On Point blog, page 79 of 87
Double Jeopardy – Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit
Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)
OWI – Informed Consent, Hearing Impaired Driver
State v. Michael S. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, affirming State v. Piddington, 2000 WI App 44, 233 Wis.2d 257, 607 N.W.2d 303
For Piddington: Michelle Ann Tjader
Issue: Whether BAC results were suppressible because the profoundly deaf defendant could not have heard the implied-consent law recitation of rights.
Holding:
¶1 … We hold that § 343.305(4) requires the arresting officer under the circumstances facing him or her at the time of the arrest,
Due Process / Right to Unanimous Verdict – Jury Agreement on Underlying Acts
State v. William G. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455
For Johnson: Martha K. Askins, SPD, Madison Appellate
Issue: Whether § 948.025 (repeated sexual assault of a child) violates the rights to due process and unanimous verdict by not requiring unanimity that each predicate act occurred.
Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process.
OAR/OAS – Rescission of HTO Status
State v. Jeremy J. Hanson, 2001 WI 70, 628 N.W.2d 759
For Hanson: James B. Connell
Issue: Whether DOT rescission of a defendant’s HTO status under § 351.09 “relates back” to the date of the charged offense so as to nullify that HTO classification and render him or her ineligible for enhanced sentencing.
Holding:
¶32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to ‘rescind’ and ‘rescission,’ we conclude that the effect of the Department’s recalculation of Hanson’s HTO status was an annulment and abrogation of that status from the outset of its existence.
OWI – Implied Consent: Warrantless Blood-Sample Analysis
State v. Paul J. VanLaarhoven, 2001 WI App 275
For VanLaarhoven: Michele Anne Tjader
Issue: Whether a blood sample, properly obtained under the Implied Consent law, may be analyzed without a warrant.
Holding: The Implied Consent law requires that all who apply for a driver’s license consent not only to provide a sample, but also a chemical analysis of the sample, ¶¶7-8. More broadly: “the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant.”
OWI – Implied Consent – Blood Draw after Rejecting Request for Breath test
State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg
Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.
Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993),
OWI – Implied Consent Law – Warnings re: Consequences for Refusal
State v. William K. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302
For Nord: Timothy J. O’Brien
Issue: Whether the implied consent statute, § 343.305(4) violates due process by providing misleading information regarding the consequences for taking or refusing the test.
Holding: The warning that the motorist “will be subject to other penalties” beyond revocation doesn’t overstate the consequences for refusal, because refusal can result in substance assessment,
OWI – Graduated Penalty Structure
State v. Henry T. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12
For Skibinski: Karma S. Rodgers
Issue: Whether a trial court can, after findings of guilt on second and third offense OWI, apply the increased penalties of OWI-3rd to both offenses at sentencing.
Holding: For several reasons, the sentence for OWI-2nd was limited to the applicable penalty for that discrete offense, even though the defendant was simultaneously being sentenced for OWI-3rd: a prior conviction is an element of OWI,
OWI – Unauthorized Sentence – Probation without Mandatory Minimum Confinement for OWI 6th – Resentencing as remedy
State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker
Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).
Holding:
¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period.
§ 940.02, First-degree reckless homicide — Subjective Awareness of Risk — sufficiency of evidence
State v. Jefrey S. Kimbrough, 2001 WI App 138, PFR filed 6/25/01
For Kimbrough: Glenn C. Cushing, SPD, Madison Appellate
Issue: Whether the evidence satisfied the reckless-conduct element, in particular that the defendant was subjectively aware of the risks in shaking a baby who died as a result.
Holding: The jury was entitled to draw a finding of guilt on this element from competing inferences: Though defendant’s intelligence was “limited,”