On Point

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Claim preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew::

¶26. We conclude that claim preclusion is not applicable for two independent reasons. First, as is evident from the name of this doctrine,

State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

¶13. Barksdale next argues that, even if the circuit court properly allowed the warden to raise claim preclusion as a defense, the defense must fail because all of the elements for claim preclusion are not present. The burden of proving claim preclusion is upon the party asserting its applicability. Alexopoulos v. Dakouras,

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Issue preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew:

¶22. In the second action, the facts were different in that Miller already had a copy of the expert’s summary.

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Judicial estoppel didn’t prevent admissibility of evidence excluded as discovery sanction in prior, dismissed but then reissued action, where judge who dismissed prior action after imposing sanction contemplated that the excluded evidence would not be barred in a new proceeding, ¶¶31-33.

State v. Larry N. Winsand, 2004 WI App 86, PFR filed 4/12/04
For Winsand: Ralph A. Kalal

Issue: Whether results of an Intoximeter EC/IR breath test was inadmissible because approval of this testing instrument by the chief of the DOT chemical test section involved standards that should have been but were not promulgated as administrative rules under ch. 227.

Holding:

¶7.

State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn

Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.

Holding:

¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”

State v. Arthur C. List, 2004 WI App 230, PFR filed 12/22/04
For List: Joseph L. Polito

Issue: Whether an Illinois OWI charge resulting in court supervision is a “conviction” within the meaning of § 343.307(1)(d).

Holding:

¶5. List contends that under Wis. Stat. § 343.307(1)(d) only OWI offenses that result in formal conviction as defined by the laws of a foreign state count for the purpose of charging a Wisconsin OWI suspect.

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays

Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:

¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation,

State v. Ibrahim Begicevic, 2004 WI App 57
For Begicevic: Donna J. Kuchler

Issue: Whether reading the “Informing the Accused” form in English to a non-English speaking driver was an unreasonable way of conveying required implied consent warnings.

Holding:

¶21. Kennedy did not attempt to obtain an interpreter. When Kennedy read the Informing the Accused in English, Gasse did not translate the form verbatim nor did he make an effort to explain the rights in the form in German to Begicevic.

State v. Shawn A. Beasley, 2004 WI App 42, PFR filed 3/26/04
For Beasley: Robert Ruth

Issue: Whether charges and convictions for burglary while armed (§ 943.10(2)(a)) and burglary while committing battery (§ 943.10(2)(d)) are multiplicitous.

Holding:

¶5. We reject Beasley’s challenge for two reasons. First, the subsections of Wis. Stat. § 943.10(2) do not define penalty enhancers, they define distinct crimes.