On Point

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.

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness:

¶45 … As Humphrey [v.

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel had asked a State witness,

State v. Daniel Wyatt Henning, 2004 WI 89, reversing 2003 WI App 54, 261 Wis. 2d. 664, 660 N.W.2d 698
For Henning: Steven D. Phillips, SPD, Madison Appellate

Issue: “¶41. Thus, the critical question is this: When a jury, in a multicount trial, both convicts and acquits, and an appellate court then overturns the conviction or convictions, do the acquitted charges pose any direct bar to retrial of the reversed convictions?” (In this case,

State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz

Issue/Holding:

¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense “[t]he criminal record of a prosecution witness which is known to the district attorney.” A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered. 

State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch

Issue/Holding:

¶12 In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,