On Point

State v. John D. Myer, 2016AP490-CR, District 4, 12/22/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Assuming a police officer’s contact with Myer constituted a seizure, it was justified under the community caretaker doctrine.

State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)

Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.

State v. Judith Ann Detert-Moriarty, 2017 WI App 2; case activity (including briefs)

The Wisconsin Equal Access to Justice Act, § 814.245, doesn’t apply to a person who prevailed in a forfeiture action brought in the name of the State of Wisconsin because the clear statutory language covers only actions brought by “a state agency.”

Jefferson County DHS v. C.C., 2016AP1983, District 4, 12/21/16 (one-judge decision; ineligible for publication); case activity

The circuit court properly granted summary judgment on the petition terminating C.C.’s parental rights despite C.C.’s claims that the circuit court violated the mandatory notice provision under § 802.08(2) and that a genuine issue of material fact exists on the issue of grounds for termination.

State ex rel. Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)

Martinez claimed the lawyer who represented him at his ES revocation hearing should have objected to certain hearsay evidence and to the ALJ’s failure to find good cause for the lack of appearance of certain witnesses. The court of appeals rejects the claim because even if counsel was deficient, Martinez wasn’t prejudiced.

Review of a published court of appeals opinion; case activity (including briefs); petition for review

Issues (from the petition):

I. Whether the circuit court properly suppressed Mr. Blackman’s warrantless blood test because he was unconstitutionally coerced into taking the test when he was read the informing the accused form which incorrectly told him that he faced a revocation and other penalties if he refused chemical testing, when he was actually only facing a possible arrest?

II. Whether the circuit court below properly suppressed Mr. Blackman’s blood test where Mr. Blackman was unconstitutionally coerced into taking the blood test, under the totality of the circumstances, when he acquiesced to the unlawful assertion by the officer that they take blood samples in cases like his—in addition to being told that he faced a revocation and other penalties if he refused?

III. Whether section 343.305(3)(ar)2 is unconstitutional on its face and as applied because it coerces consent to otherwise unconstitutional searches without due process of law?

Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review

Issues (composed by On Point):

1.  Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?

2.  Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”

State v. Rachel M. Helmbrecht, 2017 WI App 5; case activity (including briefs)

A circuit court’s decision on whether to order expungement under § 973.015 involves the exercise of discretion, and therefore the general rules governing the proper exercise of discretion apply to the expungement decision.

State v. Marie A. Martin, 2016AP913-CR, District 1, 12/20/16 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer’s contact with the driver of a car idling in a parking lot at 2:00 a.m. was lawful because the objective facts justified a reasonable suspicion of criminal activity.

State v. Gregory J. McMillan, 2016AP127-CR, 12/16/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

12:30 a.m., Saturday, Dodge Charger, driving away from tavern-rich area of McFarland. No bad driving, but a “relatively sudden” right turn with a squad two car lengths behind. The turn is onto a dead-end street with only “large industrial-type buildings.” Officer drives around a back way and sees McMillan standing at the back of his car talking on his phone. From where he’s standing, McMillan could have snuck into the shadows had he seen the squad following him, instead of coming around a back way. Officer stops McMillan. Reasonable suspicion?