On Point blog, page 54 of 89
Fleeing, § 346.04(3); Evidence – Character Trait of Victim
State v. Daniel H. Hanson, 2010 WI App 146 (recommended for publication), affirmed 2012 WI 4; for Hanson: Chad A. Lanning; case activity
Fleeing, § 346.04(3)
Can you criminally “flee” the police, if what you’re actually doing is driving to the nearest police station to escape what you believe to be a beating at the hands of the officer you’re fleeing?
State v. Lee Anthony Batt, 2010 WI App 155
court of appeals decision (recommended for publication); for Batt: Chad A. Lanning; BiC; Resp.; Reply
OWI – Implied Consent Law – § 343.305(5)(a) Testing
Construing State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), the court concludes that the Implied Consent law affords the driver the right to choose testing administered by the law enforcement agency at no expense to the driver,
State v. Donovan M. Burris, 2009AP956-CR, Wis SCt rev granted 9/21/10
decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein
Issue (from Table of Pending Cases):
Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183,
Richard M. Fischer v. Ozaukee Co. Circ. Ct., 741 F. Supp. 2d 944 (E.D. Wis. 2010)
federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11
Habeas Review – Right to Present Defense – Expert Opinion, Based PBT
Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303 on PBTs,
OWI – Collateral Attack on Priors
State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10
court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply
A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,”
OWI / Refusal – Informed Consent Law
Door County v. Andrew M. LaFond, 2010AP976, District 3, 9/28/10
court of appeals decision (1-judge, not for publication); for LaFond: Robert C. Raymond; BiC; Resp.; Reply
The court rejects an argument that a driver has a due process right to be informed that a blood sample can be taken forcibly upon refusal to consent to a blood draw.
¶8 Our supreme court has held that the information required by what is now WIS.
Battery – Self-Defense – Sufficiency of Evidence; Sanctions – Improper Briefing
State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10
court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.
Battery – Self-Defense – Sufficiency of Evidence
A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.
Manipulation of Adult Jurisdiction over Juvenile Offense; Bail Jumping – Jurisdiction to Impose Conditions; Sanctions – Appellate Violations
State v. Drew E. Bergwin, 2010 WI App 137; for Bergwin: Roberta A. Heckes; BiC; Resp.; Reply
Manipulation of Adult Jurisdiction over Juvenile Offense
When the State brings a criminal charge against an adult defendant for an offense committed as a juvenile, the State must affirmatively show that the delay in charging wasn’t intended to manipualte the system to avoid juvenile court jurisdiction,
Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence
City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply
Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs
The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment,
Obstructing – Unanimity – Course of Conduct; Obstructing – Sufficiency of Proof
State v. Jennette L. Ellifritz, 2010AP713-CR, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply
Obstructing – Unanimity – Course of Conduct
Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict;