On Point blog, page 77 of 87
OWI – Due Process – pre-Refusal Hearing Revocation
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.
OWI – Implied Consent Law – Misleading Advice – Right of Refusal, § 343.305(9)
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,
OWI – Sentencing – Differential, County-Based Guidelines
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.”
First Amendment – Child Enticement Initiated Over Internet
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,
§ 939.32, Attempt – In General
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.
Attempted Child Enticement, §§ 939.32, 948.07(1) — Internet Sting Operation
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.
Attempted Child Enticement, §§ 939.32, 948.07(1) — Adult Posing as Child Online
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online “victim” is thought by the defendant to be a child,
Attempted Second-degree Sexual Assault, §§ 939.32, 948.02(2) — Adult Posing as Child Online
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: The rationale of State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online “victim” is thought by the defendant to be a child,
§ 940.02 (1969), Second-Degree Intentional Murder — Sufficiency of Evidence (Battered Child)
State v. Arden C. Hirsch, 2002 WI App 8For Hirsch: Paul G. LaZotte, UW Law School, LAIP
Issue: Whether the evidence was sufficient to sustain conviction for second-degree murder, § 940.02 (1969).
Holding: Discrepancies between the parent’s version of what happened to the child and medical expert testimony as to what could not have, or what must have, happened to produce the injuries is crucial. ¶7. Persuasive medical evidence that the child died as result of sever injury,
§ 940.02, First Degree Reckless Homicide — Refusal to Instruct on, as Lesser Offense
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether the first-degree intentional homicide defendant was entitled to an instruction on the lesser offense of first-degree reckless homicide.
Holding: Barreau must show a reasonable basis for negating intent to kill. The victim was killed by multiple blows to the head with a baseball bat.