On Point blog, page 32 of 87
Failure to preserve evidence rule from Youngblood applies even though defendant wasn’t notified of right to test evidence before it was destoyed
State v. Jessica M. Weissinger, 2014 WI App 73, petition for review granted 10/15/14, affirmed, 2015 WI 42; case activity
Saying it is bound by the rule from Youngblood v. Arizona, 488 U.S. 51 (1988), the court of appeals holds that the state’s destruction of a blood sample before the defendant was notified of her option to test the sample did not violate her due process rights because she has not shown the sample was “apparently exculpatory.” A vigorous dissent says the majority reads Youngblood too broadly, and concludes that because the evidence was inculpatory and necessary to the prosecution, destroying the evidence violated Weissinger’s due process rights even if the state didn’t act in bad faith.
Police had probable cause to arrest for OWI despite lapse between time of driving and time of police contact
State v. Dale F. Wendt, 2014AP174, District 2, 6/18/14 (1-judge; ineligible for publication); case activity
The information known to the deputy at the time he requested Wendt to take a blood test provided probable cause to believe Wendt had driven his vehicle while intoxicated earlier that evening, despite the deputy’s lack of information as to whether Wendt drank during the time that lapsed between his driving and his contact with the deputy.
Theft-by-fraud conviction upheld based on indirect “communication” from defendant to victim
State v. David Phillip Foley, 2013AP1722-CR/2013AP1723-CR; district 1, 6/17/14 (unpublished); case activity
Under § 943.20(1)(d), theft by fraud requires, among other things, that the defendant made a false representation to the owner of the property that the defendant stole. This does not require direct communication between the defendant and the victim. It is sufficient that the defendant made a statement to a third party with the intent or reasonable expectation that it would be communicated to the victim.
SCOTUS: “Straw” purchase prohibition applies even when true purchaser may lawfully own gun
Abramski v. United States, USSC No. 12-1493, 2014 WL 2676779 (June 16, 2014), affirming United States v. Abramski, 706 F.3d 307 (4th Cir. 2013); Scotusblog page (includes links to briefs and commentary)
Resolving a split between federal circuit courts of appeal, the Supreme Court holds that the prohibition in 18 U. S. C. § 922(a)(6) against making false statements about “any fact material to the lawfulness of the sale” of a firearm applies to a “straw” purchaser—a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself—even if the true buyer could have purchased the gun legally.
Lack of scienter requirement in statute prohibiting driving with a detectable amount of a controlled substance doesn’t violate due process
State v. Michael R. Luedtke, 2014 WI App 79, petition for review granted 10/15/14, affirmed, 2015 WI 42 (posts here and here); case activity
Section 346.63(1)(am), which prohibits operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, does not violate due process by failing to require proof that the defendant knowingly ingested the controlled substance. In addition, Luedtke’s due process rights were not violated when the state crime lab destroyed his blood sample before he could have it independently tested.
Implied consent law covering drivers not arrested for OWI is constitutional; defendant’s consent to blood draw was voluntary
State v. Megan A. Padley, 2014 WI App 65; case activity
The implied consent statute that allows an officer to ask for a driver for a blood sample when the officer lacks probable cause to arrest for OWI but has “reason to believe” the driver committed a traffic violation, § 343.305(3)(ar)2., is not facially unconstitutional. In addition, Padley’s consent to the blood draw in this case was voluntary. Finally, the police had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties.
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity
The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.
Steering levers in place of a steering wheel doesn’t make a utility terrain vehicle into a motor vehicle
State v. Shawn N. Hill, 2013AP2549-CR, District 2, 5/7/14 (1-judge; ineligible for publication); case activity
A vehicle registered by the State as a “utility terrain vehicle” under § 23.33(1)(ng) is not a “motor vehicle” under § 340.01(35). Thus, a defendant alleged to have operated the vehicle while intoxicated should have been charged under § 23.33(4c), not § 346.63.
SCOTUS: “Offensive touching” qualifies as a “misdemeanor crime of domestic violence” under federal gun law, 18 USC sec. 922(g)(9)
United States v. James Alvin Castleman, USSC No. 12-1371, 3/26/14, reversing and remanding United States v. Castleman, 695 F.3d 582 (6th Cir. 2012); case activity
As noted in our analysis of SCOTUS’s decision to grant certiorari, the issue in this case is:
Whether [Castleman’s] Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C.
Defendant’s rights to free speech and religious freedom were not violated by prosecution for conspiracy to commit child abuse based on his preaching the use of the rod for child discipline
State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity
The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.