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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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Police had probable cause to administer PBT
City of Sheboygan v. Nathan J. Becker, 2014AP1991, District 2, 2/11/15 (1-judge decision; ineligible for publication); case activity (including briefs) After police stopped Becker because of erratic driving at 11:30 p.m. on July 4 they observed additional evidence of impairment—glassy eyes, slurred speech, odor of alcohol. Becker admitted he’d been drinking and turned in a mixed performance on the FSTs. Under the […]
Parent’s request to revisit TPR order wasn’t supported by new evidence
State v. Tamara B., 2014AP1714, District 1, 2/10/15 (1-judge decision; ineligible for publication); case activity
Tamara requested a new dispositional hearing in the case that terminated her parental rights to her daughter Tamijah, saying there was new evidence that affected the advisability of the termination order. The circuit court properly determined that the evidence she presented wasn’t new.
Sentencing court didn’t rely on inaccurate information
State v. Travis Deon Williams, 2014AP2064-CR, 2014AP2065-CR, 2014AP2066-CR, and 2014AP2067-CR, District 1, 2/10/15 (1-judge decision; ineligible for publication); case activity (including briefs)
The prosecutor presented inaccurate information at Williams’s sentencing, but Williams hasn’t proven the circuit court relied on the information.
Court of appeals reinstates charges against capitol protester
State v. William M. Gruber, 2014AP1069, 2/5/15, District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs
The court of appeals bills this as “a State Capitol protester case with a twist.” The “twist” is that Gruber was cited for disorderly conduct under one administrative rule whereas other protesters were cited for lacking a permit under another rule. So when the circuit court dismissed the charges in this case based on the reasoning used in the “no permit” cases, it erred.
Circuit court lacked subjected matter jurisdiction to hear OWI, first offense
City of Stevens Point v. Jared T. Lowery, 2014AP742, 2/5/15; District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs
It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.
Deja vu: McNeely-based challenge to blood draw falls to good-faith exception
State v . Randall L. Shepherd, 2014AP962, 2/5/15, District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs
A another day. Another challenge to a pre-McNeely warrantless blood draw bites the dust.
Request for driver’s ID was reasonable extension of stop
State v. Rachel L. Huck, 2014AP2190-CR, District 3, 2/3/15 (1-judge decision; ineligible for publication); case activity (including briefs)
Having stopped a vehicle on reasonable suspicion that the registered owner had a suspended license, the officer was entitled to continue the detention to ask the driver—who clearly wasn’t the registered owner—for his driver’s license.
Statute of limitations barred re-prosecution of OWI that was improperly charged as a first offense
State v. Benjamin J. Strohman, 2014AP1265-CR, District 3, 2/3/15 (1-judge decision; ineligible for prosecution); case activity (including briefs)
Rejecting the state’s arguments that the statute of limitation had been tolled, the court of appeals holds the state could not re-charge Strohman for an OWI offense that was improperly treated as a first offense because the time limit for charging the offense had expired.
Once again, a McNeely-based challenge to a blood draw falls to the good-faith exception
State v. Tyler M. Pasch, 2014AP1193-CR, District 3, 2/3/15 (1-judge decision; ineligible for publication); case activity (including briefs) Another day, another decision holding the good-faith exception to the exclusionary rule applies to blood drawn without a warrant or exigent circumstances because the blood draw happened before Missouri v. McNeely, 133 S. Ct. 1552 (2013), effectively overruled State […]
Defendant forfeited right to counsel of choice; failed to show deficient performance
State v. Annette Morales-Rodriguez, 2014AP1438-CR, District 1, 2/3/15 (not recommended for publication); click here for briefs
A defendant must assert that she was denied her constitutional right to the counsel of her choice before trial, not after. Also, an attorney clears the “deficient performance” prong of an ineffective assistance of counsel claim where he withdraws as counsel based on a possible conflict even if the client wants him as her lawyer and will waive the conflict.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.