On Point blog, page 24 of 87
SCOW says circuit courts never ever lack subject matter jurisdiction over OWIs or other matters
City of Eau Claire v. Melissa M. Booth Britton, 2016 WI 65, 7/12/16, reversing a circuit court order on bypass, case activity (including briefs)
OWI specialists, pay attention to this case! It abolishes subject matter jurisdiction challenges to improperly-charged 1st offense OWIs. Everyone else, pay attention too. Justice Abrahamson’s 33-page dissent offers a comprehensive analysis of how the majority opinion (written by R.G. Bradley) fundamentally misunderstands circuit court competency and subject matter jurisdiction and broadly impacts public policy as well as civil and criminal litigation.
Consent to blood test was valid despite officer’s statement that a warrant wasn’t needed
State v. Navdeep S. Brar, 2015AP1261-CR, District 4, 7/7/16 (one-judge decision; ineligible for publication),petition for review granted 12/19/2016, affirmed, 2017 WI 73 ; case activity (including briefs)
The record supports the circuit court’s conclusion that Brar consented to a blood test after his arrest for OWI and that his consent was voluntary.
Jeremy Perri Guest Posts: SCOW says flip phones are “computerized communication systems”
State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)
SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally, SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.”
Constitutional challenge to penalty enhancer for using a computer to facilitate a child sex crime fails
State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)
The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.
House’s front porch is a “public place”
State v. Tory C. Johnson, 2015AP1322-CR, 6/28/2016, District 1 (not recommended for publication); case activity (including briefs)
Tory Johnson raises various challenges to his jury-trial conviction for resisting an officer causing substantial bodily harm.
SCOTUS: Warrantless alcohol breath tests reasonable, blood tests not
Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)
Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?
State barred from amending OWI charge from felony to misdemeanor
State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)
This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.
Logic dictates that invalid blood test results aren’t per se inadmissible at OWI trials
State v. Keith A. Wiedmeyer, 2016 WI App 46; case activity (including briefs)
In an impressive of feat of judicial activism, the court of appeals here rewrites §343.305(5)(d) and (6)(a) and defies precedent to achieve its desired outcome: the admission of statutorily invalid blood test results at OWI trials. On Point looks forward to SCOW’s take on this published court of appeals decision.
Evidence sufficient to support verdict of drugged driving
Walworth County v. James E. Robinson, Jr., 2015AP2504-FT, 5/18/16, District 2 (one-judge decision; ineligible for publication); case activity (including memo briefs)
The County needed to prove Robinson drove his motor vehicle on a highway while under the influence of a drug to a degree which rendered him incapable of safely driving, § 346.63(1)(a). It succeeded.
Evidence sufficient; judge’s ex parte communication harmless
State v. Jeffrey S. Decker, 2015AP1997-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity
Jeffrey Decker had been banned from the UW-Oshkosh, and was arrested when he arrived at a grand opening event. The arrest was not without incident and he was charged with obstructing an officer and convicted after a jury trial.