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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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OWI – § 346.65(2), Second or Subsequent Offense: Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension
State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement, § 346.65(2). Court of appeals holding […]
Warrantless Blood Draw – Driving under Influence of Drugs
State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10 court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 […]
USA v. Donald W. Simms, II, 7th Cir No. 10-1055, 11/23/10
seventh circuit decision Milwaukee’s ordinance-created “winter rules” with respect to snow removal effectively establish an “easement” such that police could enter a yard and rifle through a homeowner’s garbage cart. Although the cart is within what is normally considered “curtilage,” and thus protected by privacy concerns, the intrusion of the curtilage here is “lawful,” given this local law allowing garbage […]
Guardianship – Respondent’s Right to Personal Presence
Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed. ¶5 A determination that a person “is […]
DNA Surcharge – Timeliness of Challenge
State v. Raymond Allen Nickel, 2010 WI App 161 (recommended for publication); pro se; State Resp.; Robert R. Henak, WACDL, Amicus Brief Nickel’s challenge to his DNA surcharge was untimely, because made outside the direct appeal time limits: ¶5 When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification. Pursuant to WIS. STAT. § 973.19, a […]
§ 944.20(1)(a), Lewd & Lascivious
State v. Andrew J. Bolin, 2009AP2425-CR, District 4, 11/24/10 court of appeals decision (1-judge, not for publication) The crime of lewd and lascivious behavior applies to non-consensual as well as consensual acts with another. ¶9 The language at issue is unambiguous as applied to the facts in this case. The subsection prohibits “an indecent act of sexual gratification with […]
Notice of Mandatory Minimum
State v. Harry Thompson, 2009AP1505-CR, District 4, 11/24/10, reversed, 2012 WI 90 court of appeals decision (3-judge, not recommended for publication), reversed 2012 WI 90; for Thompson: J.P. La Chapelle; State BiC; Thompson Resp.; Reply; State Supp.; Thompson Supp. Failure of the charging document to provide Thompson with notice that he faced a mandatory minimum confinement (25 years […]
“In-Home Seizure” – “Constructive Entry”
City of Sheboygan v. Brian J. Cesar, 2010 WI App 170 (recommended for publication); for Cesar: Andrew Mishlove, Lauren Stuckert; Cesar BiC; City Resp.; Reply; AG Amicus Police, investigating a recent traffic accident, knocked on Cesar’s door and rang his doorbell “numerous” times for up to 10 minutes, and threatened to remain until he came […]
Juror Disqualification – In-Law of Presiding Judge
State v. Sharon A. Sellhausen, 2010 WI App 175, reversed, 2012 WI 5; for Sellhausen: Byron C. Lichstein; case activity ¶1 Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because Sellhausen’s […]
Reasonable Suspicion for PBT
County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10 court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply Odor of intoxicants insufficient, alone, to support administering PBT. ¶20 When an officer is not aware of bad driving, then other factors suggesting impairment must be more […]
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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.