On Point: 9. Crimes

State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, 2001 WI App 130
For Polashek: Nila J. Robinson

Issue: Whether § 48.981(7) is a strict liability offense.

Holding: Where the statute makes no reference to mental state — and none is made here — it is often deemed strict liability. Factors such as seriousness and nature of the offense and legislative history may lead the court to impose a scienter requirement.

State v. Thomas P. Sterzinger, 2002 WI App 171
For Sterzinger: Steven P. Weiss, SPD, Madison Appellate

Issue1: Whether fleeing, § 346.04(3) requires proof that the defendant knowingly “interfere(d) with or endanger(ed)” another.

Holding1: Scienter is required, but is limited to a single element — knowingly flee or attempt to elude — and doesn’t extend to “interfere with or endanger.” ¶¶7-11.

Issue2: Whether fleeing,

Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02
For Walitalo: Ralph A. Kalal

Issue/Holding:

¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation. 

State v. Donald Marshall, 2002 WI App 73, PFR filed 2/28/02
For Marshall: Richard L. Zaffiro

Issue: Whether, after the OWI arrestee refused consent for a blood draw, the police could then obtain “consent” for the draw by threatening to use physical force.

Holding: Marshall’s argument that § 343.305(9)(a), by providing the exclusive police option for refusal, bans such a threat has been rejected by State v.

State v. Michael J. Carlson, 2002 WI App 44, PFR filed 1/17/02
For Carlson: Christopher A. Mutschler

Issue: Whether Carlson was entitled to have his refusal charge dismissed with prejudice because his driver’s license was improperly revoked for nineteen days before he was granted a hearing.

Holding: Due process protections — with respect to a hearing before loss of particular interests — are afforded under Mathews v.

State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt

Issue/Holding:

¶12      Baratka claims that he was not properly informed of his choices and was therefore unable to understand his rights regarding chemical testing.  In order for Baratka to prove he was not adequately informed, he must show:

1.      Has the law enforcement officer not met,

State v. Roland Smart, 2002 WI App 240
For Smart: Donald T. Lang, SPD, Madison Appellate

Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.

Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as “(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions.”

State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee

Issue: Whether  prosecution for child enticement initiated over the Internet violates the first amendment.

Holding: The first amendment doesn’t extend to speech that is incidental to or part of the criminal course of conduct.

¶43. The child enticement statute regulates conduct, not speech. The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places,

State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee

Issue/Holding:

¶37. The crime of attempt is complete when the intent to commit the underlying crime is coupled with sufficient acts to demonstrate the improbability of free will desistance; the actual intervention of an extraneous factor is not a “third element” of the crime of attempt, although it is often part of the proof. 

State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee

Issue: Whether attempted child enticement is a prosecutable offense, where the “child victim” was in fact a government agent posing as a child as part of a government sting operation.

Holding: That the “victim” was fictitious is the extraneous factor intervening to make the crime attempted rather than completed enticement.