecution under the Wisconsin motor vehicle code bears a rational relationship to the purpose or objective of the statutory scheme,” which is to combat drugged driving. Op., ¶30.
COA rejects argument that margin of error undermined sufficiency of evidence for PAC conviction
Columbia County v. Carter Ray Smits, 2023AP241, 12/7/23, District IV (one-judge decision; ineligible for publication); case activity
Despite the analyst’s testimony that, given the margin of error for the lab result, it was “equally likely” Smits was under as opposed to over the legal limit, COA affirms.
COA upholds circuit court’s decision to exclude defendant’s proffered evidence regarding field sobriety tests at PAC trial
State v. Batterman, 2022AP181, 11/28/23, District III (ineligible for publication); case activity
Given the discretionary standard of review used to assess a circuit court’s evidentiary rulings, COA wastes no time in upholding the court’s order excluding evidence the defendant did well on some field sobriety tests at a second offense PAC trial.
COA rejects affirmative defense to refusal
State v. Matthew E. Sullivan, 2023AP2138, 10/19/23, District IV (one-judge decision; ineligible for publication); case activity
Prior to his refusal hearing, Sullivan requested a continuance so he could obtain counsel. The circuit court denied his request. Sullivan then represented himself and challenged the sought after revocation by relying on the affirmative defense that a “physical disability or diseased unreleated to the use of alcohol” caused him to refuse the test. See Wis. Stat. § 343.305(9)(a)5.c. The circuit court rejected Sullivan’s affirmative defense and revoked his license. The court of appeals affirms.
COA upholds circuit court’s finding of an “unlawful” refusal
State v. Bryson Keith Williams, 2023AP838, 10/4/23, District II (one-judge decision; ineligible for publication); case activity
Applying the familiar test for assessing the adequacy of the officer’s reading of the implied consent warnings, COA agrees that Williams’ refusal was unlawful.
COA rejects multiple challenges to first-offense OWI and refusal convictions and affirms
City of Whitewater v. Douglas E. Kosch, 2022AP800, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)
Although Kosch throws the kitchen sink at his OWI and refusal convictions, COA methodically works through his myriad challenges on a path toward affirmance.
Officer substantially complied with the “Informing the Accused” statute
State v. Danial Christopher Wheaton, 2022AP2082-CR, District 4, 7/27/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The officer who arrested Wheaton for OWI flubbed the first clause of the first sentence of the “Informing the Accused” script set out in § 343.305(4), but still substantially complied with the statute.
Defense win: Defendant alleged sufficient facts to get a hearing on his motion to reopen a default refusal judgment
State v. Peter John Long, 2022AP496, District 2, 5/3/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The state concedes, and the court of appeals agrees, that Long is entitled to a hearing on his motion to reopen the default judgment entered in his refusal proceeding.
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.