On Point blog, page 33 of 87
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State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity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.
Deadline for requesting refusal hearing runs from the date the driver — not the court — received notice of intent to revoke
Oconto County v. Robert E. Hammersley, 2013AP1263, District 3, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity
The 10-day time period to request a refusal hearing under § 343.305(10)(a) begins when the driver receives a copy of the notice of intent to revoke, not when the court receives a copy. Thus, where a notice of intent to revoke was filed in the circuit court well after the statute’s 10-day time limit had elapsed,
Conviction under § 947.01 for “violent, abusive and otherwise disorderly conduct” qualified as a “misdemeanor crime of domestic violence”
Robert W. Evans, Jr., v. Wisconsin Dep’t of Justice, 2014 WI App 31, overruled by Doubek v. Kaul, 2022 WI 31; case activity
A conviction for disorderly conduct under § 947.01 may qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), thus depriving the defendant of the right to possess a firearm.
Evans’s application for a permit to carry a concealed weapon was denied after DOJ concluded his 2002 disorderly conduct conviction qualified as a “misdemeanor crime of domestic violence.”
Reading old implied consent form didn’t taint admissibility of blood test results
State v. Lawrence A. Levasseur, Jr., 2013AP2369-CR, District 4, 2/6/14; court of appeals decision (1-judge; ineligible for publication); case activity
The arresting officer used an implied consent form that pre-dated the 2009 amendments to § 343.305, so it omitted language about accidents involving death or serious injury–language that did not apply to Levasseur’s situation. The use of the outdated form didn’t strip the resulting blood test result of its statutory presumption of admissibility and accuracy,
SCOTUS unanimously reverses 8th Circuit’s intepretation of causation required by mandatory minimum provision of Controlled Substances Act
Marcus Burrage v. United States, USSC 12-7515, 1/27/14, reversing United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012).
Docket here. SCOTUSblog analysis here.
The Uniform Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.”