On Point blog, page 4 of 11
Court of Appeals rejects constitutional challenges to detectable amount of controlled substances law
State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.
COA holds, over dissent, that juvenile court’s waiver into adult court binds all future courts
State v. Matthew C. Hinkle, 2018 WI App 67, petition for review granted 4/9/19; affirmed 11/12/19; case activity (including briefs)
Hinkle, a 16-year-old boy, was charged as a juvenile in two different counties for a car theft and police chase. In Milwaukee County, the juvenile court waived him into adult court. So, did the Fond du Lac court have to treat him as an adult too?
SCOW to address process for expulsion from treatment court
State v. Michael A. Keister, 2017AP1618-CR, state’s petition for review granted 9/4/2018; case activity (including briefs)
Issues (based on the state’s petition for review )
- Does a person have a fundamental liberty interest in participation in a treatment court funded by the state and county when he or she is charged with an offense involving violent conduct as defined in § 165.95(1)(a) (2015-16)?
- Does § 165.95 (2015-16), the statute creating DOJ’s grant funding for treatment courts, violate procedural due process because it does not procedures for treatment courts to follow in expelling a participant?
Identity theft doesn’t require some extra act of “representing” in addition to “use” of identifying documents
State v. Christopher A. Mason, 2018 WI App 57; case activity (including briefs)
Applying its newly minted decision in State v. Stewart, 2018 WI App 41, the court of appeals holds that the “representing” element of identity theft under § 943.201 can be proven with the same evidence that proves the defendant “used” the identifying information or documents.
The statutes authorize fines for 7th and greater OWI offenses
State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)
A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.
Tumblr qualifies as an “identified citizen informant,” and sec. 939.617(2) is not void for vagueness
State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)
Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.
The scoop on the recent decision to declare Wisconsin’s “Hit and Run” statute unconstitutional
On Point is pleased to present a guest post by Attorney Adam Welch of Tracy Wood and Associates. The law firm recently persuaded Dane County Circuit Court Judge William Hanrahan to declare Wis. Stat. § 346.67 facially unconstitutional and to grant their motion to dismiss a felony Hit and Run—Injury complaint. Judge Hanrahan issued an oral ruling. The transcript has not yet been prepared, so we can’t link to the decision. Adam, however, agreed to lay out the issues for On Point. Here’s Adam:
Iowa County Circuit Court declares part of drug treatment court statute unconstitutional
Click here to read the Iowa County Circuit Court’s July 7th decision declaring that §165.95(1)(a) and (3)(c), which bars persons charged with violent offenses from participating in drug treatment court, violates substantive due process as applied and procedural due process on its face. The court says its decision has the effect of a permanent statewide injunction against enforcement of the statute. The State agrees.
SCOW finds no problem with felony and misdemeanor penalty for same OAR offense
State v. Ernesto E. Lazo Villamil, 2017 WI 74, 7/6/17, affirming a published court of appeals decision; case activity (including briefs)
A few years ago the legislature set out to create a graduated penalty scheme for operating after revocation offenses, but it bungled the job and ended up creating misdemeanor and felony penalties for the offense of causing death while knowingly operating after revocation. The supreme court rebuffs Villamil’s claims that under the rule of lenity only the misdemeanor penalty can be imposed or, in the alternative, that creating two very different penalties for the same crime violates due process and equal protection. The court agrees with his request for resentencing, however, because the circuit court failed to consider the statutorily mandated sentencing factors.
SCOW: Expunction requires perfect conduct on probation, maybe?
State v. Lazaro Ozuna, 2017 WI 64, 6/22/17, affirming an unpublished court of appeals opinion; case activity (including briefs)
Lazaro Ozuna, a teenager, pled to two misdemeanors and got probation. The court also ordered that the convictions be expunged on successful completion of probation under Wis. Stat. § 973.015. Ozuna got through probation and was discharged, but he picked up an underage drinking ticket along the way–a violation of the no-drink condition of his probation but obviously not a terribly serious one. So, did he “successfully complete” his probation so as to be entitled to expunction?