On Point blog, page 1 of 24
COA: Sufficient evidence to request blood draw independent from defendant’s compelled statements; defendant’s IAC claims were conclusory and undeveloped.
State v. Nicholas J. Nero, 2023AP543, District III, 6/10/25 (one-judge decision; ineligible for publication); case activity
The COA found that law enforcement had probable cause that Nicholas Nero was driving under the influence, independent from his compelled statement to his probation officer and un-Mirandized statement to a deputy sheriff, and therefore affirmed the circuit court’s order denying his motion to suppress the results of his blood draw. The COA also found that Nero’s claims for ineffective assistance of counsel at trial were conclusory and undeveloped.
COA reverses, holding deputy lacked probable cause to search truck under the automobile exception to the warrant requirement
State v. Jonah Michael Hoffman, 2024AP1221-CR, 4/24/25, District IV (1-judge decision, ineligible for publication); case activity
The sole issue on appeal is whether the deputy who arrested Hoffman had probable cause to search his truck for evidence of an open container. COA concludes that probable cause was lacking, and accordingly reverses and remands with directions that any evidence derived from the search be suppressed.
COA again finds that consent to blood draw was valid, distinguishing Blackman
State v. Justin Dennis Krizan, 2022AP1341-CR, 3/4/25, District III (1-judge decision, ineligible for publication), case activity
Applying its recent holding in State v. Gore, 2025 WI App 11, ___ Wis. 2d ___, ___ N.W.3d ___ (see our post on Gore here), the COA concludes that Krizan’s consent to a blood draw was voluntary because he was not misinformed about the consequences of refusing to consent.
COA affirms denial of suppression in OWI, concludes police had probable cause to arrest
City of Delafield v. Shawn M. Office, 2024AP227, 2/26/25 District II (one-judge decision; ineligible for publication); case activity
COA affirms Office’s OWI 1st conviction, concluding that his arrest was supported by probable cause because sufficient evidence existed to reasonably believe that Office been driving while under the influence of an intoxicant.
COA affirms denial of suppression motion, but reminds state of basic briefing rules
State v. Mitchell D. Butschle, 2023AP2120-CR, 5/8/24, District II (one-judge decision, ineligible for publication); case activity
On appeal from a conviction for operating with a detectable controlled substance, the court rejects Butschle’s claims that police lacked probable cause to arrest. The court affirms because “there were enough indicators of impairment to satisfy probable cause to arrest, including (1) “a strong odor of alcohol,” (2) “Butschle’s eyes were bloodshot and glassy,” (3) “the stop occurred just after 2:00 a.m., which is bar time,” and (4) “Butschle failed the HGN test and showed balance indicators on the other two [FSTs].” Op., ¶¶10-11.
COA holds there was probable cause for OWI given admission of drinking up to twelve beers, slurred speech, inability to stand, and .198 PBT (among other evidence)
State v. Nicholas Allen Paulson, 2022AP186, 2/21/24, District III (1-judge decision, ineligible for publication); case activity
Although Paulson tries to establish that police did not have probable cause to arrest him despite, among other evidence, a PBT reading of .198, COA affirms.
COA affirms search; disregards “breadcrumb” theory
State v. Ashley Rae Baker, 2022AP1587-CR, District II, 1-judge decision, ineligible for publication; case activity (including briefs)
The Fourth Amendment protects against guilt by association by requiring probable cause to arrest or search to be specifically linked to the individual defendant. See State v. Riddle, 192 Wis. 2d 470, 478, 531 N.W.2d 408 (Ct. App. 1995) (citing United States v. Di Re, 332 U.S. 581, 593 (1948). That probable cause exists to arrest one vehicle occupant does not mean probable cause exists to arrest another.
SCOW rejects novel CBD-inspired arguments to reaffirm that an odor of marijuana justifies a warrantless search
State v. Quaheem O. Moore, 2023 WI 50, 6/20/23, reversing an unpublished court of appeals decision; case activity (including briefs)
As many surrounding states continue to legalize marijuana–and with the explosion of CBD and other legal hemp-derived products throughout Wisconsin–some observers have questioned the continued viability of Fourth Amendment rules permitting intrusive law enforcement action when officers smell what they believe to be THC. However, because THC remains illegal under Wisconsin law, these arguments fail in light of well-settled Fourth Amendment principles.
COA knocks down straw man and affirms denial of defendant’s motion to suppress
State v. Linsey Nichole Howard, 2022AP1608-CR, District 2, 03/08/2023, (one-judge decision, ineligible for publication) case activity
Prior to pleading guilty to operating a vehicle with a restricted, controlled substance as a second offense, Howard filed a motion to suppress, claiming that the arresting officer lacked probable cause. The court of appeals affirms the denial of Howard’s motion based on the following circumstances: (1) she was driving at 12:53 a.m. without headlights on, (2) she was confused about where she was coming from and where she was going, (3) she appeared nervous, (4) she avoided eye contact, and (5) she failed the HGN field sobriety test (4) . (Opinion, ¶11).
Defense win! COA affirms suppression of breath and blood tests due to DA’s errors
State v. Craig R. Thatcher, 2020AP1734, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs).
A state trooper stopped Thatcher for a suspected OWI, the trooper read the Informing the Accused Form, and, according to Thatcher, provided additional, misleading information that influenced his decision to consent to a breath test in violation of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995). The court of appeals affirmed the circuit court’s decision to suppress the results of the breath test and also the results of the subsequent blood.