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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.
Tip from known informant provided reasonable suspicion for traffic stop
State v. Andrew K. Wenz, 2013AP2576-CR, District 1, 5/13/14 (1-judge; ineligible for publication); case activity
Police had reasonable suspicion to stop his car because the content of a tip from a known, reliable informant allowed police to ascertain whether they were stopping the correct vehicle.
Traffic stop was unreasonably extended because officer lacked reasonable suspicion to conduct FSTs
State v. Gumersinda M. Gonzalez, 2013AP2585-CR, District 4, 5/8/14 (1-judge; ineligible for publication); case activity
The officer lacked reasonable suspicion to extend the duration of a traffic stop by asking a driver to perform field sobriety tests, so evidence of THC possession obtained during the stop must be suppressed.
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity
The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.
Steering levers in place of a steering wheel doesn’t make a utility terrain vehicle into a motor vehicle
State v. Shawn N. Hill, 2013AP2549-CR, District 2, 5/7/14 (1-judge; ineligible for publication); case activity
A vehicle registered by the State as a “utility terrain vehicle” under § 23.33(1)(ng) is not a “motor vehicle” under § 340.01(35). Thus, a defendant alleged to have operated the vehicle while intoxicated should have been charged under § 23.33(4c), not § 346.63.
Police had probable cause to ask for PBT
Village of Grafton v. Carl J. Schlegel, 2013AP2521, District 2, 5/7/14 (1-judge; ineligible for publication); case activity
Police had probable cause to ask Schlegel to submit to a preliminary breath test under § 343.303 even though he wasn’t asked to perform field sobriety tests first, and the result of the PBT, along with the rest of the facts, gave police probable cause to arrest Schlegel for OWI.
Court of appeals grants discretionary reversal for a 1st-degree intentional homicide conviction
State v. Charles R. Kucharski, 2013AP557-CR, District 1, 5/6/14, petition for review granted 9/24/14, reversed, 2015 WI 64; case activity
This is a nice defense win, and the majority opinion makes sense. Kucharski shot and killed his parents and pled not guilty by reason of mental disease or defect. The only issue at his court trial was whether he lacked the capacity to appreciate the wrongfulness of his conduct and comply with the law. The uncontested expert opinions answered “yes.” So the majority granted a new trial. The dissent took issue with the majority’s application of § 752.35, the discretionary reversal standard.
SCOTUS: Surrendering collateral to fraudulently obtained loan is not a return of property entitling defendant to offset of restitution under MVRA
Robers v. United States, USSC No. 12-9012, 5/5/14, affirming United States v. Robers, 698 F.3d 937 (7th Cir. 2012); Scotusblog page (includes links to briefs and case commentary); On Point’s previous coverage.
Where a defendant is ordered to pay restitution under the Mandatory Victim Restitution Act (MVRA), the amount of restitution may be reduced by the value of “any part of the property that is returned” to the victim. The Supreme Court holds that a a defendant convicted of fraudulently obtaining a loan does not return part of the property to the defrauded lender when the lender takes title to the collateral securing the loan. Therefore, restitution is not reduced by the fair market value of the collateral at the time the lender took title.
Federal racketeering conviction counts as prior drug offense under § 961.41(3g)(c)
State v. Rogelio Guarnero, 2014 WI App 56, petition for review granted 11/14/14, affirmed, 2015 WI 72; case activity: 2013AP1753-CR; 2013AP1754-CR
Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the predicate acts of racketeering involved, among other things, controlled substance offenses.
Defendant was in custody while being questioned, so statements taken without Miranda warnings must be suppressed
State v. Brandon D Andre Burnside, 2013AP1293-CR, District 1, 4/29/14 (not recommended for publication); case activity
Under the totality of the circumstances, a reasonable person in Burnside’s position would not have believed that he could stop police questioning and leave. Therefore, the statements he made to the police before they administered Miranda warnings must be suppressed.
Trial court didn’t err in excluding evidence of lab mistakes from years before defendant’s blood sample was tested
Fond du Lac County v. Douglas L. Bethke, 2013AP2297, District 2, 4/30/14 (1-judge; ineligible for publication); case activity
The circuit court did not erroneously exercise its discretion when it excluded evidence of particular crime lab errors that happened years before Bethke’s blood sample was analyzed.
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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.