On Point blog, page 8 of 33
Defense win: New trial ordered due to evidence suggesting defendant was repeat drunk driver
State v. Ryan C. Diehl, 2020 WI App 16; case activity (including briefs)
At Diehl’s trial for operating with a blood-alcohol content exceeding .02, the state asked the arresting officer and Diehl himself multiple questions that invited the jury to infer he had multiple OWI convictions. Because these questions were irrelevant and unfairly prejudicial, trial counsel was ineffective for failing to object to them, and Diehl is entitled to a new trial.
Court didn’t err in reopening evidence at refusal hearing
State v. Bartosz Mika, 2019AP1488, District 2, 2/19/20 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court appropriately exercised its discretion in continuing Mika’s refusal hearing so the state could call another witness, and the testimony of the additional witness established police had reasonable suspicion to stop Mika.
Consent to draw blood was voluntary
State v. Justin T. Kane, 2018AP1885-CR, District 4, 2/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Kane’s consent to a blood draw after his arrest for OWI was voluntary under all the circumstances.
SCOW expands municipal court jurisdiction, curbs collateral attacks on OWIs
City of Cedarburg v. Ries B. Hansen, 2020 WI 11, 2/11/19 (on bypass of the court of appeals); case activity (including briefs)
Municipal courts have subject matter jurisdiction over ordinance violations (e.g. an OWI 1st), and circuit courts have subject matter jurisdiction over misdemeanors and felonies (e.g. an OWI 2nd or subsequent). In this 4-3 decision, SCOW holds that a municipal court had subject matter jurisdiction over an OWI 2nd that was mischarged as an OWI 1st.
Officer complied with implied consent law
State v. Anthony J. Madland, 2019AP146-CR, District 3, 1/28/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Madland asserted that he requested an alternative chemical test under § 343.305 and that the officer who read the “informing the accused” form to him misled him as to his right to request an alternative test. The court of appeals rejects the claims in light of the circuit court’s fact findings.
SCOW’s decision in Randall is binding on whether consent to blood test can be withdrawn
State v. John W. Lane, 2019AP153-CR, District 4, 10/17/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Lane consented to a blood draw after his OWI arrest, but a week later wrote the State Hygiene Lab saying he was revoking his consent to the collection and testing of his blood. The authorities tested the blood anyway. Lane’s challenge to the test result is foreclosed by State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223.
Barring PBT evidence didn’t violate right to present defense
State v. Jude W. Giles, 2018AP1967-CR, District 3, 10/8/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Jude’s sought to admit the results of his preliminary breath test results (.076) to lay a foundation for his expert’s opinion that alcohol was still being absorbed into his blood, making the state hygiene lab’s blood test result (.144) higher than his blood alcohol content at the time he was driving. (¶¶2-5). The circuit court properly disallowed the evidence because it runs smack dab into § 343.303 and State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d, both of which strictly prohibit the admission of PBT results.
A riding lawn mower is a “motor vehicle” for purposes of OWI statute
State v. Keith H. Shoeder, 2019 WI App 60; case activity (including briefs)
So if you’re going to drink and drive your riding mower, stay on your lawn.
Standard OWI jury instruction sufficiently conveyed meaning of “impaired”
State v. Kari E. Mravik, 2018AP2300-CR, District 4, 8/29/19 (one-judge decision; ineligible for publication); case activity (including briefs)
At her OWI 2d trial, Mravik asked the judge to modify Wis. J.I.—Criminal 2663’s definition of “under the influence of an intoxicant.” The trial judge declined. The court of appeals finds no error because the instruction as a whole conveys the correct meaning of the phrase.
Statements driver made before arrest admissible; so was retrograde extrapolation testimony
State v. Christopher J. Durski, 2018AP1750-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Durski was arrested at a motel, where he had decamped after a family dispute. In investigating the family dispute police learned Durski drank alcohol before leaving for the motel, so they tracked him down. Durski wasn’t in custody during the officers’ initial questioning of him at the motel, so his statements were admissible despite the lack of Miranda warnings. So was the state’s retrograde extrapolation evidence.