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

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.

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.)

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.

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.

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.

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.

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.”

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.