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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.
OWI – Implied Consent – Threat to Revoke Driver’s License Arrest, Not Coercive
Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02
For Walitalo: Ralph A. Kalal
Issue/Holding:
¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation.
OWI – Implied Consent Law – Threat to Use Force
State v. Donald Marshall, 2002 WI App 73, PFR filed 2/28/02
For Marshall: Richard L. Zaffiro
Issue: Whether, after the OWI arrestee refused consent for a blood draw, the police could then obtain “consent” for the draw by threatening to use physical force.
Holding: Marshall’s argument that § 343.305(9)(a), by providing the exclusive police option for refusal, bans such a threat has been rejected by State v.
OWI – Due Process – pre-Refusal Hearing Revocation
State v. Michael J. Carlson, 2002 WI App 44, PFR filed 1/17/02
For Carlson: Christopher A. Mutschler
Issue: Whether Carlson was entitled to have his refusal charge dismissed with prejudice because his driver’s license was improperly revoked for nineteen days before he was granted a hearing.
Holding: Due process protections — with respect to a hearing before loss of particular interests — are afforded under Mathews v.
OWI – Implied Consent Law – Misleading Advice – Right of Refusal, § 343.305(9)
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt
Issue/Holding:
¶12 Baratka claims that he was not properly informed of his choices and was therefore unable to understand his rights regarding chemical testing. In order for Baratka to prove he was not adequately informed, he must show:
1. Has the law enforcement officer not met,
OWI – Sentencing – Differential, County-Based Guidelines
State v. Roland Smart, 2002 WI App 240
For Smart: Donald T. Lang, SPD, Madison Appellate
Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as “(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions.”
Double Jeopardy – Multiplicity: Car-Jacking (§ 943.23(1g)) and Operating without Owners Consent (§ 943.23(3))
State v. Prentiss M. McKinnie, 2002 WI App 82, PFR filed 3/14/02
For McKinnie: Bryan J. Borman, SPD, Waukesha Trial
Issue: Whether separate charges, of carjacking and operating the same motor vehicle without owner’s consent are permissible where, after allegedly taking the car, the defendant continued to drive it the next day.
Holding: Though these offenses are the same in law, under § 939.66(2r), the facts as alleged are distinct and therefore support separate charges in this particular instance:
¶11.
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Double Jeopardy – Multiplicity: Waiver – Guilty Plea Rule
State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School
Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.
The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions?” ¶2.
Enhanced Penalties — Proof — Admission: More Required
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding:
¶5 An admission from a defendant stating, “I am a repeater,” without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. §973.12(1). As the circuit court indicated in its colloquy, “repeater” and “habitual offender” are legal, not factual terms, and a defendant may not be aware of what he or she is admitting.
Double Jeopardy – Remedy: Multiplicity
State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School
Issue/Holding: Remedy for a multiplicity violation is left to trial court, applying test in State v. Robinson, 2002 WI 9, ¶57, 249 Wis. 2d 553, 638 N.W.2d 564.
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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.