On Point: 9. Crimes

City of Cedarburg v. Ries B. Hansen, 2018AP1129, petition for bypass granted 2/12/19; case activity (including briefs)

Issue (from petition for bypass):

City of Eau Claire v. Booth, 2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738 held that when a circuit court handles a 1st offense OWI that is mischarged due to an unknown prior offense, it is a defect in the circuit court’s competency but not the circuit court’s subject matter jurisdiction. Accordingly, a defendant must timely object to the circuit court’s lack of competency or the objection is forfeited. Is the same true when the mischarged OWI is in municipal court?

State v. James R. Mueller, 2018AP44-CR, 2/12/19, District 3 (1-judge opinion, eligible for publication); case activity (including briefs).

Mueller conceded that an officer had reasonable suspicion to stop him. He argued that the officer extended the stop based on a “hunch” and that his FSTs results did not provide probable cause for arrest or sufficient evidence to convict him because they test for impairment by alcohol, not prescription meds.

State v. Marco A. Lopez, Sr., 2018AP159-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs).

The State charged Lopez with child sexual assault of two victims and moved to admit the of testimony of two additional relatives who said that they were also assaulted by Lopez for years when they were the same ages as the victims. Lopez conceded the first two elements of the “other acts” evidence test. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998),  §904.04(2) and §904.03. He argued that the trial court incorrectly weighed the probative value of the evidence against the danger of unfair prejudice.

County of Green v. Joey Jay Barnes, 2018AP1382, District 4, 2/7/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court dismissed charges against Barnes after suppressing some of the evidence against him. Not so fast, says the court of appeals.

Village of Menomonee Falls v. Kristina L. Smithers, 2018AP993, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court properly rejected Smithers’s invocation of an involuntary intoxication defense in her prosecution for operating while under the influence of the prescription medication she was taken as prescribed.

State v. Nathan Alan Bise, 2017AP1662, District 4, 1/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Bise raises three challenges to the finding he improperly refused a breath test. The court of appeals rejects them all.

City of Crandon v. Lynda Morris, 2017AP2266, District 3, 1/15/19 (one-judge decision; ineligible for publication); case activity (including brief of appellant; respondent didn’t file one….)

The circuit court improperly jumped the gun by ordering Morris’s driver’s license to be revoked for refusal before the 10-day deadline for her to request a refusal hearing. But she never asked for a refusal hearing, and once the deadline to do so passed the circuit court lost competency to undo the revocation—even though the associated OWI 3rd charges were ultimately thrown out after the evidence was suppressed.

State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2019 WI App 2, petition for review granted 4/9/19, affirmed by a divided court, 2019 WI 101; Lopez case activity; Rodriquez case activity).

Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000 based on seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500. (¶2). Can the state aggregate the incidents into a single felony count under § 971.36, or does that create a duplicity problem (charging two or more offenses in a single count) that must be avoided by charging seven separate misdemeanors? Aggregate away! sayeth the court of appeals.

State v. Stuart W. Topping, 2018AP318, 2/6/18, District 4 (1-judge opinion, ineligible for publication); case activity (including brief)

You don’t see this very often. Topping, represented by counsel, filed an initial brief. The State never responded. That might have been cause for summary reversal. But here Topping’s challenge to the circuit court’s finding that he refused to submit to a breath test after his arrest for OWI failed even though it was unopposed

State v. Jessica M. Randall, 2017AP1518, petition for review of unpublished opinion granted 10/9/18; case activity

Issue:

Was Randall entitled to suppression of the results of a test of a blood sample that she voluntarily gave to police under the implied consent law because she informed the lab that she was withdrawing her consent before the lab had analyzed the blood to determine the presence and quantity of drugs and alcohol?