On Point blog, page 80 of 87
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,”
§ 940.03, Felony Murder — Causation — PTAC
Lavelle Chambers v. McCaughtry, 264 F.3d 732 (7th Cir 2001)
For Chambers: John T. Wasielewski
Issue/Holding: Chambers is liable for the killing of a police officer by Chambers’ codefendant, while the pair were trying to flee apprehension during commission of a felony (armed burglary).
§ 940.11(2), Hiding Corpse — Sufficiency of Evidence
State v. Scott Leason Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142
For Badker: Timothy A. Provis
Issue: Whether the evidence was sufficient to sustain conviction for “hiding” corpse, § 940.11(2).
Holding: By dumping the deceased’s body into a 6-foot-deep, water-lined ditch in a secluded wildlife refuge, Badker satisfied the element of “hiding” under § 940.11(2).
§ 940.203(2), Battery — Threat to Judge
State v. Murle E. Perkins, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, reversed on other grounds, State v. Perkins, 2001 WI 46, ¶2 n. 2
For Perkins: William E. Schmaal, SPD, Madison Appellate
Issue: Whether a conditional threat to shoot a judge, made by a drunk and very depressed individual just before being taken into Ch. 51 emergency detention,
§ 941.29, Felon in Possession of Firearm – “Handling” = Element of “Possesses”
State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363
For Black: Michael S. Holzman
Issue: Whether the defendant’s admission of “handling” a gun established the element of “possesses” a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.
Holding:
¶19 At the outset, we note the absence of any mens rea5 requirement in this statute.