Full text available at: www.wisbar.org
| Case Name | Date | Docket Number | Issue and Summary |
|---|---|---|---|
| State v Schuh | Dec 27, 2000 | 00-2120-CR | Reasonable Suspicion (Illegal Stop) - D appeals his judgment of conviction for OWI second offense, arguing that the initial contact with the officer constituted an illegal stop because the officer lacked reasonable suspicion. D's freedom of movement was not restrained in any way by means of physical force or by a show of authority during the initial contact. D voluntarily responded to the officer's questions and was free to leave at any time during the initial contact. Since the initial contact did not constitute a stop, the conviction is affirmed. |
| State v Spencer | Dec 21, 2000 | 00-0975-CR | Probable
Cause - D
appeals from a judgment convicting him of operating a motor vehicle while under the
influence of a combination of an intoxicant and controlled substance. D first argues that
the police did not have probable cause to arrest him. D failed the HGN test, which yielded
all six clues of intoxication. He admitted he had been drinking, and his eyes were watery
and bloodshot. Both officers could smell the odor of intoxicants on D even though he was
smoking a cigarette. Finally, D was unable to avoid a pedestrian in the roadway during
daylight while traveling approximately twenty-five miles per hour. The court concludes
that a police officer could have reasonably believed that D was driving while intoxicated
and that his driving was impaired. Search & Seizure - D also argues that the police violated his Fourth Amendment right against unreasonable searches and seizures by drawing his blood without a warrant. Given all the circumstances, there was a clear indication that a blood draw would produce evidence of intoxication. The method used to take D's blood was a reasonable one and performed in a reasonable manner as required in Bohling and Thorstad. |
| State v Hughes | Dec 21, 2000 | 00-1665-CR | Personal waiver for jury trial - D appeals a judgment convicting him of OMVWI with a PAC. He claims the trial court erred in failing to obtain a personal waiver from him of his right to a jury trial. The Wisconsin Supreme Court requires strict compliance with the statute in order to waive the constitutional right to a jury trial. State v. Livingston, 159 Wis.2d 561, 569-70, 464 N.W.2d 839 (1991).The court concludes that a new trial will not violate the constitutional prohibition against double jeopardy. Accordingly, they reverse the conviction and remand the case for a new trial. |
| State v Volden | Dec 21, 2000 | 00-1026-CR | Warrantless Entry - D appeals a judgment of conviction for OMVWI. D claims that the circuit court erred by failing to suppress evidence obtained as a result of the investigating officer's warrantless entry into his residence, in violation of his Fourth Amendment rights. The court concludes that the officer's warrantless entry did not violate D's Fourth Amendment rights because (1)the officer had probable cause to arrest him for criminal OMVWI, and (2)exigent circumstances existed, specifically, the rapidly dissipating level of alcohol in D's blood, a key item of evidence in an OMVWI prosecution. Accordingly, they affirm the conviction. |
| State v Held | Dec 20, 2000 | 00-1345-CR | Implied Consent ("Reasonable Diligence") - D appeals from a judgment of conviction for OWI. D pled guilty to the charge following the trial court's denial of his motion to suppress evidence of a blood test obtained pursuant to the implied consent law. On appeal, D contends that the arresting officer did not exercise "reasonable diligence" to accommodate his request for the police department's alternate test under the implied consent law as required by State v. Renard, 123 Wis. 2d 458, 367 N.W.2d 237 (Ct. App. 1985). The court agrees and the case is reversed and remanded for further proceedings. |
| State v Holub | Dec 19, 2000 | 00-1867-CR | Field Sobriety Tests - D appeals his judgment of conviction for OWI. D argues that the circuit court erred by denying his motion to suppress all of the evidence because he was illegally arrested when the police transported him to the police station to perform field sobriety tests. Because D was transported to the police station to ensure accurate results of the field sobriety tests and for his own safety, the court concludes that the requirements of Terry and Quartana were met, and affirms the conviction. |
| State v Stigney | Dec 12, 2000 | 99-2826 | Blood Test Refusal - D appeals from a judgment convicting him of operating a motor vehicle with a PAC. The sole issue on appeal is whether the taking of his blood sample without a warrant violated the Fourth Amendment to the United States Constitution. Because the issues D raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, (Wis. Oct. 17, 2000) the conviction is affirmed. |
| State v Monsour | Dec 12, 2000 | 99-2412-CR | Blood Test Refusal - D appeals from a judgment convicting him of a second offense OMVWI. The sole issue on appeal is whether the taking of his blood sample without a warrant violated the Fourth Amendment to the United States Constitution. Because the issues D raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, (Wis. Oct. 17, 2000) the conviction is affirmed. |
| State v Kunze | Dec 12, 2000 | 00-2088-CR | Public Use - The court held that a privately owned road in a mobile home park is an area held out to the public for use of their motor vehicles. Therefore, even though all of D's driving occurred there, her conviction of OWI, second offense, is affirmed. |
| State v Findlay | Dec 7, 2000 | 00-1997 | Blood Test Refusal - D appeals an order revoking her motor vehicle operating privilege based on her refusal to submit to an implied consent blood alcohol test. She claims the circuit court erred in denying her motion to dismiss the refusal proceedings. Because the issues D raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, Wis.2d, 618 N.W.2d 240, review denied, 2000 WI 121 (Wis. Oct. 17, 2000), the order is affirmed. |
| State v Appleyard | Dec 5, 2000 | 00-1761-CR | Probable Cause - D appeals from fourth offense OMVWI, arguing that the circuit court erred by denying his motion to suppress the results of a blood test because the Eau Claire County Sheriff's Department lacked probable cause to arrest him. D was combative with paramedics, and the officer smelled an odor of alcohol emanating from D when he knocked off the oxygen mask. There was also evidence that D had been drinking since 11 a.m. and that he was driving the moped in an inappropriate way and had lost control. The facts support probable cause to believe D was driving while under the influence of an intoxicant. |
| State v Polczynski | Nov 30, 2000 | 00-1303-CR | Sentencing (amended statute) - State appeals from a judgment convicting D of OMVWI, sixth offense. The issue is whether the circuit court may place D on probation under the statutes that were in effect at the time of his offense. The court concludes that the statute at the time of the offense prohibited probation, and it is irrelevant that the statute was later amended. D offers no legal authority for the proposition that the court may disregard an unambiguous statute simply because it was amended later to produce a different result. |
| City of Monroe v Foulker | Nov 30, 2000 | 99-2753 | Blood Test Refusal - D appeals OMWVI conviction claiming the trial court erred in denying his motion to suppress the result of a blood test performed without a search warrant. As D concedes in his reply brief, the recent decision in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, 2000 WI 121 (Wis. Oct. 17, 2000), rejected the very argument he makes on this appeal. |
| State v. Farina | Nov 28, 2000 | 00-0813 | Blood Test Refusal - The State appeals from the trial court's order finding that D's refusal to submit to a test of his blood alcohol concentration was reasonable. The State contends that the trial court erred and "misapplied the law of refusal" when it found that the arresting officer did not comply with the intent of Wis. Stat. §343.305(4). This court reverses because the trial court erred in finding that Wis. Stat. §343.305(4) required the officers to read the "Informing the Accused" form "at the earliest point possible," the arresting officer did not misapply the statute and D refused within the meaning of the law. |
| State v. Dorschner | Nov 14, 2000 | 00-1160-CR | Double Jeopardy/ Due Process - The State charged D with bothOWI, pursuant to §346.63(1)(a), and operating a motor vehicle with a PAC, pursuant to §346.63(1)(b). D challenged the State's dual prosecution of both offenses on due process and double jeopardy grounds. Because both the supreme court in Bohacheff and this court again in Raddeman have declared the dual prosecution procedure set out in Wis. Stat. §346.63(1)(c) fair to all concerned, the court rejects D's due process challenge. The court holds the State's dual prosecution of D for both OWI and PAC does not violate his double jeopardy protection or his due process rights. |
| State v. Cundy | Nov 9, 2000 | 00-1274-CR | Stop w/in City Limits - D appeals his convictions for OMVWI and operating with a PAC. He claims that the circuit court erred in denying his motion to suppress evidence obtained in an encounter between himself and a Mayville police officer because the police officer stopped him outside the city of Mayville.The court concludes that the circuit court's finding that D was stopped within the city limits of Mayville was not clearly erroneous. In addition, they conclude that the police officer was in fresh pursuit of D when the stop occurred. Therefore the evidence obtained was properly admitted and judgment is affirmed. |
| State v. Gautschi | Nov 9, 2000 | 99-3065 | Implied Consent - D appeals an order revoking his motor vehicle operating privilege based on his refusal to submit to an implied consent blood alcohol test. He argues that the notice of intent to revoke his operating privilege failed to provide the information required by Wis. Stat. §343.305(9)(a)5, thereby depriving the trial court of personal jurisdiction to revoke his operating privilege. The court concludes that although the notice contained a technical error, it did not prejudice the D, and the judgment is affirmed. |
| County of Iowa v. Bidwell | Nov 9, 2000 | 99-1601 | Blood Test - D appeals a judgment convicting him OMVWI. He claims the trial court erred in denying his motions to suppress evidence of the results of a blood test that was administered following his arrest. Because the issues D raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, (Wis. Oct. 17, 2000) the conviction is affirmed. |
| State v. Saich | Nov 9, 2000 | 00-0691 | Blood Test - D appeals a judgment convicting him OMVWI. He claims the trial court erred in denying his motions to suppress evidence of the results of a blood test that was administered following his arrest. Because the issues D raises in this appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, review denied, (Wis. Oct. 17, 2000) the conviction is affirmed. |
| State v. Hall | Nov 8, 2000 | 00-1391-CR | Plea Colloquy - D appeals a conviction for 3rd offense OMVWI arguing that his plea to the OMVWI second offense was constitutionally defective and therefore not valid for purposes of sentence enhancement under §346.65(2)(b). The transcript indicates that while the colloquy is certainly not an exemplary one, the trial court generally set forth the elements of the charge, addressed D personally and determined that his plea was voluntary with an understanding of the nature of the charge, as required by Wis. Stat. §971.08. In addition, the trial court specifically referred to and questioned D about the plea questionnaire that he completed and signed, and thus his conviction is affirmed. |
| State v. Hanson | Nov 7, 2000 | 00-0862-CR | Search Incident - D appeals a judgment of conviction for possession of marijuana. D was the passenger in a truck where the driver was arrested for operating while under the influence of an intoxicant. A consent search of the truck revealed a bag of marijuana under the driver's seat. Thereafter, D was frisked and marijuana was found in his pocket. He contends that the search was unlawful in that it was not justified under Terry v. Ohio, 392 U.S. 1 (1968). He also asserts that the trial court erred by concluding that the search of his person was incident to a lawful arrest. This court agrees with both contentions, reverses the judgment of conviction and the order denying D's suppression motion and remands for a new trial. |
| County of Dane v. Pernot | Nov 2, 2000 | 00-1305 | Reasonable Suspicion - D appeals a judgment convicting him of OMVWI. He claims the arresting deputy did not have the reasonable suspicion required for a police stop, and that the trial court consequently erred in denying his motion to suppress the evidence acquired after the stop. The deputy observed possible impaired driving and a suspicious entrance into a largely deserted parking lot at 2 a.m., followed by D's initial failure to heed the deputy's signals to stop. The court concludes that these articulable facts justified the investigative stop. |
| County of Jefferson v. Lenz | Oct 26, 2000 | 99-1328 | Blood Test - D appeals his conviction for OMVWI and driving with a PAC. He claims that the circuit court erred in denying his motion to suppress evidence because the police officer misstated the penalty for refusing to take a chemical test to determine the concentration of alcohol in D's system. Because they conclude that the circuit court's finding that the officer did not misstate the penalty for refusal is not clearly erroneous, the decision of the circuit court is affirmed. |
| County of Dane v. McKenzie | Oct 26, 2000 | 00-1008, 1009, 1010 | Blood Test (Chain of Custody) - D appeals judgments convicting him of OMVWI claiming the County did not establish that the blood test result admitted at trial was from the blood sample taken from him following his arrest. Here the State in proving up a chain of custody has satisfied the court that as to the integrity of the evidence, that it remained the same between gathering and examination and that what was examined was that which was gathered. |
| Town of Delevan v. Lange | Oct 25, 2000 | 99-1553-CR | Implied Consent - D contends that the implied consent law, Wis. Stat. §343.05, is unconstitutional under the 4th and 14th Amendments to the United States Constitution. In the trial court, D challenged the warrantless extraction of his blood by the police under the implied consent law following his arrest for OWI. He contends that the test was coercive and nonconsensual and that "exigent circumstances" did not exist to support the warrantless extraction of his blood. Because the issues D raises in the appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, the conviction is affirmed. |
| State v. Powers | Oct 19, 2000 | 99-1406-CR | Blood Test - D appeals a judgment convicting him of OMVWI. He claims the trial court erred in denying his motion to suppress evidence of the results of a blood test that was administered following his arrest. Because the issues D raises in the appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, the conviction is affirmed. |
| State v. Waddell | Oct 19, 2000 | 99-2833-CR | Reasonable Suspicion - A woman called the police to report that D had struck her car with his car. She gave the police a detailed description of D's vehicle, including its license plate number. An officer was notified and soon found the vehicle in question, observed it for one or two minutes, and then stopped it. He did not see any signs of intoxication during his brief observation of D's driving, but noticed that D had watery eyes and slurred speech. The officer inspected the outside of the vehicle and noticed no damage. The office then performed field sobriety tests on D, who failed the tests, and was arrested for OWI. D appeals from a judgment of conviction for OW contending that the officer who arrested him did not personally have reasonable suspicion to stop his vehicle. The specific description given by the caller gave the officer reasonable suspicion to stop D. The observation of D plus the dispatch report of possible intoxication gave the officer reason to be suspicious that D was intoxicated.The officer was justified in broadening his inquiry to include field sobriety tests. |
| State v. Edwards | Oct 19, 2000 | 99-1384-CR | Blood Test - D appeals a judgment convicting him of OMVWI. He claims the trial court erred in denying his motion to suppress evidence of the results of a blood test that was administered following his arrest. Because the issues D raises in the appeal were decided in the State's favor in State v. Thorstad, 2000 WI App 199, No. 99-1765-CR, the conviction is affirmed. |
| State v. Keiler | Oct 10, 2000 | 00-1025-CR | Reasonable Suspicion - D appeals from a judgment of conviction for OWI, second offense. He contends the police officer did not have reasonable suspicion to stop his vehicle. D's gross reduction in speed, combined with his lane deviation, gave rise to reasonable suspicion that D was driving while intoxicated. |
| State v. Willenkamp | Oct 3, 2000 | 00-0684-CR | Implied Consent - D appeals his judgment of an order denying his motion to suppress the results of a blood test taken in connection with his arrest for OMVWI. D advances two arguments: (1) the implied consent law is unconstitutional as applied; and (2) a deputy's modification of the implied consent warning improperly coerced D to submit to the blood test by threatening revocation for lack of compliance. D did not refuse to take the test, nor does the record reveal that he gave any indication that he would prefer another test. Because the requirements of Bohling were satisfied, the court concludes that D's blood test was a reasonable search under the 4th Amendment. Neither was there testimony that indicates D was coerced into consenting to the blood test, thus giving up his right to assert a reasonable objection to the blood test. |
| Shawano v. McFaul | Oct 3, 2000 | 000754-FT | Reasonable Suspicion - D appeals from his conviction for a first offense of OMVWI. D contends that because the County failed to produce at the suppression hearing the Menominee tribal officer who initially detained him, the court was compelled to suppress the evidence. Alternatively, he contends a lack of reasonable suspicion. Because the County had the burden to show that the officer had reasonable suspicion to stop D, it could determine whom it wanted to call as a witness at the suppression hearing. Based on D's testimony alone, the trial court reasonably concluded that when an officer finds a truck stuck in the ditch, apparently because of erratic driving, and perpendicular to the roadway at 9:40 p.m., he had a reasonable basis to temporarily stop and detain the individual to inquire whether there was a traffic violation. |
| County of Rock v. Goldhagen | Sept 28, 2000 | 00-0983-FT, 00-0984-FT | Miranda Warning - D appeals his convictions OMVWI and illegal passing. He claims that the circuit court erroneously exercised its discretion in allowing the county to introduce evidence that he had refused to answer the questions of police officers subsequent to being given Miranda warnings. Because the evidence that D drove under the influence of alcohol and illegally passed another vehicle was overwhelming, the court concludes that there is not a reasonable possibility that the admission of his refusal to answer the officers' questions after receiving a Miranda warning contributed to his conviction. Therefore, the error was harmless. |
| State v. McConochie | Sept 13, 2000 | 00-0672 | Constitutionality - D appeals from a conviction for 2nd offense OMVWI arguing that the default judgment entered in his first offense was constitutionally defective and, therefore, not valid for purposes of sentence enhancement under Wis. Stat. §346.65(2)(b). He contends that his motion to collaterally attack the prior civil forfeiture determination was wrongly denied. D’s Dodge county forfeiture offense was not used to enhance punishment for the present offense, but to classify him as an adjudicated offender subject to criminal sanctions for future OMVWI violations. Thus the court holds he is not entitled to collaterally attack the Dodge county default judgment as being constitutionally invalid. |
| State v. Harshman | Sept 12, 2000 | 00-0993-CR | Blood Test - D appeals an order denying his motion to suppress the results of a blood test taken in connection with his arrest for OWI. D advances four arguments: (1)The arresting officer went beyond the bounds of a proper investigative detention; (2)controlling Wisconsin authority creates an "exigency per se" rule when evidence of blood alcohol content is sought; (3) this court should eschew a per se rule in favor of a case-by-case analysis; (4) the results of the blood test should be suppressed because he gave a reason for not submitting and was willing to take an alternative test. The court concludes that the arresting officer stayed within the proper bounds of an investigative detention and that the blood test was not administered in violation of the Fourth Amendment. |
| State v. Jones | Sept 7, 2000 | 00-0393 | Probable Cause - D appeals a judgment convicting him of OMVWI claiming lack of probable cause. He also contends that Wis. Stat. §343.303 is unconstitutional as interpreted by the Wisconsin Supreme Court in County of Jefferson v. Renz, 231 Wis.2d 293, 603 N.W.2d 541 (1999). The deputy noted a strong odor of intoxicants, bloodshot, glassy eyes and slurred speech. The deputy requested D to submit to a PBT, which yielded a result of .13. Since the court is bound by Renz they hold the deputy was justified in requesting the PBT, even if he did not have probable cause to arrest D for OMVWI at the time of the request. |
| State v. Bogdanske | Sept 6, 2000 | 00-0560-CR | New Trial - D appeals from his convictions for 3rd offense OWI and hit and run and from an order denying postconviction relief. D contends that he is entitled to a new trial in the interest of justice on the hit and run conviction because two key witnesses who could provide exculpatory testimony were not available at trial and, thus, the controversy was not fully tried. D also argues that he is entitled to a new trial on the OWI conviction because defense counsel was ineffective for failing to object to the jury instruction on expert testimony and hypothetical questions that he claims impermissibly shifted the burden of proof to the defense. The court rejects D’s argument on the OWI charge, but agrees that in the interest of justice, he is entitled to a new trial on the hit and run charge. |
| State v. Fields | Sept 6, 2000 | 00-0694 | Traffic Stops- The court of appeals held that defendant's slightly longer than normal stop at a stop sign did no give rise to the level of "specific and articulable facts" necessary to justify a stop based on reasonable suspicion that the defendant had committed or was committing an unlawful act. Here, the officer had a "hunch" that something was going on. However, the court reasoned that an investigative stop cannot be based on an inchoate and unparticularized suspicion or "hunch." The court held that the Fourth Amendment requires at least a minimal level of objective justification for making the stop. |
| State v. Huling | Aug 24 , 2000 | 00-0510-CR | Probable Cause - D was convicted of OWI after the trial court denied her motion to suppress the results of a blood alcohol test and other evidence. She argues that without a field sobriety test or PBT, the arresting officer lacked probable cause to arrest her. At the time of arrest, the officer knew that: (1)D's car hit a tree in a one-vehicle accident; (2)she smelled strongly of alcohol; and (3)she admitted consuming ten drinks in a five-hour span prior to the accident. Based on the officer’s reasonable belief that D was driving while impaired, the court concludes he had probable cause to arrest her. |
| State v. Luber | Aug. 17, 2000 | 00-0456-CR | Double Jeopardy - D is granted leave of appeal for a non-final order that denied her motion to dismiss a second trial on a charge of driving with a PAC after a jury had deadlocked on that charge and found her not guilty on the charge of OWI. D contends that a retrial on the PAC charge violates her constitutional guarantee against double jeopardy on two different grounds and that a retrial is also barred by statute, by the doctrine of collateral estoppel, and because the trial court erroneously declared a mistrial. The court decides only one issue because it is dispositive: they conclude a second trial on the PAC charge would constitute double jeopardy because there was insufficient evidence at the first trial to convict D on that charge. Therefore, they reverse the trial court's order denying D’s motion to dismiss that charge. |
| State v. Thorstad, 2000 WI App 199 | Aug 17, 2000 | 99-1765-CR | Blood Test - The State appeals from an order granting D's motion to suppress a warrantless blood test performed to obtain evidence of D's intoxication. D argues that the blood test was properly suppressed because it was coerced and nonconsensual, and therefore, an unreasonable search in violation of the Fourth Amendment. The court holds that the test was admissible because it met the constitutional requirements for warrantless blood tests set out in Bohling, 173 Wis.2d at 533-34. Recommended for Publication. |
| State v. Meza | Aug 16, 2000 | 00-1126-CR, 00-1127 | Terry
Stop - A DNR warden approached the D on public property, ordered that D's children get back into
D's vehicle and asked D a number of questions regarding what he was doing. During this
interaction, the warden smelled intoxicants on D's breath. D was subsequently arrested and
charged with OWI. The issue in this case is whether a consensual encounter or a Terry stop took place between the DNR warden and the D. Both parties agree that at the time the warden approached D, no reasonable suspicion existed to justify a Terry stop. The court holds that aTerry stop occurred because the warden asserted his authority and no reasonable person would have believed he or she would have been free to go. Consequently, the evidence supporting the charges must be suppressed. |
| City of Menomonie v. Sholz | Aug 15, 2000 | 00-1155-FT | Lawful Stop - An officer saw D make a sweeping u-turn, nearly colliding with an oncoming car. D was stopped and arrested for OWI, but claims the stop was unlawful. In executing a valid stop, a law enforcement officer need only reasonably suspect, in light of his or her experience, that some kind of illegal activity is afoot. See Terry. Here, D's vehicle traveled in the oncoming lane of traffic for one-quarter block. By driving on the wrong side of the road, D was violating a traffic law. See Wis. Stat. §346.05. Thus, the officer had more than reasonable suspicion to justify the stop. |
| State v. Drews | Aug 9, 2000 | 99-2286 | Blood Test - D asserts that his aversion to needles obliged the arresting officer to offer a breath test rather than a blood test to determine his blood alcohol concentration. The law in Wisconsin is found in City of Madison v. Bardwell, 83 Wis. 2d 891, 266 N.W.2d 618 (1978). In Bardwell, the supreme court concluded that it is solely the law enforcement agency's decision about which test to designate as the first of three alternate tests, and the driver does not have the right to refuse the first test offered and select one of the other two. Recommended for Publication. |
| State v. Raddeman | Aug 9, 2000 | 00-0143-CR | Dual Prosection (OWI & PAC) - D was charged with OWI and PAC, but the trial court held that the prosecution of both offenses was fundamentally unfair in violation of his due process rights. The State appeals. The court relies on State v. Bohacheff, 114 Wis. 2d 402, 407, 338 N.W.2d 466 (1983) which held that "the complaint does not violate double jeopardy protections because the statute subjects the defendant to only one conviction and one punishment." The court holds the State's dual prosecution of D for both OWI and PAC does not violate D's double jeopardy protection nor his due process rights. Recommended for Publication. |
| State v. Mallow | Aug 3, 2000 | 99-3236-CR | Evidence - D appeals a judgment convicting him of OMVWI. He presents two issues for review:whether the trial court erred when it did not permit D to use a field sobriety manual in cross-examination, and when it excluded a blood test kit instruction sheet which D offered into evidence. The court finds D failed to show any foundation for the manual, and the court is unable to reach the merits of this issue because D failed to make an offer of proof in the trial court. D also did not establish the relevance of the instruction sheet he proffered to any facts at issue in the case. Thus, the court holds that the trial court did not erroneously exercise its discretion in these evidentiary rulings. |
| County of Waupaca v. Hyland | Aug 3, 2000 | 00-0935-FT | Double Jeopardy - D was given a citation for OMVWI after an officer came upon D in a vehicle with the engine running in the parking lot of a tavern. D also received a citation for operating a motor vehicle with a PAC after D agreed to an evidentiary chemical test of his breath and the test result was .10%. The citations were dismissed because the State failed to prove D was operating the motor vehicle at the time of his arrest. The State appeals, but fails to file a brief responding to D's contention that the State's appeal violates his right against double jeopardy. Accordingly, the court concludes that the State has conceded that this appeal violates D's right against double jeopardy and therefore dismisses the appeal. |
| State v. Wolter | July 20, 2000 | 99-2421-CR | Sentencing - The State appeals from a judgment convicting D of 7th offense OWI, and from an order denying reconsideration of the probation sentence imposed on D On appeal the State argues that Wis. Stat. §973.09 (1997-98), before its recent amendment, mandated a jail or prison term for Dr's offense. D agrees, but contends that the statute violated his due process and equal protection rights because it arbitrarily differentiated between intoxicated drivers and all other classes of offenders, except those guilty of the most serious crimes. The court concludes that the statute is constitutional because the legislature could reasonably have determined that a high rate of recidivism for repeat drunk drivers rendered probation an inappropriate sentence. Therefore they reverse and remand for resentencing. |
| State v. Johnson | July 19, 2000 | 00-0457-CR | Multiple Issue Appeal - D appeals 2nd offense OWI. First, D argues that probable cause is required to stop a driver suspected of violating a noncriminal traffic offense. Because all that is required is a reasonable suspicion, the court rejects this argument. Second, D asserts that the maneuver he completed on the highway was not a violation of the traffic laws; therefore, the officer did not have either reasonable suspicion or probable cause to conduct a stop. Because D's maneuver was an illegal turn, we conclude that the officer had a reasonable suspicion to support a stop. Finally, D contends that the failure to perform field sobriety tests bars the administration of a PBT and the admission of the results to show probable cause for arrest. Given that the failure to perform field sobriety tests is not a fatal defect and that under the totality of the circumstances the officer had probable cause to believe Dwas operating while intoxicated, the court holds that the circuit court did not err in denying D's motions to suppress. |
| Douglas County v. Leinweber | July 18, 2000 | 00-0313, 00-0314 | Anonymous Tip - Douglas County appeals a judgment dismissing the charges against D for OMVWI, operating a motor vehicle with a prohibited BAC and possessing open intoxicants in a motor vehicle on a public highway. The trial court concluded that the arresting officer conducted an unlawful traffic stop of D and dismissed the charges. Based on the trial court's credibility determination, the officer did not corroborate any suspicious or illegal activity after receiving an anonymous tip that D was OWI. Without those independent observations, there were insufficient indicia of reliability for the officer to reasonably rely on the anonymous tip in stopping D. Suppression, however, was the appropriate remedy, not dismissal of the charges. Therefore the matter is remanded for further proceedings. |
| State v. Peffer | July 18, 2000 | 00-0232-CR | Probable Cause - D appeals from the judgment of conviction, following his no contest plea, for operating a motor vehicle with a prohibited BAC. He argues that the police did not have probable cause to arrest him. D's accident, his angry reaction to the officer, his staggering, swaying, and dragging his feet, his swearing, his inconsistent answers to officer's inquiries about what had happened, his drinking, his driving and parking of the vehicle, his bloodshot and watery eyes, the odor of alcohol on his breath, and his refusal to perform a field sobriety test established far more than a mere possibility that D had committed injury by intoxicated use of a motor vehicle |
| State v. Jurkovic | July 18, 2000 | 99-3231 | Blood Test - D appeals from an order determining that he unlawfully refused to submit to a chemical test after arrest for his 4th OWI violation. He claims that the trial court erred when it determined that his repeated request to speak with an attorney when asked whether he would consent to a blood test constituted a refusal. The court applies the 3-part Quelle test and finds that any "misinformation" was not misleading and did not affect D's ability to make a choice. Therefore, the trial court reached the correct conclusion when it ruled that D's conduct constituted an unlawful refusal to submit to a chemical test. |
| City of Milwaukee v. Bell | July 11, 2000 | 99-2541 | Multiple Issue Appeal - D's judgment convicting him of the municipal charge of operating a motor vehicle with a PAC affirmed. The court rejects D's argument that the trial court erred in: (1)refusing to take judicial notice of his acquittal of the companion OMVWI charge; (2)denying his motion that the City be prohibited from arguing that D was impaired at the time of the offense; (3)instructing the jury that it could infer that D had a PAC when he was driving because, at the time of his intoxilyzer test, his alcohol content was over the permissible limit; and (4)allowing the City to elicit testimony that he failed the field sobriety tes |
| State v. Smaxwell | April 26, 2000 | 99-2261 | Procedural Issue - The trial court in this case dismissed the complaint because rather than using the legal term of art "incorporated by reference" to incorporate the incident report into the complaint, it simply stated that an incident report was attached. The court of appeals held that the trial court's ruling was "unnecessarily formalistic." The court reasoned that common sense dictated that the term "attached" was sufficient to incorporate the incident report into the criminal complaint and meant basically the same thing as "incorporated by reference." |
