On Point blog, page 33 of 87
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 The use of the outdated form didn’t strip the resulting blood test result of its statutory presumption of admissibility and accuracy,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.”
Equivocal answers amount to refusal to submit to blood test
State v. Carl J. Opelt, 2013AP1798, District IV, 12/27/13 (1-judge decision, ineligible for publication); case activity.
Police arrested Opelt for OWI. While transporting him to the hospital, an officer asked him 14 times to submit to an evidentiary chemical test of his blood. The circuit court found that Opelt refused to promptly submit to the test and thus revoked his operating privileges pursuant to implied consent law,
Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case
State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity
After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it. Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.
Wisconsin Supreme Court: Discretionary authority to dismiss refusal charges is limited to cases in which defendant pleads guilty to underlying OWI
State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity
In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI.
Trial counsel was not ineffective for failing to argue officers in resisting arrest case acted without lawful authority
State v. Andrew K. Valiquette, 2013AP909-CR, District 4, 12/19/13; court of appeals decision (1-judge; ineligible for publication); case activity
Valiquette, convicted of resisting arrest, argues the police lacked lawful authority when they moved to pat him down for weapons, and asserts trial counsel’s failure to pursue that defense was based on a misunderstanding of the applicable law. The court of appeals disagrees, concluding instead that trial counsel’s testimony indicates she made a strategic decision to focus on the issue of whether Valiquette resisted instead of whether the police were acting with lawful authority.
First Amendment protects juvenile’s “crude and vulgar” YouTube video against disorderly conduct charge, but not against charge of unlawful use of computerized communication system
State v. Kaleb K., 2013AP839, District 4, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
Kaleb posted a video on YouTube that depicted him “rapping” a song about his Spanish teacher. The song used “crude and vulgar sexual language” about the teacher. (¶2). (The trial court was harsher, characterizing the video as “obscene and hate-filled” and “shocking, hard to watch, really disgusting.” (¶3).) Based on the video Kaleb was charged in juvenile court with disorderly conduct under § 947.01(1) and unlawful use of a computerized communication system under § 947.0125(2)(d).
Trial court properly concluded officer did not have probable cause to arrest defendant for OWI
Fond du Lac County v. Randal B. Hopper, 2012AP1719, District 2, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court properly concluded the defendant did not unlawfully refuse to provide a breath sample because the officer lacked probable cause to arrest him for OWI:
¶10 Considering the collective knowledge of dispatch and the arresting deputy at the time the deputy arrested Hopper,