On Point blog, page 62 of 87
Implied Consent – Test for Adequacy of Warning, Generally
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding:
¶7 … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8 … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.
Refusal, § 343.305(9) and Implied Consent Law – Interaction with Miranda Warnings
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):
¶14 There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused.
OWI – “Materially Impaired” – Judicial Construction, State v. Waalen, Absorbed into Elemental Meaning
State v. Jonathan J. Hubbard, 2007 WI App 240, (AG’s) PFR filed 11/20/07
For Hubbard: Steven Zaleski
Issue/Holding: The construction of “materially impaired” by State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), clarifies the meaning of that OWI element:
¶9 In Waalen, … (t)he court stated that material impairment “exists when a person is incapable of driving safely,
Conspiracy – § 939.31, Elements – Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶18 Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:
…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may,
Conspiracy — § 939.31 – Sufficiency of Evidence – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶36 Routon, as noted above, argues that the single sale to Agent Smith is, as a matter of law, insufficient evidence of an agreement. However, in the cases on which he relies, there was no evidence, as there is here,
§ 940.09(2), Defense to Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and,
OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
§ 943.20(1)(d), Theft by Fraud – Civil Tort Law, as Aid to Construction
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶17 Wisconsin Stat. § 943.20(1)(d) prohibits a type of fraud, which is addressed by both criminal and civil tort law. See State v. Timblin, 2002 WI App 304, ¶31, 259 Wis. 2d 299, 657 N.W.2d 89. While there are no common law crimes, this court has consulted civil tort law as an aid to interpreting the criminal fraud statutes.
Theft by Fraud, § 943.20(1)(d) – Element of Misrepresentation – Satisfied by Failure to Discharge Duty to Disclose
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶18 A representation can be acts or conduct. See Stecher v. State, 168 Wis. 183, 186, 169 N.W. 287 (1918). In Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, our supreme court laid out the circumstances where a failure to disclose can constitute a representation.
Prostitution, § 944.30(1) – Sufficiency of Evidence – On Charge of Soliciting Intercourse: Offer to Watch Subject Masturbate
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue: Given that, as charged, the offense required soliciting “sexual intercourse” (which in turn is defined as “vulvar penetration”), whether the statement “that he was looking for sex and he wanted me to masturbate and that he wanted to watch” is sufficient to support conviction.
Holding:
¶7 Although Turnpaugh said he was “looking for sex,” he limited the scope of that phrase by describing >what he was willing to pay for—watching Ferguson masturbate.