On Point blog, page 7 of 87
Minor passenger in car operated by intoxicated driver is a “victim” for purposes of restitution statute
State v. Mark J. Gahart, 2022 WI App 61; case activity (including briefs)
The court of appeals holds that driving while intoxicated with a minor passenger is not a victimless crime: the minor passenger is a victim for purposes of the restitution statute.
Court of Appeals: Aiding buyer in drug sale can lead to Len Bias liability because it also aided dealer
State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)
In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.
COA finds sufficient evidence of boating while intoxicated
State v. Jeffrey S. Wein, 2021AP1696-98, 9/7/22, District 2 (one-judge decision; ineligible for publications) case activity (including briefs)
Wein appeals convictions of three civil offenses arising from what the state says was his driving of a pontoon boat while he was drunk. The only issue for each charge is whether he, rather than someone else on the boat, was driving.
Some thoughts on Dobbs
Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808, June 24, 2022, reversing 945 F.3d 265 (5th Cir. 2019); Scotusblog coverage
As you all know, Dobbs overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which held that a woman has a constitutional right to an abortion under the 14th Amendment of the United States Constitution. Dobbs has implications for SPD clients. This post highlights a few.
SCOW holds previous blood-draw refusals can’t be OWI “priors”
State v. Scott William Forrett, 19AP1850, 2022 WI 37, 6/3/2022, affirming a published court of appeals decision; case activity (including briefs)
In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying it imposes increased criminal penalties on those who assert their Fourth Amendment right to refuse a warrantless blood draw. This means that Forrett’s conviction in the case before the court–for an OWI from 2017–is a sixth, not a seventh, offense.
SCOW finds sufficient evidence to reinstate 15 child sexual assault convictions
State v. Donald P. Coughlin, 2019AP1876-CR, 2022 WI 43, reversing an unpublished court of appeals opinion; case activity (including briefs)
How should an appellate court measure the sufficiency of the evidence to support a jury verdict where the instructions and the special verdict define the crime differently? In a 5-1 opinion, the majority held, based on the facts of this particular case, that the jury instructions should control. It then considered whether the evidence of child sexual assault was sufficient even though the State failed to prove that the charged conduct occurred during the charged time periods. The majority drew inferences in favor of the verdict and answered “yes.” Justice Dallett dissented on both points. Justice Karofsky did not participate.
SCOW: Disorderly conduct is not a “misdemeanor crime of domestic violence” that precludes granting a CCW license
Daniel Doubek v. Joshua Kaul, 2022 WI 31, 5/20/22, on certification from the court of appeals; case activity (including briefs)
A person convicted of a “misdemeanor crime of domestic violence” as defined under federal law, 18 U.S.C. § 921(a)(33)(A), is barred from possessing a gun under federal law and, therefore, from getting a license to carry a concealed weapon in Wisconsin, § 175.60(3)(b). A unanimous supreme court holds that a violation of § 947.01(1) is not a misdemeanor crime of domestic violence.
Driver’s prior IID order hadn’t expired, so his prohibited alcohol concentration was 0.02, not 0.08
State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)
When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.
COA: though you can’t intend a reckless homicide, you can intend reckless endangerment
State v. Antonio Darnell Mays, 2022 WI App 24; case activity (including briefs)
Mays was accused of forcing his way into an apartment with and firing a gun at at least one of its occupants. One occupant fired back; in the end, two people were dead. The state initially charged Mays with, among other things, a reckless homicide for each of the deaths. But when, at trial, the evidence suggested that one of the decedents had been shot not by Mays, but by the occupant returning fire at Mays, the state moved to amend the information as to that death to charge felony murder instead. Mays opposed the amendment, and ultimately the state instead convinced the court to instruct the jury on felony murder as a lesser-included offense of reckless homicide. The jury convicted Mays of this lesser-included (and other counts).
Police had probable cause to arrest for operating with a restricted controlled substance
Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.