On Point blog, page 6 of 33
Driver’s prior IID order hadn’t expired, so his prohibited alcohol concentration was 0.02, not 0.08
State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)
When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.
Police had probable cause to arrest for operating with a restricted controlled substance
Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.
Police had probable cause to arrest for OWI for purposes of refusal statute
State v. Taras O. Haliw, 2021AP1095, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Haliw argues his license shouldn’t be revoked for refusing a chemical test for alcohol because the police didn’t have probable cause to arrest him for OWI, see § 343.305(9)(a)5.a. The court of appeals rejects his argument.
Defense win: Modification to standard jury instruction on driving while impaired by drugs relieved state of burden of proof
State v. Carl Lee McAdory, 2021 WI App 89; case activity (including briefs)
McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”
COA affirms probable cause finding in alcohol test refusal case
State v. Edward R. Gasse, 2021AP484, 9/29/2021, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Gasse arrived at the police station shortly after midnight; officers had observed him about 80 minutes prior at his residence and believed him to be drunk. He initially said he’d driven there but later changed his story; video surveillance revealed that he had, in fact, driven. After some limited field sobriety testing, the officer at the station arrested him and he refused to consent to chemical testing. He appeals the circuit court’s determination that there was probable cause for the arrest and thus that the refusal citation was lawful.
Circuit court’s finding of refusal upheld
State v. Derek V. Schroth, 2021AP733, District 2, 8/25/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Schroth challenges the probable cause to arrest him for OWI and the finding that he refused a blood draw. There were ample facts for probable cause. (¶¶3-8, 13-15). And though the arresting officer couldn’t recall whether Schroth said “no” or “something else” when asked to submit to a blood draw,
Expert testimony citing retrograde extrapolation of BAC was admissible
St. Croix County v. Kelly M. Lagerstrom, 2019AP928, District 3, 8/10/21 (one-judge decision; ineligible for publication); case activity (including briefs)
As in State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, retrograde extrapolation testimony from a toxicologist was admissible as evidence of Lagerstrom’s possible blood alcohol content around the time the state alleged he drove his car into a ditch.
COA: cops not required to offer less intrusive test than blood draw under IC law
State v. Charles L. Neevel, 2021AP36, 7/1/21, District 4 (one-judge decision ineligible for publication) case activity (including briefs)
Neevel was arrested on suspicion of drunk driving. The officer read him the implied consent “informing the accused” form, and Neevel agreed to a blood draw. He moved to suppress, lost, and pleaded no contest to OWI. On appeal, he renews the argument he made in trial court: that the officer should instead have ordered a less intrusive test, such as a breath test. (The officer did, in reading the form, tell Neevel he could have an alternative in addition to the blood draw; Neevel’s contention is that he should have been offered a different test instead of the blood draw.)
Immediate police investigation, testimony not a prerequisite to OWI prosecution
City of Cedarburg v. Katherine D. Young, 2020AP1848, District 2, 3/17/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Young was prosecuted for an OWI 1st offense that did not arise out of a traffic stop or involve police collecting blood or breath samples or even testifying at trial. Can that be done? Sure, it can. And the evidence that was presented at trial was sufficient to convict her, too.
Evidence sufficient for disorderly conduct conviction
State v. Samuel Martin Polhamus, 2019AP2339-CR, 1/28/21, District 4 (1-judge opinion, ineligible for publication); case activity
The State charged Polhamus with bail-jumping and disorderly conduct. A jury acquitted on the first charge and convicted on the second. Polhamus appealed pro se and, according to the court of appeals, appeared to argue that the State’s evidence of his alleged disorderly conduct both inside and outside of a bar was insufficient.