On Point blog, page 7 of 33
Driver can’t refuse chemical test based on right to counsel
Washington County v. James Michael Conigliaro, 2020AP888, District 2, 12/9/20 (1-judge opinion, ineligible for publication); case activity (including briefs)
Conigliaro appealed an order finding that he refused to submit to an evidentiary chemical test. He argued that the arresting officer, Joseph Lagash, led him to believe that he had the right to consult with an attorney before deciding whether to submit to the test and/or that Lagash failed to dispel his belief that he had the right to counsel. The court of appeals rejects both arguments.
Challenges to OWI arrest, jury instruction rejected
State v. Steven L. Sternitzky, 2019AP2185-CR, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Sternitzky argues he was arrested for OWI without probable cause and that his trial on the charge was marred by the judge’s instruction to the jury regarding the presumption of intoxication and automatic admissibility of chemical test results. The court of appeals rejects both arguments.
“Lifetime” means “lifetime”….
State v. Jack Ray Zimmerman, Jr., 2020AP475, District 2, 11/4/20 (one-judge decision; ineligible for publication); case activity (including briefs)
….not “lifetime since January 1, 1989.”
Driver’s failure to refuse or submit to a chemical breath test is an unlawful refusal
Washington County v. Kelly L. Springer, 2020AP491, 10/21/20, District 2 (1-judge opinion, ineligble for publication); case activity (including briefs)
After being stopped for a suspected OWI, Springer failed field sobriety tests and his preliminary breath test showed a .18% blood alcohol content. A sheriff read the Informing the Accused form and asked if he would submit to a chemical test of his breath. Springer did not answer even after being asked 6 to 7 times. Then he said: “I already gave you my test.” The sheriff took this to mean “no.” The circuit court held the refusal unlawful under §343.305(9)(a) of Wisconsin’s implied consent law , and the court of appeals affirmed.
Challenges to implied consent law and refusal go nowhere
Village of Lomira v. Phillip N. Benninghoff, 2020AP31, District 4, 10/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Benninghoff tries to raise a bevy of challenges to the implied consent law and to the revocation of his driving privileges for refusing a blood draw. His challenges are forfeited because he failed to file a timely request for a refusal hearing and, in any event, the arguments aren’t suitably developed or are foreclosed by State v. Levanduski, 2020 WI App 53.
Evidence sufficient to prove that blood analyst had valid permit for alcohol testing
State v. Michael J. Pierquet, 2009AP2099-Cr, 10/14/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
A jury convicted Pierquet of operating a motor vehicle with a Prohibited Alcohol Content. He argued that the circuit court erred in admitting the results of his blood test and in giving them prima facie effect because the State failed to prove that the analyst who performed the test possessed a valid permit for alcohol testing. The court of appeals disagreed because an employee of the State Lab of Hygiene testified that all of the analysts at the Lab hold a valid alcohol analysis issued by the state.
Error in the “Informing the Accused” form doesn’t help drivers accused of OWI
State v. Scott W. Heimbruch, 2020 WI App 68; case activity (including briefs)
When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.
COA gives lengthy gloss on Mitchell v. Wisconsin, affirms conviction
State v. Donnie Gene Richards, 2020 WI App 48; case activity (including briefs)
Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.
Court of appeals rejects challenges to blood-urine form and lab report
State v. Christopher Drew Helwig, 2019AP448-CR, 6/4/20, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)
The circuit court admitted a blood/urine analysis form and lab report containing blood test results into evidence during Helwig’s OWI trial. On appeal Helwig argued that these documents were hearsay. And because the nurse who drew the blood did not testify at trial, the admission of these documents violated the Confrontation Clause. The court of appeals rejects both arguments.
COA holds entry into home valid community-caretaker act; blood draw was exigency
State v. Shannon G. Potocnik, 2019AP523, 4/14/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)
There’s a deep split nationwide about whether the community caretaker doctrine can ever permit entry into a home. Wisconsin has held that it can, and this pro se appeal is of course necessarily fact-bound. But the decision is thorough and provides a good summary of state community-caretaker law as it stands, along with a much briefer discussion of blood draws based on exigency.