On Point blog, page 49 of 53
Reasonable Suspicion for PBT
County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply
Odor of intoxicants insufficient, alone, to support administering PBT.
¶20 When an officer is not aware of bad driving, then other factors suggesting impairment must be more substantial. For example,
Sex Offender Registration Requirement Where Homeless
State v. William Dinkins, Sr., 2010 WI App 163, review granted 3/16/11; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; Dinkins BiC; State Resp.; Reply
A prisoner subject to sex offender registration requirement, § 301.45, isn’t subject to criminal penalty for failing, on impending release, to notify authorities of his intended “residence” where he will be homeless.
Compelled Self-Incrimination – Sentencing after Revocation
State v. Ronnie L. Peebles, 2010 WI App 156 (recommended for publication); for Peebles: Suzanne L. Hagopian, SPD, Madison Appellate; BiC; Resp.; Reply
Use, at Peebles’ sentencing after revocation, of his incriminating statements made during counseling ordered as a condition of probation, violated the 5th amendment and requires resentencing. The court canvasses the leading cases – State v.
TPR – Right to Counsel – Violation, Structural Error
State v. Darrell K., 2010AP1910, District 1, 10/19/10
court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee
Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.
¶10 The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.
CCW – Constitutionality – Second Amendment
State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10
Clark County circuit court decision; for Schultz: William Poss, SPD Trial, Black River Falls
The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats.
Richard M. Fischer v. Ozaukee Co. Circ. Ct., 741 F. Supp. 2d 944 (E.D. Wis. 2010)
federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11
Habeas Review – Right to Present Defense – Expert Opinion, Based PBT
Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303 on PBTs,
Probable Cause – Traffic Violation: Driving in Center Lane; Reasonable Suspicion – OWI
State v. Jerome Hoehne, 2009AP2561-CR, District 4, 9/15/10
court of appeals decision (1-judge, not for publication); for Hoehen: Bill Ginsberg; BiC; Resp.; Reply
Probable Cause – Traffic Violation: Driving in Center Lane
Driving in the center lane of a 3-lane highway did not support probable cause to arrest for a traffic violation:
¶8 On appeal,
Manipulation of Adult Jurisdiction over Juvenile Offense; Bail Jumping – Jurisdiction to Impose Conditions; Sanctions – Appellate Violations
State v. Drew E. Bergwin, 2010 WI App 137; for Bergwin: Roberta A. Heckes; BiC; Resp.; Reply
Manipulation of Adult Jurisdiction over Juvenile Offense
When the State brings a criminal charge against an adult defendant for an offense committed as a juvenile, the State must affirmatively show that the delay in charging wasn’t intended to manipualte the system to avoid juvenile court jurisdiction,
Recorded Confessions; Sentence Credit – Predisposition Secure Detention
State v. Dionicia M., 2010 WI App 134; for Dionicia M.: Andrew Hinkel, SPD Madison Appellate
Recorded Confessions
The juvenile was in custody when she was directed to the locked back seat of a patrol car so that she could be transported back to school after being reported truant; and, because it was feasible under the circumstances to record her ensuing statement, failure to do so rendered it inadmissible.
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.