On Point: B. Chs. 343-346: Traffic offense

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.