On Point blog, page 1 of 12
Using umbrella for a snow shovel arouses suspicion of intoxication; COA affirms conviction for operating with prohibited alcohol concentration and refusing PBT.
City of Monona v. Erick J. Erickson, 2024AP312, District IV, 5/30/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed Erick J. Erickson’s conviction following a bench trial for operating with a prohibited alcohol concentration and revocation of his operating privileges because he unreasonably refused to submit to a preliminary breath test (PBT). COA found that the circuit court correctly denied Erickson’s motion to suppress because police had probable cause to request the PBT and probable cause to arrest Erickson.
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: Driver does not have right under implied consent statute to refuse blood test when driver proposes to take breath or urine test.
City of Mequon v. Schumacher, 2023AP2411, 7/3/24, District II (one-judge decision; ineligible for publication); case activity
COA determines person suspected of driving under the influence does not have right under implied consent statute, Wis. Stat. § 343.305, to refuse blood test if the person offers to take a breath or urine test instead.
Police properly requested PBT; had probable cause to arrest intoxicated motorist
State v. Joseph S. Schenian, 2023AP2017-CR, 6/5/24, District II (1-judge decision, ineligible for publication); case activity
Despite Schenian’s best efforts to do away with a damaging PBT result, COA rejects his arguments and affirms.
COA rejects novel discovery claim and other challenges to child pornography conviction
State v. Jacob Richard Beyer, 2022AP2051, 1/11/24, District 4 (not recommended for publication); case activity (including briefs)
Although Beyer labors mightily at conjuring up legal arguments for reversal, COA is uniformly unpersuaded and unimpressed by his arguments and affirms.
COA finds probable cause for arrest; reverses suppression in OWI case
State v. Laquanda N. Strawder, 2022AP2112, 1/17/24, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court held that police lacked probable cause to arrest Strawder for OWI and suppressed the resulting evidence, including her breath test results. The state appealed, claiming the circuit court’s factual findings and analysis were so lacking the court of appeals should review the factual record ab initio. The court of appeals thinks the trial court did the proper analysis and made sufficient factual findings, but disagrees with its legal conclusion. In the facts as found by the trial court, the court of appeals sees probable cause to arrest, and thus reverses and remands for the prosecution to continue.
COA reverses order suppressing evidence obtained after traffic stop
State v. Lauren Dannielle Peterson, 2023AP890-CR, 12/29/23, District 4 (one-judge case, ineligible for publication); case activity
Peterson’s circuit court win is short-lived after the court of appeals concludes that reasonable suspicion existed to initiate an OWI investigation and probable cause existed to ask Peterson to perform a preliminary breath test (PBT).
Defense win: taking man from home in squad, leaving him cuffed inside for 30 minutes was unlawful arrest
State v. Nicholas Anthony Stilwell, 2022AP1839, 7/20/23, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
This case has facts remarkably like those of State v. Cundy, a recommended-for-publication case the court of appeals decided the week before. Police received a report of a hit-and-run of a parked vehicle, and learned the truck that did the hitting and running was registered to Stilwell. They went to Stilwell’s apartment and found the truck parked nearby. They buzzed Stilwell and he answered the door. They eventually entered the apartment and determined, including by the use of a PBT, that Stilwell was intoxicated, though he denied having driven his truck. They cuffed him, told him he was being “detained,” and took him to the crash scene, where after about 30 minutes they secured other evidence that Stilwell had driven his truck; they thus arrested him.
Defense win – tenant had standing to challenge unlawful search of basement
State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued after the objects identified in the search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d 739 (1978). This unlawful search turned up contraband that led police to get a new warrant to search Eder’s apartment; Eder seeks to suppress the evidence found in this second search on the ground that it was the fruit of the basement search.
COA holds leaving tavern at 2:00 a.m. + open drink in car + odor of intoxicants = probable cause to arrest
State v. Randaro V. Jones, 2020AP1046, District 1 (one-judge decision; ineligible for publication) 9/7/22, case activity (including briefs)
This is not an OWI case; rather, it’s an appeal from a conviction of recklessly endangering safety by using a firearm while intoxicated. But the blood test that led to this charge came as a result of an arrest for OWI-first, so the issue is whether there was probable cause for that arrest.