On Point blog, page 34 of 87
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State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity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,
Religious objection to blood draw is not relevant at a refusal hearing
State v. Victoria M. Milewski, 2013AP1323, District 4, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
After being arrested for OWI Milewski refused a blood test, saying her Christian Scientist beliefs prohibited her from allowing a needle to be inserted in her body; she offered to provide a urine sample instead. (¶¶2-3). At her refusal hearing she asserted her refusal to submit to the blood test for religious reasons was a reasonable objection under State v.
Victim’s injuries provided sufficient factual basis for plea to first degree reckless injury
State v. Antonio Reyes-Ortiz, 2013AP268-CR, District 1, 11/26/13; court of appeals decision (not recommended for publication); case activity
Reyes-Ortiz argued there was an insufficient factual basis for his plea to first degree reckless injury because the victim’s injuries rose only to the level of “substantial bodily harm” under § 939.22(38), not “great bodily harm” under § 939.22(14), as required by § 940.23(1)(a).
Defects in notice about right to request refusal hearing didn’t excuse untimely filing of request
State v. Sidney H. Sawicky, 2013AP1335, District 3, 11/19/13; court of appeals decision (1-judge; ineligible for publication); case activity
Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121, held that the 10-day limit for requesting a refusal hearing set out in § 343.305(9)(a)4. and (10)(a) is mandatory and cannot be extended, even due to excusable neglect.
Falling asleep behind the wheel constitutes inattentive driving under § 346.89(1)
Dodge County v. Giovanina Louise Ray, 2013AP1588, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity
The general prohibition against inattentive driving in § 346.89(1) covers falling asleep behind the wheel. Ray argued the statutory language prohibiting a person from being “so engaged or occupied as to interfere with the safe driving” of the vehicle required engagement or occupation with something “external” and doesn’t apply to sleeping because,