On Point blog, page 9 of 34
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SCOW’s decision in Randall is binding on whether consent to blood test can be withdrawn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.
Second attempt to challenge 1995 license revocation fails, too
State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.
Felony OWI with a minor passenger is an unclassified felony
State v. James A. Culver, 2018AP799-CR, District 4, 7/25/19 (not recommended for publication); case activity (including briefs)
Back in 2008 Culver was convicted and sentenced for OWI, fifth offense, with a minor in the car, which doubles the minimum and maximum penalties, § 346.65(2)(f). Now that his extended supervision (ES) is being revoked he challenges the length of the ES term originally imposed. He argues the presence of a minor is a penalty enhancer, which lengthens the term of initial confinement but not the term of ES, see § 973.01(2)(c)1. and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. No, says the court of appeals, under State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 NW.2d 872, OWI with a minor passenger is an unclassified felony, so the term of ES is increased, too.
Challenge to blood test quickly disposed of
State v. Lonnie P. Ayotte, Jr., 2018AP839-CR, 7/25/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Like Jessica Randall, Ayotte consented to a blood draw after his OWI arrest but then asserted his right to privacy in his blood and told authorities they couldn’t test his blood for alcohol without a warrant. As they did with Randall, the authorities tested the blood anyway. And like Randall,
SCOW: Driver can’t revoke consent to test of validly drawn blood sample
State v. Jessica M. Randall, 2019 WI 80, 7/2/19, reversing an unpublished court of appeals decision; case activity (including briefs)
A majority of the supreme court holds that a person who has been arrested for OWI and consented to a blood draw cannot prevent the testing of the blood sample for alcohol or drugs by advising the state she is revoking her consent.