On Point blog, page 1 of 1
COA, bound by precedent, rejects constitutional challenge involving mandatory minimum CSA charges
State v. Keith Kenyon, 2022AP2228-CR, 9/16/25, District I (recommended for publication); case activity
Although COA is surprisingly candid in acknowledging some of the injustices present in this appeal, the Court ultimately concludes that Kenyon’s constitutional challenge is foreclosed by existing precedent.
COA holds that difference between “L meth” and “D meth” does not create a defense to RCS prosecution
State v. Walter L. Johnson, 2024AP79-CR, 2/13/25, District IV (recommended for publication); case activity
In a case resolving a hot issue for OWI litigators, COA rejects challenges to an RCS prosecution based on the chemical difference between “L meth”–found in certain nasal decongestant sprays–and “D meth,” which is found in illicit street drugs.
COA rejects constitutional challenge to legislature’s inclusion of non-impairing metabolite as restricted controlled substance
State v. Dustin J. VanderGalien, 2023AP890-CR, 12/29/23, District 4 (recommended for publication); case activity
VanderGalien pled no contest to three counts stemming from a fatal motor vehicle crash after a non-impairing cocaine metabolite (benzoylecgonine or “BE”) was detected in his blood hours after the incident. The court of appeals rejects his facial challenge to the statute, Wis. Stat. § 340.01(50m)(c), which includes BE as a restricted controlled substance under the motor vehicle code. The court of appeals explains that “the inclusion of cocaine or any of its metabolites in the definition of a restricted controlled substance for purposes of prosecution under the Wisconsin motor vehicle code bears a rational relationship to the purpose or objective of the statutory scheme,” which is to combat drugged driving. Op., ¶30.
Constitutional challenge to penalty enhancer for using a computer to facilitate a child sex crime fails
State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)
The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.
Child sexual assault statute survives as-applied vagueness, equal protection challenges
State v. Colton M., 2015 WI App 94; case activity
Colton challenges his delinquency adjudication for repeated acts of sexual contact with a child under the age of 16 under § 948.025(1)(e), arguing that applying the statute to him violates due process because it provides insufficient standards for distinguishing him from D., the victim, as both were 15 years old and both engaged in sexual activity. Colton also argues that prosecuting him rather than D. violates equal protection. The court concludes that, under the facts of this case, the statute is sufficiently definite to satisfy due process and there was a rational basis for prosecuting Colton instead of D.
Counting out-of-state “zero tolerance” OWI violations as prior offenses doesn’t violate Equal Protection Clause
State v. Daniel M. Hirsch, 2014 WI App 39; case activity
The equal protection clause isn’t violated by § 343.307(1)(d)‘s differing treatment of Wisconsin and out-of-state” zero tolerance” OWI offenses (which penalize drivers under the legal drinking age who drive with any alcohol concentration).
Hirsch had two prior driver’s license suspensions for violation Illinois’s zero tolerance law. Under § 343.307(1)(d),
SCOW: Six-person jury for involuntary mental commitment survives equal protection challenge
Milwaukee County v. Mary F.-R., 2012AP958, affirming an unpublished court of appeals opinion; case activity
Majority opinion by Justice Crooks; concurrence by Chief Justice Abrahamson; additional concurrence by Justice Ziegler (joined by Justices Roggensack and Gableman)
The issues in this case spring from State v. Post, 197 Wis. 2d 279, 318-319, 541 N.W.2d 115 (1995)(“persons committed under Chapters 51 and 980 are similarly situated for purposes of equal protection comparison) and State v.
Equal Protection – Rational Basis Test – Punishment Classification Scheme
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.
Holding:
¶13 The State, on the other hand, argues that we should employ the lower level of scrutiny,
Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process
State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.