On Point blog, page 1 of 1

COA rejects pro se challenges to OWI first conviction

Village of Greendale v. Stacey King, 2023AP503, 9/17/24, District I (1-judge decision, ineligible for publication); case activity

King appeals her OWI first judgment, arguing that the statute of limitations had expired, that the circuit court based its rulings on bias against her instead of on the relevant law, and that the field sobriety test should not have been presented to the jury. The COA rejects these arguments and affirms.

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SCOTUS cert petition asks whether blood test refusal is admissible in drunk-driving trial

Pennsylvania, like Wisconsin, has a statute permitting the prosecution at a drunk-driving trial to introduce evidence that a defendant refused a requested blood draw. Do such statutes comply with the Fourth Amendment where the defendant refused a warrantless blood draw and no constitutional exception applied? For an argument that they don’t, see the cert petition filed last month in Thomas Bell v. Pennsylvania.

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State v. Gary F. Lemberger, 2015AP1452-CR, petition for review granted 10/11/2016

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

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More on probable cause to arrest for OWI

State v. George R. Ferrell, Appeal No. 2012AP2602, 9/26/13, (1-judge; ineligible for publication); case activity

A state trooper does not need evidence such as odors, admissions or containers to have probable cause to arrest for OWI.  These facts will do the trick:

 ¶12 . . . [T]he State Patrol received several reports that Ferrell was driving erratically and dangerously.  Thiede observed that Ferrell was speeding and watched Ferrell swerve within his lane. 

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§ 904.01, Relevance – Refusal, OWI

State v. Kurt J. Doerr, 229 Wis.2d 616, 599 N.W.2d 897 (Ct. App. 1999)
For Doerr: John M. Carroll.

Issue/Holding: Doerr argues that evidence of his refusal to take a chemical test was irrelevant, because it occurred at the police station rather than the arrest scene. The argument is rejected: Though refusal evidence is relevant to show the defendant’s awareness that he or she was intoxicated,

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§ 904.01, Refusal, OWI – Deficient Breath Sample

State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999)
For Zivcic: John J. Carter

Holding: A “deficient sample” printout from an Intoxilyzer 5000 test is held admissible – not as a test result, but as Zivcic’s failure to provide adequate breath samples (which equals a refusal).

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