On Point blog, page 8 of 24
“Dazed and confused” and smelling of alcohol = reasonable suspicion of OWI
State v. Denton Ricardo Ewers, 2016AP1671-CR, 8/22/2017, District 3 (not recommended for publication); case activity (including briefs)
An employee at Family Dollar called the police to report that man who appeared “dazed and confused” and whose breath smelled of intoxicants had come into the store before leaving in a gold Ford Focus and heading west. An officer looked for the Focus but could not find it. Two hours later, the employee called back to say the same man, still “dazed and confused,” had once again been in the store, and once again had departed to the west in his gold Ford Focus. This time, the officer located the car and stopped it. The driver, Ewers, seemed intoxicated, which he eventually proved to be.
SCOW issues defense win! Deputy misrepresented the consequences of refusing to submit to blood test
Jeremy Perri guests posts on State v. Adam M. Blackman, 2017 WI 77, 7/7/17, reversing a published court of appeals opinion, 2016 WI App 69, 371 Wis. 2d 635, 886 N.W.2d 94; case activity (including briefs)
SCOW suppresses blood test, holding that the statutory Informing the Accused misrepresented the consequences of a refusal, the consent was coerced, and the exclusionary rule is necessary to deter future violations.
Lack of field sobriety tests doesn’t set higher bar for probable cause
State v. Jarred S. Martens, 2016AP2384, District 4, 7/13/17 (one-judge decision; ineligible for publication) case activity (including briefs)
Martens argues police didn’t have probable cause to arrest him for OWI because he didn’t do field sobriety tests and the absence of those tests means the state has to point to other, especially significant evidence to support probable cause. The court of appeals says the law doesn’t support this proposition, and even if it did there was enough evidence to arrest Martens.
Warrant to take blood allows testing of blood
State v. Benjamin Schneller, 2016AP2474, 6/22/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Benjamin Schneller was arrested for OWI and refused to submit to a blood draw, so the police got a warrant and took the blood anyway. He argues on appeal that the warrant only authorized the police to draw his blood, and that a separate warrant was required for them to test it.
Factual findings defeat motorist’s claim he did not consent to BAC test
State v. Joseph K. Larson, 2016AP1002-CR, 3/21/17, District III, (one-judge decision; ineligible for publication); case activity (including briefs)
Joseph Larson contends on appeal that the circuit court erred when it concluded he consented to a breath alcohol test after his arrest for OWI.
Splintered SCOW fails to decide constitutionality of statute authorizing blood draws from unconscious persons
State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)
The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.
Moving driver 8 miles to conduct field sobriety tests didn’t transform stop into arrest
State v. Dane C. McKeel, 2016AP884-CR, District 4, 2/16/17 (one-judge decision; ineligible for publication); case activity (including briefs)
“Due to the extremely cold, windy, icy, and snowy conditions” police moved McKeel approximately 8 miles from where he was stopped to a local police department so that McKeel had the “best opportunity” to complete field sobriety tests. (¶¶4-5). Moving McKeel this far did not transform the stop into an arrest.
Retrograde extrapolation survives Daubert challenge—again
State v. Michael Chough, 2016AP406-CR, District 2, 1/25/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Chough’s challenge to the reliability of expert testimony regarding his blood alcohol content at the time he was driving fails under State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687.
SCOW: EMT’s blood draw in jail was “under direction of a physician” and constitutionally reasonable
State v. Patrick Kozel, 2017 WI 3, reversing an unpublished court of appeals decision, 2016AP656-CR, 1/12/16; case activity (including briefs)
Kozel, arrested for OWI-2nd and subjected to a blood draw by an Emergency Medical Technician (EMT) at a county jail, challenged the draw as violating §343.305(5)(b) (2011-12) and as unconstitutional, because it was not performed “by a physician in a hospital environment according to accepted medical practices.” ¶43, citing to Schmerber v. California, 384 U.S. 757, 771 (1966).
Citizen informant’s tip supports probable cause to arrest for possesion of heroin
State v. Jimmie C. Johnson, 2015AP1233-CR, 2015AP2260-CR, 1/11/17, District 1 (not recommended for publication); case activity (including briefs)
When J.T. stepped out of her car in the parking lot of the West Allis Chuck E. Cheese she spotted a purple “Crown Royal” bag outside the driver’s door of the Chevy Tahoe next to her. It contained 69 aluminum foil folds. She took a photo of the license plate, went into the Chuck E. Cheese where she watched man get into the Tahoe, drive off, turn around, return to the parking spot and search for something. He then when into the Pet World next door where a video camera captured him searching for something.