On Point

State v. Misty Dawn Donough, 2017AP2000-CR, 7/10/18, District 1 (1-judge opinion; ineligible for publication), case activity (including briefs)

Deputy Moldenhauer saw Donough’s car disabled on an interstate and stopped to help. Moldenhauer repeatedly interacted with Donough, told her to get into the car, put it in neutral, and steer as the car was pushed on to a side street. Then she approached Donough for her license and insurance and saw her glassy eyes and detected the odor of alcohol.

State v. Zachary S. Friedlander, 2017AP1337, petition granted 7/10/2018; review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

When, as here, an offender is mistakenly released from prison or jail, is the offender “in custody” under § 973.155(1) and Magnuson such that sentence credit should be granted for this time spent at liberty?

State v. Christopher John Kerr, 2018 WI 87, 7/6/18, reversing a circuit court order on bypass of the court of appeals; case activity (including briefs)

Wisconsin has recognized 2 grounds for applying the exclusionary rule to suppress evidence–to deter police misconduct and to ensure judicial integrity.  State v. Hess, 2010 WI 82, ¶¶20, 33, 327 Wis. 2d 524, 785 N.W.2d 568; State v. Eason, 2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625. The majority opinion in this case clarifies that a judge’s failure to follow the law when issuing a warrant cannot serve as an independent basis for the exclusionary rule. 

Petitioner v. Robert D. Evans, 2018 WI App 53; case activity (including briefs)

Evans, the respondent in a domestic abuse injunction proceeding, filed a substitution request on the day of the injunction hearing. To find a substitute judge in cases where substitution is requested so close to the hearing, the clerk uses an “email volunteer system”: An email is sent out to all the other judges to see if anyone is available to take over the case, and the first judge who is gets the case. (¶¶2-4). The court of appeals finds nothing prohibiting this method of assigning a substitute judge.

Monroe County DHS v. A.D., 2018AP825, District 4, 7/5/18 (one-judge decision; ineligible for publication); case activity

A.D. argues the circuit court shouldn’t have granted summary judgment as to the grounds of the petition to terminate her parental rights, which alleged continuing denial of periods of physical placement or visitation under § 48.415(4). She also challenges the constitutionality of § 48.415(4), both on its face and as applied to her. The court of appeals rejects both arguments.

In re the Finding of Contempt in: State v. Shafia M. Jones, 2107AP2359, District 2, 5/9/18 (UNCITABLE SUMMARY DISPOSITION); case activity (including appellant’s brief)

This is a summary order, the holding of which may be of interest to trial lawyers. Because it is a summary order, it may NOT be cited “in any court of this state as precedent or authority,” § 809.23(3)(a). But the reasoning the court of appeals gives for its holding cites to and relies on published decisions. So if a circuit judge orders your client to sign his or her bond and threatens your client with contempt for refusing to do so, you should fight back using the same authority cited by the court of appeals in this summary order.

State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.

State v. Paul E. Ayala, 2017AP1510, 7/3/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Ayala was charged with OWI. A blood test showed a high level of Ambien in his system. He sought to defend on the ground of involuntary intoxication by presenting a pharmacologist’s testimony that he had a stomach condition that caused the drug to build up in his system. 

State v. Gerald P. Mitchell, 2018 WI 84, 7/3/18, on certification from the court of appeals; 2015AP304-CR, SCOTUS cert. granted, 1/11/19, vacated and remanded, 6/29/19; case activity (including briefs)

This is the supreme court’s third attempt to decide whether provisions of Wisconsin’s implied consent law comport with the Fourth Amendment. If you’ve been following along, you might have predicted the result: no majority opinion, no binding holding, and, as the lead opinion laments, a state of confusion going forward. Briefly: the lead, 3-justice opinion says “we overrule State v. Padley,” a court of appeals decision addressing a related (though not identical) issue, but it in fact does no such thing: it seems, in fact, to echo much of the discussion in Padley, and anyway, it’s a three-justice minority, and can’t overrule anything. A two-justice concurrence says the legislature can’t legislate away a motorist’s right to refuse consent to a search, but would hold that a blood draw of an unconscious OWI suspect doesn’t require a warrant anyway, despite a pretty clear statement to the contrary from SCOTUS. And a two-justice dissent also says the implied consent law doesn’t equal constitutional consent. So, just as in State v. Hager from this term, you have a result that favors the state, even though a majority of justices disagree with the state’s constitutional argument.

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.