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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 – Implied Consent Law – Alternative Chemical Test
State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03 For Keith: Christopher A. Mutschler Issue/Holding: ¶10 WISCONSIN STAT. § 343.305(5)(a) requires police to offer an alternative chemical test to persons who submit to a chemical test under § 343.305 and who request an alternative test. … ¶12 The record shows that after Keith’s arrest, while traveling […]
OWI – PBT – Probable Cause to Administer
State v. Guy W. Colstad, 2003 WI App 25 For Colstad: T. Christopher Kelly Issue/Holding: Authority to administer a preliminary breath test requires probable cause to believe a drunk driving law has been violated. ¶23. Probable cause existed here, given the driver’s (mild) odor of intoxicants; the “suspicious circumstance” of the collision (i.e., with a child […]
OWI – Refusal – Right to Counsel
State v. Richard L. Verkler, 2003 WI App 37 For Verkler: Christopher A. Mutschler Issue/Holding: ¶1. In State v. Reitter, 227 Wis. 2d 213, 217-18, 595 N.W. 2d 646 (1999), our supreme court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the […]
Double Jeopardy – Multiplicity: Theft by Fraud, § 943.20(1)(d), Same Victim Over Period of Time
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03 For Swinson: Pamela Pepper Issue/Holding: Separate theft by fraud charges, § 943.20(1)(d), involving a scheme to defraud the same victim over a period of time, were not multiplicitous. Though identical in law, they weren’t identical in fact, because each charge involved a distinct false representation, […]
Double Jeopardy – Remedy: Multiplicity – Felony Murder, § 940.05
State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03 For Krawczyk: John T. Wasielewski Issue: Whether vacating plea-bargain based conviction and (concurrent) sentence for multiplicitous charge was adequate remedy, as opposed to reinstating the not guilty pleas. Holding: ¶34. We see no reason to disturb the remedy the trial court granted for the […]
Enhancer – Pleading – Misstating Date of Prior Convictions by One Day
State v. Robert J. Stynes, 2003 WI 65, reversing unpublished opinion For Stynes: Patrick M. Donnelly, SPD, Madison Appellate Issue: Whether the complaint’s misstatement (by one day) of the date of prior convictions in support of a repeater allegation deprived Stynes of adequate notice, contrary to § 973.12(1) and due process. Holding: ¶2. We conclude that the complaint […]
Enhancer — § 939.62(2m), Persistent Repeater — Validity — Due Process
State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03 For Wield: Donald T. Lang, SPD, Madison Appellate Issue/Holding: The persistent repeater law, § 939.62(2m) is constitutional; State v. Radke, 2003 WI 7, 259 Wis. 2d 13, 657 N.W.2d 66, controls. ¶¶20-21.
Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process
State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146 For Radke: William E. Schmaal, SPD, Madison Appellate Issue/Holding: ¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on […]
Enhancers — Persistent Offender — §§ 939.62(2m)(a)1m, (b)2 and (c) — Comparable Prior, Since-Repealed Statute: Child Sexual Assault, § 940.225(1)(d) (1977-78)
State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03 For Wield: Donald T. Lang, SPD, Madison Appellate Issue/Holding: In determining whether a prior conviction under a since-repealed statute is a serious child sex offense comparable to § 948.02(1) so as to invoke the persistent repeater law, the “elements only” test of Blockburger v. United States, 284 U.S. […]
Due Process – Resentencing – Increase in Original Sentence After Appellate Relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90 For Church: James L. Fullin, SPD, Madison Appellate Issue: Whether an increase in sentence […]
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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.