|
CASE NAME |
DATE |
DOCKET NO. |
ISSUE |
| November 25, 2003 |
2003 WI 148 |
Holding: The Supreme Court held that an underage drinker who is injured as a result of the consumption of alcohol that was provided to a companion underage drinker, is considered an injured "third party" under the exception to immunity and may proceed with a cause of action against the provider of alcohol. The issue of Craig Anderson's consumption of alcohol will bear upon his contributory negligence, but it does not affect his status as a third party to Mary Anne's provision of alcohol to her son Greg for purposes of the statutory exception to immunity. | |
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October 15, 2003 |
03-1113 |
Holding: Drunk driving laws apply to “highways” and to “all premises held out to the public for use of their motor vehicles,” and the state has the burden of proving that a suspected drunk driver was driving on a highway or on premises held out to the public. Overview: D appeals a conviction of OWI, second offense.A police officer responded to a report of a suspicious vehicle parked at a building construction site.The officer found the D sleeping inside a pickup truck with the engine running.When the officer approached the D, the D informed him that he had a fight with his girlfriend and since he was the contractor for the new building, he decided to spend the night on the building site.The officer administered several field sobriety tests and arrested the D for OWI, second offense.The D moved to dismiss the complaint or suppress the evidence since he was arrested for sleeping in his car on a construction site.The trial court denied both motions and the D was convicted of OWI, second offense. | |
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October 7, 2003 |
03-1116 |
Holding: The implied consent law is designed to facilitate the gathering of chemical test evidence to remove drunk drivers from the road, not to give greater 4th Amendment rights to a drunk driver. Overview: D is appealing a conviction of OWI second offense, claiming that the trial court erred in failing to suppress his blood alcohol test since the arresting officer misinformed him of the penalty he would face if convicted.The D conceded that the arresting officer had probable cause to arrest him and that his BAC was above the legal limit, but he argues that when he asked the officer what his penalty would be, the officer misinformed him. | |
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October 2, 2003 |
02-3225 |
Holding: Prior convictions do not need to have occurred before the commission of a new offense, rather criminal penalties are based on convictions at the time of sentencing. Overview: D appeals a conviction of OWI, fifth offense.Originally the D was charged with OWI, third offense, and PAC, third offense; but, while the case was pending, the D was convicted of OWI to more times.The court held this originally third offense to be a fifth offense for the purpose of sentencing.The D argues that the intervening convictions should not have changed the grade or level of the current offense and that he should have been sentence for OWI as a third offense. | |
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October 1, 2003 |
03-0952 |
Holding: Exigent circumstances must exist to justify the warrantless and nonconsensual blood draw once a valid alternative test has already been performed. Overview: The State appeals the trial court’s granting of a motion to suppress a blood sample.The D was pulled over by an officer because his car’s license plate was registered to another vehicle.After pulling the D over, the officer noticed a strong odor of intoxicants coming from the vehicle and that the D’s speech was slurred and his eyes bloodshot and glassy.After the D failed field sobriety tests, the officer administered a preliminary breath test and transported the D to the police department where the D agreed to provide a sample of his breath for chemical analysis.Even though it was already clear that the D’s BAC was over the legal limit, the officer chose to seek a blood test as well.The D refused and a forced blood sample was ultimately taken.The D motioned to suppress the blood test results since the breath test had already established that his BAC was beyond the legal limit.The trial court granted the D’s motion.
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October 1, 2003 |
03-0385 |
Holding: The proof requirements of the repeater statute in the criminal code do not apply in OWI prosecutions, and a DOT driving transcript is sufficient to prove a D’s prior convictions. Overview: D appeals a conviction of BAC-PAC, third offense, claiming that the State’s submission of his DOT driving transcript was inadmissible and insufficient to establish his repeater status beyond a reasonable doubt, and requests that the court remand his conviction for sentencing as a PAC, first offense.
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September 30, 2003 |
03-1110 |
Holding: Reasonable suspicion must be based on specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Overview: D appeals a conviction of OWI, third offense, claiming the trial court erred in denying her motion to suppress evidence gathered following an allegedly unlawful traffic stop.An officer approached a four way stop and observed the D make a faster and wider turn than usual.Suspecting the D was intoxicated, he proceeded to follow the D and observed her weave within her lane of traffic four times.The officer proceeded to pull the D over and arrested her for OWI.The D claims the stop was unlawful because the officer did not have reasonable suspicion to stop her. | |
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September 25, 2003 |
03-0701 |
Holding: An officer is not required to rule out the possibility of innocent behavior before stopping a D’s car, but experience and observation can provide reasonable suspicion to stop a D’s vehicle. Overview: D appeals a conviction of OWI, third offense claiming that the trial court erred in denying her motion to suppress evidence gathered following an allegedly unlawful traffic stop.D was stopped by an officer after the officer observed her make what he considered to be a faster and wider than normal turn and observed her vehicle weave within its lane of travel approximately four times.The D moved to suppress on the grounds that the officer had no reasonable suspicion for stopping her.At trial the D provided an explanation for the weaving and claimed that her turn at the stop was not unusual.The trial court did not hold confidence in the officer’s testimony, but concluded the officer had a reasonable suspicion that the D might be impaired, based on the time of night and the observation of the car weaving. | |
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September 23, 2003 |
03-0643 |
Holding: A warrantless entry in an individual’s residence is not considered unconstitutional in an emergency situation as long as it satisfies both the subjective and objective prongs under that doctrine. Overview: The D appeals the conviction of OWI second offense.The D drove his truck onto a lawn and hit the porch of a home, pushing it several feet onto the lawn.The D then drove home, parked, locked his truck and went into his home.After being dispatched to the scene of the accident and getting the truck’s license plate number from a witness, the officers secured the D’s address.The officers went to the D’s home and after getting permission from a supervisor, entered the house to check if anyone was injured.The officers found the D asleep in bed and woke him up.After asking the D questions about the accident, the officers had the D perform field sobriety tests, which he failed.The D was then arrested for OWI, second offense and for hit-and-run.The D filed a motion to suppress the evidence, claiming it was a result of a warrantless entry and violated his 4th Amendment rights, which was denied. | |
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September 23, 2003 |
02-1588 |
Holding: The fact of a prior conviction is not an element of the criminal charge and penalty provisions apply regardless of the sequence of the offenses. Overview: D appealed a conviction for OWI, third offense.The D had been arrested for OWI on two previous occasions and was sentenced for those two arrests on the same day, however he was convicted for the second offense prior to being convicted for the first.Following the third OWI conviction, sentencing was imposed based on that conviction.The D appealed the consideration of the second OWI offense because he was convicted prior to the conviction of the first offense, arguing that the second conviction was void and could not be considered in the present case. | |
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September 10, 2003 |
03-0682 |
Holding: A motorist on a public highway is deemed to have given consent to one or more breath, blood or urine tests for purposes of determining the presence or quantity of alcohol or other drugs in his/her system. Overview: D appeals an order of revocation of his driver’s license after refusing got take a breathalyzer test.Firefighters found the D’s van in a ditch and stopped to investigate.After finding out if the D was injured, one of the firefighters noticed the smell of alcohol on the D’s breath, and the D stumbling quite a bit.The police were called and officers arrived at the scene.Upon refusing to submit to a breathalyzer test, one of the officers issued a notice of intent to revoke the D’s driving privileges.The issue here was whether or not the D’s van was on a highway. | |
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September 9, 2003 |
03-0991 |
Holding: Exclusion of certain evidence or testimony is not a reason valid argument for appeal if the evidence or testimony is found to be irrelevant. Overview: D appeals an order denying his motion for a new trial and his conviction of OWI, arguing that his right to present a defense when the court excluded testimony that he had asked his first trail attorney to have his blood sample retested.After attending a party, while driving home, the D testified that his arm began to feel strange and that the next thing he knew, he was in the hospital.While at the hospital, the D agreed to submit to a blood sample test for his BAC, which tested beyond the legal limit.At trial the D asked his first attorney to retest the blood sample which he did not, and by the time his new attorney had been obtained the lab had already destroyed the sample.The D wanted to testify that he had asked his first attorney to retest the blood, but the trail court refused and the D was convicted of OWI and OWI-PAC. | |
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September 9, 2003 |
03-0674 |
Holding: If a D chooses to resist a blood test to determine BAC levels, a physician performing the test may take such medically appropriate steps as they would use to control any difficult patient as long as the force is not inappropriate. Overview: D appeals a conviction of OWI, second offense claiming that the drawing of his blood violated his Fourth Amendment rights, specifically the fact that he was injected with a tranquilizer when he was physically resisting the blood draw.D was arrested for OWI and transported to the Sheriff’s department where he was informed of his rights regarding chemical breath testing which he refused.The officers then transported the D to a medical center for a blood draw.D struggled with the officers and refused to go into the hospital without being carried.The D was given a tranquilizer, after which he fell asleep, had his blood drawn and later awoke in jail.The trial court denied his motion to suppress the results of the blood test. | |
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August 21, 2003 |
02-3336 |
Holding: The test for whether an arrest has occurred, is not dependent on whether the subject of the arrest was told he or she was under arrest, but an objective test that looks at the totality of the circumstances. Overview: D appeals his license revocation claiming the circuit court erred in denying his motion to dismiss the refusal hearing.D was stopped by a trooper near a construction site and requested assistance from a Town of Madison police officer, who transported the D to the police station for field sobriety testing.The D refused to perform the tests and was transported to the county jail for chemical testing.At the county jail, the officer read the D an “Informing the Accused” form, and the D refused to submit to a chemical breath test.As a result of this refusal, the D’s license was revoked for one year.D argues that there was never a formal arrest made, because the officer never told him that he was under arrest and that there was no basis for his arrest to begin with. | |
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August 21, 2003 |
02-2917 |
Holding: While the implied consent statute distinguishes between the PBT and the breathalyzer test, drivers do not need to be informed of that distinction. Overview: D appeals revocation of his operating privileges for a period of one year based on his refusal to submit to a chemical test to determine his BAC.D was stopped for driving erratically.The trooper asked the D to give a PBT sample, which the D refused.The trooper then arrested the D for OWI and transported the D to a station, where D again refused to take a breath or blood test.The D claims that the trooper did not distinguish between the breath and the blood test.The D argues that he was not adequately informed of his rights under the implied consent statute.However the trooper read the “Informing the Accused” form to the D, which adequately warns the accused driver about the testing requirement and the consequences of refusing the test. | |
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August 20, 2003 |
03-0676 |
Holding: An employee of a reputable hospital whose job it is to draw blood may be considered amply qualified for the purposes of both safety and accuracy concerns. Overview: D appeals a conviction of OWI based on the argument that the medical technician who drew his blood did not meet statutory requirements.D was arrested for OWI and PAC, second offense.After being arrested, the D was taken to a hospital to take a blood sample.The test results revealed that the D’s BAC was above the legal limit.The D argues that because a medical technician drew his blood, but under statutory requirement, only a physician, registered nurse, medical technologist, physician assistant, or person acting under the direction of a physician could draw a sample to determine the presence or quantity of alcohol. | |
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July 17, 2003 |
02-3134 |
Holding: A community caretaker action must be totally separate from the detection, investigation or acquisition of evidence relating to a criminal violation. Overview: D appeals a conviction of OWI, second offense, claiming the court erred in denying her motion to suppress.An officer responded to a request from another officer to do a welfare check on a woman walking in downtown LaCrosse who appeared to be crying.When the officer saw the D she was pulling out of a parking space.The officer followed the D noticing that she was traveling at a very slow speed and pulled her over, claiming he felt the D was either intoxicated or the person observed crying.The officer saw that the D was not crying but that her eyes were glossy, her speech was slurred and there was an odor of intoxicants coming from her vehicle.After the D failed field sobriety tests, the officer arrested her and took her to a hospital to have her blood drawn to test her BAC.The D moved to suppress the evidence and dismiss the charges asserting the traffic stop was illegal. | |
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July 11, 2003 |
2003 WI 105 |
Holding: District-by-district guidelines are constitutional because they fulfill the rational basis test by reducing sentence disparity within each judicial district, by matching appropriate sentences within statutory ranges. Overview: D appealed a conviction of OWI, fourth offense, and the denial of postconviction relief by the Court of Appeals.D was found asleep in her vehicle in a ditch near her home.After failing field sobriety tests, she was arrested for OWI.After a jury found her guilty of OWI and OWI-PAC, the prosecution requested a sentence based on the sentencing guidelines of the time.However, the defense acknowledged the guidelines, but felt a shorter sentence was much more appropriate.Following the guidelines, the court sentenced her accordingly.The D filed a motion claiming the authorizing statute for the sentencing guidelines was unconstitutional. The final version of this opinion will appear in the bound volume of the official reports. | |
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July 8, 2003 |
03-0227 |
Holding: (1) When the plain meaning of a statue is unambiguous, the
words of the statute are given their obvious and intended meaning as
defined in a recognized dictionary. (2) When a trial court imposes a
sentence in excess of that which is authorized by law, the remedy is to
void the portion of that sentence which is in excess and the remaining
sentence shall stand as altered. | |
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July 2, 2003 |
02-2771 |
Holding: When an informant exposes himself or herself to being identified, that exposure enhances reliability because the person could be arrested if the tip proved to be fabricated, and the informant gives details that are corroborated by the officer, it is sufficient for an officer to perform a stop. Overview: D appeals an OWI with PAC conviction after pleading guilty once his motion for suppression was dismissed. An officer received a call from dispatch that a motorist, who gave his name, reported by cell phone, observing another motorist driving erratically and that the motorist had stopped in a fast food restaurant’s parking lot.The officer saw a vehicle that matched the description given by the caller and pulled within 20 to 30 feet of the vehicle in the parking lot.The officer approached the vehicle, identified himself, and informed the D of the call he had received.After asking for the D’s driver’s license, he noticed that the D had bloodshot eyes and slurred speech and that an odor of alcohol was coming from inside the vehicle.The D was cited for OWI with PAC. | |
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July 2, 2003 |
03-0422 |
Holding: As the trier of fact, the court has the ability to weigh the credibility of the witnesses and when the testimony is conflicting, has the duty to determine where the truth lies; this means that the trier of fact may choose some testimony and reject other testimony to arrive at the truth about what happened. Overview: D appealed an OWI conviction claiming the trial court erred by denying the D’s motion to suppress evidence obtained subsequent to the traffic stop.The D was stopped by an officer for failing to change lanes while an emergency vehicle was parked on the side of the road.At the hearing on the D’s motion, the officer and his partner testified that the D failed to move to another lane upon approaching the officers’ vehicle in violation of Wisconsin statute.After the D failed to move to another lane, the officer proceeded to pull him over, performed field sobriety test, and arrested the D for OWI and took him to the police department, where the D refused to take a chemical test of his breath.Based on the testimony of the officers and the D and his passenger, the court denied the D’s motion to suppress.There was disagreement between the officers and the D as to whether there was traffic that was blocking the D from switching lanes as he approached the officers’ vehicle.The D claims that the trial court erroneously reconciled the various testimonies and created a third version of the facts that was not found in the record. | |
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July 2, 2003 |
02-1313 |
Holding: A trial court is only obligated to advise a D of the right to counsel prior to accepting a waiver of counsel; the trial court is not required to provide specific advice to a D that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. Overview: After being convicted for OWI 4th offense, the D appealed his second OWI conviction, claiming that that the trial court, which adjudicated his second OWI conviction, failed to advise him that he had the right to counsel appointed by the court and paid for by the county, even though he did not qualify for counsel provided by the state public defender.The D claims that this precluded a knowing, intelligent and voluntary waiver of his constitutional right to counsel. | |
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June 26, 2003 |
2003 WI 65 |
Holding: When a charging document for repeater status in referring
to the predicate convictions, describes the offenses, states the
correct county where the convictions occurred, cites the case number
and misstates the date of the convictions by only one calendar day,
this misstatement does not meaningfully changed the basis on which a D
enters a plea. | |
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June 24, 2003 |
02-2897 |
Holding: A plea agreement can be vacated only where there is a material breach of the agreement, not from unspoken expectations that are not evident or explained to the D at the time of the agreement. Overview: D was charged with OWI and PAC in both 1993 and 2000.Per plea bargains, the PAC offenses were dismissed.In 2001, the D was charged with OWI and during trial, collaterally attacked all of his underlying convictions.The court allowed the State to vacate the plea agreements it had previously made with the D and reinstate the PAC charges. D appealed the reinstatement of the PAC charges. | |
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June 24, 2003 |
02-2975 |
Holding: In cases where a D moves for a mistrial and the proceedings are terminated at the D’s request and with his consent, the general rule is that the double jeopardy protection is not a bar to reprosecution. Overview: D appealed a conviction of OWI 4th Offense after his first trial ended in a mistrial.At the time of the first trial, the D made no contention that a retrial might be barred by double jeopardy considerations.Instead it was accepted by both sides that the mistrial was being granted due to the fact that the jury was deadlocked.Following his conviction, the D raised the double jeopardy issue on appeal. |
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CASE NAME |
DATE |
DOCKET NO. |
ISSUE |
|
June 19, 2003 |
03-0239 |
Holding: Prior convictions relied upon as penalty enhancers need to be in existence at the time of sentencing, but do not need to be in existence at the time of the offense, unless the prior offenses are listed as elements of the statute violated. Overview: The D appealed the denial of a motion to dismiss a conviction of OWI and OWI-PAC, third offense, claiming that the facts were insufficient to establish that either of these counts was her third, because the two other offenses occurred after the date of the present incidents. The D was arrested for OWI after testing revealed a BAC level beyond the legal limit. At the time of the D’s arrest, she had two other drunk driving cases pending. Once convictions had been entered in those two cases, the State charged the D with OWI and OWI-PAC third offense. | |
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June 18, 2003 |
03-0239 |
Holding: Absent a warrant, consent, probable cause, or exigent circumstances, police entry into an individual’s home is illegal, and any evidence gathered after such entry must be suppressed. Overview: The D appealed a conviction of OWI, second offense, after the trial court denied his motion to suppress evidence. The officer received a dispatch to look for a possibly intoxicated driver in a pickup truck.A second dispatch reported that a vehicle with the same vehicle description had just left a gas station without its headlights on, and that according to the gas station clerk, the driver had seemed intoxicated while inside the station. After dispatch provided the officer with the truck’s license plate number, the officer ran the number, identified the D as the registered owner, and headed for the D’s address. Upon arriving at the D’s apartment, he observed a vehicle matching the description given by dispatch and went to the D’s door. Once the D answered the door, the officer placed his foot in the doorway so that the door could not be slammed on his face, and smelled the odor of intoxicants coming from the D’s home and observed slurred speech. After concluding that the D was under the influence of an intoxicant, the officer moved further into the D’s home and placed him under arrest. At that point a second officer arrived as backup and searched the D’s briefcase and obtained his driver’s license. The D appealed arguing that his Fourth Amendment rights were violated when the officer entered his apartment without his consent and without an arrest warrant. The final version of this opinion will appear in the bound volume of the Official Reports. | |
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June 18, 2003 |
03-0239 |
Holding: When an officer observes unlawful conduct, there is no need for an investigative stop; the observation of this unlawful conduct gives the officer probable cause for a lawful seizure. Overview: The D appealed a forfeiture conviction for OWI, after his motion to suppress on the basis that the stop was not supported by probable cause, was denied. After observing that one of the D’s vehicle’s four taillight bulbs was out, the officer proceeded to stop the D for the defective taillight. As the officer approached the vehicle, he noticed an odor of intoxicants and that the defendant had bloodshot eyes. After asking the D if he had been drinking and not being able to understand his response, the officer had the D perform field sobriety tests. The officer did not feel the D could safely operate a vehicle from that location and placed the D under arrest for OWI. At trial, the officer testified that although there was light coming from the D’s taillights, he did not feel they were adequately illuminated on one side and decided to stop the D. The court went on to dismiss the citation for a defective tail lamp, as well as the OWI-PAC charge, but found the D guilty of OWI. | |
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June 12, 2003 |
02-3007 |
Holding: A sufficient oral colloquy by the court, supplemented by specific forms of waiver signed and read by the D, demonstrate that a D understands the difficulties and disadvantages of self-representation, thus satisfying the requirements of a valid waiver of counsel. Overview: After charging the D with OWI, fourth offense, the State appealed a decision precluding the consideration of one of the three prior convictions. The trial court questioned the D as to his understanding of his right to an attorney, the D stated he understood and signed a waiver form.The court then questioned the D as to his understanding of the plea forms, and the D expressed his understanding, signed the plea agreement, and was convicted of OWI. Here, the D moved to preclude consideration of this prior conviction on the grounds that he did not knowingly, intelligently, and voluntarily waive his right to counsel, and because he did not have counsel when he entered the plea, there was not a proper colloquy. The Court of Appeals concluded that the court’s colloquy satisfied the requirements of State v. Polak, 254 Wis. 2d 585, and reversed the circuit court’s order precluding consideration of the conviction in question. | |
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June 12, 2003 |
02-2090 |
Holding: On appeal of a jury’s verdict, it is the court’s duty to search the record for evidence in support of the verdict, and on review of the evidence, the court here concluded that there was sufficient evidence in the record to support the jury’s finding that the D’s ability to drive was impaired by intoxication. Overview: After representing himself at trial, the D appealed a conviction of OWI, first offense, on the grounds that there was insufficient evidence to support the jury’s verdict, that the verdict was improper, and that the trial judge was biased. An officer observed the D’s vehicle with its left headlight out.After following the D, the officer stopped the D in an alley. Upon approaching the D’s vehicle, the officer noticed the odor of intoxicants and that the D’s speech was slightly slurred. The officer then administered three field sobriety tests, after which the officer concluded that the D was intoxicated and placed him under arrest. The defendant admitted to having 4 beers and two shots of vodka in a 2 hour period, and his BAC was .09 percent. | |
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June 11, 2003 |
02-3358 |
Holding: A conviction of OWI can still stand, even if BAC tests should have been suppressed due to a lack of an alternate test as a due process right, when there is evidence that still would have led to the OWI conviction. Overview: After pleading no contest to OWI, second offense, D appealed the denial of a motion to suppress evidence. The officer observed the D make a “burn out type” turn with squealing tires and fish tailing. Once stopped, the officer smelled a strong odor of intoxicants coming from the vehicle. The D had bloodshot and glazed over eyes and slurred speech.D failed one FST and there was no point in doing the others. D consented to a breath test, but argued that after the officer told him he was twice the legal limit, he lost all incentive to seek an alternate test. | |
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June 10, 2003 |
02-2340 |
Holding: For the purposes of counting prior offenses, out-of-state convictions are counted under the authority of Wisconsin Law and are not subject to any time limits of the jurisdictions where these previous convictions occurred. Overview: D appealed a judgment convicting him of OWI, fifth offense and the denial of a motion for plea withdrawal. The state charged the D with OWI, eleventh offense, and one count OWI-PAC.After denial of the D’s suppression motions, the D agreed to plead no contest. The court questioned the D as to his understanding of the plea agreement, to which the D expressed his understanding. There was a disagreement as to the number of prior convictions the D had, because two of these convictions occurred in another state. The court ultimately found that the D had been convicted on at least 4 prior occasions, and that this matter was to be regarded as the D’s fifth or subsequent offense. | |
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June 4, 2003 |
02-3006 |
Holding: A police officer’s testimony regarding the character of a D, when based on prior contacts with that D, is not considered improper bad character evidence. Overview: D appealed the denial of a motion for postconviction relief and a judgment of OAR, fleeing an officer, and obstruction. After observing a car go the wrong way down a one-way street, the officer attempted to make a traffic stop and pulled his squad car in position to block the driver’s door, once the car stopped in a parking lot. The occupants of the vehicle fled from the passenger side and were not apprehended, however, from previous contacts, the officer recognized the D as the driver of the vehicle. The D was later arrested when a traffic stop was conducted on a car in which he was a passenger. | |
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June 4, 2003 |
02-1894 |
Holding: A temporary stop is not considered illegal if it is based solely on a reasonable suspicion that an individual committed a non-criminal traffic offense. Overview: After pleading no contest to OWI, fifth or subsequent offense, D appealed the denial of a motion to suppress evidence. An officer heard the sound of a car crash, and believed her sergeant’s car had been hit, after which her sergeant reported that an accident had occurred behind him and that both vehicles were leaving the scene. Although, the officer observed no damage to the D’s vehicle and ultimately concluded that her sergeant’s vehicle was not hit, the officer observed only the D fleeing the scene. The officer then followed the D with her lights activated, and after two blocks, the D finally pulled over, at which time the officer made observations that led to the OWI arrest. | |
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May 29, 2003 |
02-3388 |
Holding: An officer not observing a D driving erratically or stumbling does not negate reasonable inferences of intoxication arising from other observations an officer may make. Overview: D appealed from a judgment convicting him of a third offense of OWI. After stopping the D for a faulty rear license plate light, the officer observed that the D had glassy eyes, slurred speech, and a strong odor of alcohol coming from him. Following administration of the field sobriety tests, the officer arrested the D. | |
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May 28, 2003 |
03-0239 |
Holding: An anonymous informant’s tip relied upon to stop a D’s vehicle, is not sufficient to establish reasonable suspicion to justify a stop, when the informant provides no legitimate basis to suspect that a D is involved in an illegal activity. Overview: The State appealed a judgment dismissing one count of third offense OWI, one count of OWI-PAC, and one count of OAR against the D. The officers received an anonymous tip reporting that the D’s truck was in a ditch and that the D was involved in suspicious activity.After identifying the truck and following it, the officer pulled the truck over. The officer observed no erratic driving or other traffic violations. Upon pulling the D over, the officer noticed an odor of intoxicants on the D, and after performing field sobriety tests and a preliminary breath test, arrested the defendant. | |
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May 28, 2003 |
02-2771 |
Holding: When a caller makes his or her identity known, the exposure enhances reliability enough to conclude that a stop is valid. Overview: D appealed the denial of a motion to suppress after pleading guilty to OWI. Two motorists, one anonymous, and one not, informed police dispatch that they observed the D operating his vehicle in an erratic manner.An officer located the D’s vehicle and the defendant was arrested. | |
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May 28, 2003 |
02-2359 |
Holding: An officer activating his emergency lights and walking to an individual’s vehicle is viewed as reasonable, when the individual’s vehicle is creating a potential traffic hazard, and therefore sufficient to establish a legal basis for the officer to approach the individual’s vehicle either under the community caretaker analysis, or under the reasonable suspicion requirement of investigatory stops. Overview: D appealed from a judgment convicting her of a second offense of OWI.D’s van was stopped in the road, creating a potential traffic hazard, when the officer activated his emergency lights and approached the van to see what was wrong. Prior to the van stopping in the road, the officer had observed the van weaving in and out of its lane on a number of occasions and for several blocks. | |
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May 28, 2003 |
2003 WI 47 |
Holding: The State must meet the burden of showing manifest necessity for termination of a trial, prior to the commencement of a new trial, in order to provide a D protection against double jeopardy. Overview: The State appealed a court of appeals decision reversing a judgment of conviction against the D.During opening statements, the State moved for a mistrial and claimed that defense counsel violated a pre-trial order barring the introduction of other acts evidence without first seeking a ruling on the admissibility of the evidence.The trial court granted a mistrial, however the court of appeals reversed and the supreme court affirmed the reversal. The final version of this opinion will appear in the bound volume of the official reports. | |
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May 15, 2003 |
02-2246 |
NGI of OWI, OAR and disorderly conduct - D appealed from a judgment convicting him, over NGI pleas, of a fifth offense of OWI, a second offense of OAR, and disorderly conduct. D also appealed from an order denying his postconviction motion for a new trial, claiming that the trial court failed to adequately consider his competency to stand trial, that he was denied a fair trial due to memory problems, and that he was denied effective assistance of counsel in several respects. The Court affirmed on the competency and fair trial issues and concluded that most of the errors trial counsel is alleged to have committed were nonprejudicial. However, it was persuaded that trial counsel's failure to obtain D's medical records and present them to the court-appointed psychiatrist who evaluated D may have allowed the jury to be misled on the question of whether D suffered from a mental defect. Therefore, the court reverses and remanded for retrial solely on the NGI issue. | |
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May 15, 2003 |
02-3092 |
Reasonable Suspicion - D appealed a judgment of the trial court finding her guilty of operating a motor vehicle while under the influence of an intoxicant as a first offense. D's argument on appeal was that the stop of her vehicle was not supported by reasonable suspicion and that, therefore, her motion to suppress evidence should have been granted. THe court disagreed and affirmed. | |
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May 8, 2003 |
02-1033 |
Constitutional Blood Draw - The State appealed the circuit's order suppressing blood draw evidence. The issue was whether the blood was taken in violation of the Fourth Amendment. The Court concluded that the blood draw was reasonable under the Fourth Amendment and therefore, reversed the circuit court's order suppressing the evidence. | |
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May 8, 2003 |
02-2834 |
Determination of Highway - D appealed judgments convicting him of third offense OAR and seventh offense OWI. Both charges resulted from D's late-night arrest while driving on a county park road which at the time of arrest was open only to park campers. The sole issue was whether the road qualified as a "highway" for purposes of the OWI and OAR statutes. The court concluded that the facts establish that the road was a "highway," and therefore affirmed. | |
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May 8, 2003 |
02-2992 |
Probable Cause - D appealed a judgment of the circuit finding him guilty of operating a motor vehicle while intoxicated. D argued that his motion to suppress evidence should have been granted because the arresting officer did not possess probable cause to believe that D was driving on a "highway" or road held out to the public. The Court agreed with D that the officer did not possess sufficient facts to support a belief that D was driving on a "highway" or road held out to the public and, therefore, reversed his conviction and remanded for further proceedings. | |
|
May 7, 2003 |
02-2997 |
Probable Cause - D appealed from a conviction for OWI as a third offense. He argued that the trial court erred in denying his motion to suppress evidence for lack of probable cause to arrest. The court rejected D's argument and affirmed the judgment. | |
|
May 6, 2003 |
02-2659 |
Probable Cause - D appealed a judgment of conviction for operating a motor vehicle while intoxicated. He argued the circuit court erred when it denied his suppression motion after determining the law enforcement officer had reasonable suspicion to stop him and that probable cause existed to administer the preliminary breath test. He also argued the court should be reversed because it applied the wrong standard regarding the level of proof necessary for the officer to administer the PBT. The Court rejected all of these arguments and affirm the judgment. | |
|
May 1, 2003 |
02-2499 |
Probable Cause - D appealed the judgment of conviction for operating with a prohibited alcohol concentration. He contended the trial court erred in denying his motion to suppress evidence based on lack of probable cause to arrest. The court affirmed. | |
|
May 1, 2003 |
02-3018 |
Probable Cause - D appealed the circuit court's order denying his motion to suppress evidence obtained from a preliminary breath test and the subsequent judgment of conviction for operating a motor vehicle while having a prohibited alcohol concentration. The Court concluded that the arresting officer had probable cause to believe D was operating a motor vehicle while intoxicated and appropriately requested a preliminary breath test, and because D consented to that test, it affirmed the judgment and order of the circuit court. | |
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April 30, 2003 |
02-2681 |
Unreasonable Force, Religious Objection - D appealed from a judgment of the trial court denying a motion to suppress the results of the analysis of a blood sample. D argued that the arresting officer used unreasonable force to secure the blood draw and that a forcible blood draw over religious objections is unconstitutional. Because the court found that the amount of force was not unreasonable under the circumstances and that D had not shown an honestly held religious conviction, it affirmed. | |
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April 29, 2003 |
02-2757 |
Penalty Enhancer, Waiver - D appealed a judgment convicting him of fifth offense drunk driving. He argued that three of his prior convictions should not have been used to enhance his sentence because his waiver of counsel in each of those cases was not knowing, intelligent and voluntary. The Court rejected these arguments and affirmed the judgment and order. For purposes of enhancing a subsequent sentence, an earlier conviction is invalid if the waiver of counsel was not knowing and voluntary. This case is governed by the test set out in Pickens v. State, therefore no colloquy was required and this court may examine the totality of the record to determine whether D's waiver of counsel was the result of a deliberate choice made with awareness of the difficulties and disadvantages of self-representation, the seriousness of the charges and the general range of possible penalties. The record establishes that D was aware of the general range of penalties for his 1993 convictions. | |
|
April 29, 2003 |
02-3052 |
Evidence Supression - D appealed a judgment of conviction following a no contest plea to one count of operating a motor vehicle while intoxicated, second offense. D argued the trial court erred by denying his motion to suppress evidence. The Court disagreed and affirmed the judgment. | |
|
April 24, 2003 |
02-2353 |
Supress Evidence - D appealed a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration as a second offense. He claimed the trial court erred in denying his motions to suppress evidence of the result of a blood alcohol test performed following his arrest. D conceded, however, that his claims of error lack merit under presently binding precedent. Accordingly, The court affirmed. | |
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April 24, 2003 |
02-2657 |
Reasonable suspicion - D appealed the judgment of conviction for operating a motor vehicle while under the influence of an intoxicant in violation of an ordinance adopting Wis. Stat. §346.63(1)(a). D contended the trial court erred in concluding that the arresting officer had reasonable suspicion to stop his vehicle. A vehicle that was traveling westbound on Highway 18 turned off the highway, driving directly toward the officer's squad car, came to a sudden stop, then turned around and pulled up next to the officer's car. Both the driver of the vehicle and a passenger told the officer to go after the car that just passed because they thought he was a drunk driver, since he was "all over the road." The trial court concluded that the information given by the two citizens, coupled with the officer's observations of D's vehicle within a minute, was sufficient to provide reasonable suspicion for the stop. Accordingly, the trial court denied D's motion to suppress evidence gathered after the stop. The court affirmed. | |
|
April 17, 2003 |
02-1665 |
Probable Cause - D appealed from a judgment of conviction for operating a motor vehicle while intoxicated claiming that the trial court erred when it denied her motion to suppress evidence. The court agreed with the trial court that there was probable cause for D's arrest. The officer testified that D appeared intoxicated, with a strong odor of intoxicants on her breath. She was having a difficult time standing up straight, was swaying back and forth, and her speech was slurred. Before the officer had a chance to ask D any questions, she blurted out, "You have got me, I did it." Accordingly, it affirmed the judgment of conviction. | |
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April 17, 2003 |
02-2569 |
Unconstitutional Coerced Consent - D appealed a judgment of the circuit court convicting him of operating a motor vehicle while under the influence of an intoxicant. D contended the implied consent law unconstitutionally coerced his consent to a blood draw and that the blood draw was an unreasonable search and seizure because alternative chemical breath test equipment of equal evidentiary value was available. D acknowledged that the court must reject his first challenge under State v. Wintlend and that we must reject his second challenge under State v. Krajewski. Still, D raised these issues due to the possibility that Krajewski or Wintlend might be overturned. However, since Tackett filed his brief-in-chief, the United States Supreme Court denied certiorari in Krajewski and the Wisconsin Supreme Court denied the petition for review in Wintlend. Judgment was affirmed. | |
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April 16, 2003 |
02-3058 |
20 minute observation - D raised what he claims was a "question of law heretofore unexamined in Wisconsin jurisprudence": What sanction, if any, should be imposed if an arresting officer fails to keep a drunk driving suspect under continuous observation for twenty minutes prior to the administration of a breath test? Because precedent binds us, the court rejected D's suggestion that "the test result ought to be stripped of its presumptions of automatic admissibility as the appropriate sanction, and that the prosecution ought to have an opportunity to rehabilitate the test result at trial through the use of expert testimony." Therefore, the court affirm. | |
|
April 16, 2003 |
02-2991 |
Ramifications of PAC acquittal - D was convicted by a jury of operating a motor vehicle while intoxicated. The jury acquitted D of a companion charge of operating with a prohibited alcohol concentration. D argued that because the jury found him not guilty of the PAC charge, the evidence was insufficient to support the conviction for OWI. The court rejected D's argument. It concluded that the evidence presented at trial, including the results of a breathalyzer test, was sufficient to support the OWI conviction. The court affirmed the judgment. | |
|
April 15, 2003 |
02-2547 |
Alternative test - D appealed a judgment entered on a jury's verdict convicting him of one count of second offense operating a motor vehicle with a prohibited blood alcohol concentration. D argued the trial court erred when it refused to suppress the results of his blood test because he requested, but was not given, an alternative test. The court found that D had not requested an alternative test. The trial court's conclusion was not clearly erroneous and the court therefore affirmed the judgment. | |
|
April 15, 2003 |
02-2553 |
Test refusal - D appealed an order revoking his operating privileges based on his refusal to submit to chemical testing. He argued that even though he stated he would not submit to testing, he did not refuse because he produced a piece of paper at the arrest scene stating he would submit to chemical testing. Although D argued he stated "yes, yes, yes" when read the Informing the Accused, review of the record shows that when directly asked more than once if he would submit, D stated he would not. The court therefore concluded that the trial court did not erroneously exercise its discretion by determining that D never agreed to take the test. Indeed, no sample of D's blood, breath or urine was ever taken. Any failure to submit to chemical testing constitutes a refusal. Consequently, the trial court was correct in its determination that D refused chemical testing. The court affirmed the order. | |
|
April 15, 2003 |
02-3188 |
Proper Waiver - D appealed a judgment entered on a no contest plea to operating while intoxicated. D sought to dismiss the penalty enhancer for his offense by collaterally attacking his waiver of counsel for one of his prior OWI convictions. The trial court determined the prior waiver was valid and denied the motion. The court concluded the trial court erred and therefore reversed and remanded the matter for resentencing. The court could not conclude that D's statements amounted to a valid waiver because nothing in the record revealed D understood the disadvantages and difficulties of representing himself. D understanding of rights does not show he understood the benefits of proceeding with counsel. Conseqeuently, the judgment was to be amended to reflect a conviction for OWI without considering D's 1993 conviction. Additionally, on remand the court must resentence D without considering that conviction. | |
|
April 15, 2003 |
02-1649 |
Ineffective assistance of counsel - D appealed an order denying motion to withdraw no contest plea or to modify his sentence by arguing that the circuit court erred by denying motion to withdraw no contest plea based upon claims of ineffective assistance of counsel. D also contended he is entitled to sentence modification because the sentence imposed exceeded the recommendation made pursuant to the plea agreement and is otherwise unduly harsh and excessive. The court rejected the arguments and affirmed the order. D was charged with homicide by intoxicated use of a motor vehicle and with a prohibited alcohol concentration and operating while intoxicated. | |
|
April 3, 2003 |
02-2755 |
Reasonable grounds for test refusal - D appealed from an order revoking his driver's license for one year for refusing to submit to chemical testing of his breath, pursuant to Wis. Stat. §343.305. The trial court found that D failed to prove by a preponderance of the evidence that his refusal to submit to the test was reasonable. The court agreed and therefore affirmed. An officer asked D if he would submit to an evidentiary chemical test of his breath and D answered "No." D did not state why he would not take the breath test, but offered to take a urine test. D testified that he was diagnosed with asthma in 1984 and that he declined the breath test because, given his asthma and decreased lung function, he did not believe the test would be accurate. D agreed that the State had shown that he had refused the breath test, he argued that his refusal was reasonable because his asthma made him physically unable to submit. The State countered that Martin had not demonstrated a physical inability to submit because his testimony merely speculated about his ability to give an adequate breath sample and he failed to tell the officers that he had asthma at the time of the refusal. The trial court found that Martin refused to submit to the breath test. The court further found that at the time of his refusal, Martin failed to mention his asthma, and his claims that he could not produce a sufficient breath sample were not supported by any medical testimony or documentation. D had not met the burden of proof required to establish physical inability to submit as an affirmative defense. | |
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April 3, 2003 |
02-2660 |
Substitution of judge, OMVWI a new action - D appealed an order denying his request for substitution of judge. He claimed the trial court erred in concluding that the request was untimely under Wis. Stat. §971.20(4). At the heart of the dispute in this appeal is the question of whether, for purposes of applying statutory deadlines for requesting judicial substitution, the State's criminal OMVWI prosecution is a new and separate action, or is simply a continuation of the Village of Stoddard's forfeiture action involving the same facts. Had this case remained a traffic forfeiture action, Davies's right to request a substitution would have expired seven days after the "initial appearance" on the citation. The court agreed with D and reversed the circuit court's order and remanded for further proceedings. | |
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April 3, 2003 |
02-2567 |
Supression of Evidence - D appealed the circuit court order denying his motion to suppress evidence obtained from a blood draw and his subsequent judgment of conviction for operating a motor vehicle while intoxicated. Because the court concluded that there was nothing in the arguments presented on appeal that bears on the circuit court's judgment of conviction for a violation of §346.63(1)(a), it affirmed the judgment of the circuit court. | |
|
April 2, 2003 |
02-2856 |
Waiver of a speedy trial via guilty plea - D appealed from a forfeiture judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC) as a fourth offense. D argued that the State violated his constitutional right to a speedy trial. The trial court rejected this motion despite finding that D had been prejudiced by the delay and that the State had not offered an adequate explanation for the nearly one-year interval between the date of the offense and the date of the charging. However, the court concluded that by entering a guilty plea, D has waived the right to argue that he was denied his constitutional right to a speedy trial. On that basis, the court affirmed the judgment. | |
|
April 1, 2003 |
02-1647 |
Homicide, improper argument, discovery - D appealed a judgment convicting him of two counts of homicide by intoxicated use of a vehicle. He argued that: he was denied a fair trial because a prospective juror said during voir dire that it was not D's first-offense and the trial court's instruction did not adequately cure the resulting prejudice; the court prejudicially erred when it excluded D's prior consistent statements that the victims' headlights were not on; the court improperly exercised its discretion when it allowed testimony regarding a mid-trial inspection of the victims' headlights without the prosecution establishing a chain of custody; the prosecutor's closing argument deprived D of a fair trial by misrepresenting the defense; and the interest of justice requires a new trial because the mid-trial discovery and disclosure of the headlights prevented the case from being fully tried and undermined D's rights to prepare a defense, to effective counsel and to knowingly enter a plea. The court rejected these arguments and affirmed the judgment. | |
|
April 1, 2003 |
02-2813 |
Reasonable suspicion - D appealed a judgment convicting him of operating after revocation and operating with a prohibited alcohol content. D argued that the trial court erred by denying his suppression motion based on the unlawfulness of the stop of the car he was driving. An officer must rely on articulable facts, not just conclusions. When a stop involves information from an informant or collective knowledge of the police department, the State is not relieved of its burden. Somewhere along the way it must present facts, not just conclusions, to support a reasonable suspicion to stop. The court agreed with D that the record at the suppression hearing did not show that there was a reasonable suspicion that D was driving while intoxicated. The court reversed the judgment. | |
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March 27, 2003 |
02-1540-CR |
Supression , reasonable suspicion - The State appealed an order granting D's motion to suppress evidence gathered during a traffic stop. The court concluded that the suppression motion was properly granted and affirmed the decision. D was a passenger in a car that was pulled over for not having its headlights on after dark. The driver of the car consented to have the car searched. After observing D standing around taking his hands in and out of his pockets during the traffic stop, one of the officers decided to do a protective pat down search for weapons and discovered marijuana in D's pocket. A search incident to arrest revealed more marijuana in D's jacket. | |
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March 27, 2003 |
02-2370 |
Refusal, Revocation - D appealed an order of the circuit court revoking his driver's license for failure to submit to a test for intoxication. D contended the implied consent law unconstitutionally penalized him for electing his right to refuse consent to a search and seizure of his person. Therefore, the circuit court should have dismissed the refusal hearing in this case. D was arrested for driving while under the influence of an intoxicant. The arresting officer read an "Informing the Accused" form and D refused to submit to an evidentiary chemical test of his breath. D was then served with a notice warning him that his operating privileges would be revoked. The court disagreed with D and affirmed the decision. | |
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March 26, 2003 |
02-1469-CR |
Supression - The State appealed from an order granting D's motion to suppress evidence obtained during a routine traffic stop. The State argued that the arresting officer had reasonable suspicion to make the traffic stop and thus the suppression motion should have been denied. Racine County Deputy Sheriff conducted a traffic stop of D's car; as a result of this stop, D was charged with operating a motor vehicle while intoxicated, operating a motor vehicle with a prohibited blood alcohol concentration, possession of drug paraphernalia and possession of THC. D filed a motion to suppress all evidence seized as a result of the stop and his arrest, arguing that the traffic stop was without legal justification. The court disagreed with D and affirmed. | |
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March 26, 2003 |
02-3111-FT |
Probable Cause - D appealed from a forfeiture judgment of conviction for operating a motor vehicle while intoxicated and contended that the trial court afforded too much weight to the preliminary breath test (PBT) results in determining the existence of probable cause. The court concluded, based on Wis. Stat. §343.303 and the supreme court's holding in County of Jefferson v. Renz, that the trial court properly considered the PBT results in determining probable cause to arrest. The court further concluded that the trial court's determination of probable cause rested on the totality of the circumstances and not exclusively on the PBT results. The court affirmed the decision. | |
|
March 25, 2003 |
01-2591 |
Vacation of Order - The court vacated the order granting certification and remanded to the court of appeals. | |
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March 20, 2003 |
02-2787-CR |
Supression - D appealed from a judgment of conviction for operating while intoxicated in violation of Wis. Stat. §§346.63(1)(a) and 346.65(2)(b). He contended that the trial court erred when it denied his motions to suppress the results the blood draw taken incident to his arrest. Officer Janda stopped D's vehicle for speeding. While the officer was talking to D, he noticed that D's eyes were bloodshot, his speech was slurred, and there was a strong odor of intoxicants on his breath. D failed field sobriety tests and a preliminary breath test reading was .16 percent. The court affirmed the decision. | |
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March 20, 2003 |
02-2668-CR |
Implied Consent - D appealed the judgment of conviction for driving while intoxicated in violation of Wis. Stat. §346.63(1)(a). The court rejected his challenges to the admissibility of the results of the chemical test performed on his blood and his constitutional challenge to Wis. Stat. §343.305, the implied consent statute. It affirmed the judgment and order. | |
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March 20, 2003 |
02-2573-CR |
Constitutional Challenge - D appealed the judgment of conviction for driving while intoxicated in violation of Wis. Stat. §346.63(1)(a). The court rejected his challenges to the admissibility of the results of the chemical test performed on his blood and his constitutional challenge to Wis. Stat. §343.305, the implied consent statute. It affirmed the judgment and order. | |
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March 20, 2003 |
02-2579-CR |
Supression - D appealed from a judgment of conviction for a violation of Wis. Stat. §346.63(1)(a), operating while intoxicated. He asserted that the trial court erred when it denied his motions to suppress the results the blood draw taken incident to his arrest. The court affirmed the decision. | |
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March 20, 2003 |
02-2023-CR |
Fourth Amendment - D appealed from a judgment of conviction for operating while intoxicated, a violation of Wis. Stat. §346.63(1)(a). He asserted that the trial court erred when it denied his motions to suppress the results of the blood draw taken incident to his arrest. The court affirmed the decision. D's first issue, that the blood draw was a warrantless seizure in violation of the Fourth Amendment, was controlled by the holdings in Krajewski, and State v. Thorstad. Next, D argued that implied consent statute is unconstitutional because it violates the Fourth Amendment's protections against coerced consent to a search. The statute requires an individual arrested for OWI to make the Hobson's choice of submitting to a blood draw or immediately losing his or her driving privileges. Finally, D's remaining contention, that the chemical analysis of his blood after it was drawn constitutes a second warrantless search not meeting the exigent circumstances exception to the Fourth Amendment, is unavailing. | |
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March 13, 2003 |
02-1959-CR |
Resisting arrest, Supression - D appealed from a judgment of conviction for two counts of resisting or obstructing an officer, contrary to Wis. Stat. §946.41(1). D moved to suppress all evidence derived from the officer's conduct, claiming that the seizure was not justified by the community caretaker function, nor was there probable cause to arrest him. After hearing testimony from Officer Parr, the trial court denied the motion to suppress. It held that the officers reasonably made contact with D when he fled upon seeing them, that the circumstances warranted further inquiry under the community caretaker function, and there was probable cause to arrest when Leggions began resisting and making movements that could be interpreted as threatening. The court affirmed the decision. | |
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March 13, 2003 |
02-2792-CR |
Supression - D appealed the circuit court order denying his motion to suppress evidence obtained from a blood draw and his subsequent judgment of conviction for operating a motor vehicle while intoxicated (OMVWI), contrary to Wis. Stat. §346.63(1)(a), third offense. Because the court concluded that there is nothing in the arguments presented in the appeal that bears on the circuit court's judgment of conviction for a violation of §346.63(1)(a), it affirmed the judgment of the circuit court. | |
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March 11, 2003 |
02-2362 |
Supression, Reasonable suspision - The State appealed an order suppressing evidence. The court determined that there was no reasonable basis to stop D's vehicle and therefore the stop was unlawful. The court concluded there was reasonable basis for the stop and it reversed the order. | |
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March 6, 2003 |
02-0746-CR |
Reasonable opportunity for testing - D appealed his conviction for a fifth or subsequent offense of operating a motor vehicle while intoxicated. He claims that his statutory right to have an additional chemical blood alcohol test was violated. The court disagreed and affirmed the decision. D contended that he was denied a "reasonable opportunity" to arrange for the administration of an additional blood test by his lack of access to a phone from which he could make non-collect calls. Theo court disagreed. First, D was provided the option of being taken to another hospital of his choice, and he refused. Next, he was provided with access to a phone book and a phone from which he could make collect calls. He did not testify that he attempted unsuccessfully to do so, or that he ever informed staff that the phone provided was inadequate for his needs. The court was satisfied the officers provided D a reasonable opportunity to make his own arrangements. | |
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March 5, 2003 |
02-2084-CR |
Prejudice, evidence - D was convicted by jury of operating a vehicle while intoxicated. A major part of the State's evidence was a blood test showing D's blood alcohol level to have been .175%. D's defense was that the blood tested was not his blood and the chain of evidence was lacking to prove otherwise. He objected that the test results were inadmissible, an objection which the trial court overruled. Towards the end of the trial, the expert allowed as how a second test of D's blood had been conducted, this test culminating in a .164% reading. On appeal, D claimed that he did not know about the second test-thus violating discovery rules, that it never should have been mentioned to the jury and that it prejudiced his case because, had he known of the second test, he would have provided a different defense. Because D did not convinced the court that he was prejudiced, it affirmed. | |
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March 4, 2003 |
02-2678-CR |
Sentence Discretion - D appealed from a judgment entered after he pled guilty to operating a motor vehicle while intoxicated (fifth offense), contrary to Wis. Stat. §346.63(1)(a) (1999-2000). He also appeals from an order denying his postconviction motion seeking sentence modification. D claimed the sentence imposed was unduly harsh and excessive. Because the trial court did not erroneously exercise its sentencing discretion when it imposed sentence, the court affirmed. | |
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March 4, 2003 |
02-2687-CR |
Reasonable suspicion, Supression - D appealed an order denying his motion to suppress evidence and a judgment of conviction for resisting or obstructing an officer, contrary to Wis. Stat. §946.41(1). D contended that the officer he encountered lacked reasonable suspicion to detain and question him. The court disagreed and it affirmed the trial court's judgment and order. | |
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March 4, 2003 |
01-1051-CR |
Penalty enhancement - D sought review of an unpublished court of appeals decision, affirming a judgment of conviction and sentence for operating while intoxicated (OWI), third offense. D asked the court to determine whether Wis.Stat.§939.62 (1999-2000) was properly applied to an already enhanced OWI offense under Wis. Stat. §346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance D's penalty twice for count one of his judgment of conviction. The court answered in the affirmative and concluded that a defendant convicted of the crime of second-or subsequent-offense OWI is subject to the penalty enhancements provided for in both §§346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions | |
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February 27, 2003 |
02-1594-CR |
Pleas, Assistance of Counsel - D appealed the judgment of conviction for driving while intoxicated in violation of Wis. Stat. §346.63(1)(a), and the order denying his motion for postconviction relief. D contended that his plea of guilty to the charge was not entered knowingly, voluntarily, and intelligently. He also contended his trial counsel did not provide effective assistance of counsel because counsel failed to inform him of a viable defense to the allegation that he refused to submit to a chemical test under Wisconsin's Applied Consent Statute and pressured him into pleading guilty. The court concluded that there is no merit to these arguments and affirmed. | |
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February 27, 2003 |
02-0104 |
Implied consent - D appealed the judgment of conviction for driving while intoxicated in violation of Wis. Stat. §346.63(1)(a), and the court order suspending his license on the ground that he had refused to submit to a chemical test pursuant to Wis. Stat. §343.305, the implied consent statute. The court rejected his challenges to the admissibility of the results of the chemical test performed on his blood and his constitutional challenge to the implied consent statute. The court affirmed the judgment and order. | |
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February 27, 2003 |
02-1188 |
Constitutionality of chemical testing - D appealed an order which revoked her motor vehicle operating privilege on account of her refusal to submit to chemical testing for alcohol concentration pursuant to Wis. Stat. §343.305. D claimed the revocation order must be set aside because the imposition of statutory penalties for refusing to submit to chemical testing is a "facial violation of the Fourth and Fourteenth Amendments." The court disagreed and affirmed. | |
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February 20, 2003 |
02-1914 |
Evidence - D appealed a judgment of the circuit court finding him guilty of operating a motor vehicle while under the influence of an intoxicant as a first offense. D argued that his conviction should be overturned because the result of his blood test should have been suppressed because the arresting officer did not comply with his request for an alternative test, and the trial court erroneously exercised its discretion in excluding the result of his preliminary breath test. The court disagreed with both arguments and affirmed the decision. | |
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February 20, 2003 |
02-2349-CR |
Evidence - D appealed a judgment of conviction for operating a motor vehicle while intoxicated . Because the ourt concluded that there was nothing in the arguments presented in the appeal that bears on the circuit court's judgment of conviction for a violation of §346.63(1)(a), it affirmed the judgment of the circuit court. D moved to suppress the results of the blood test. The court denied his motion, and he pled no contest to OMVWI based on the facts in the criminal complaint. | |
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February 19, 2003 |
02-2334-CR |
Evidence - D appealed a judgment convicting him of possession of cocaine and possession of THC. He argued that the trial court erred by denying his suppression motion because evidence was obtained after an illegal stop. On November 24, 2000, an officer stopped D because he believed D did not have a driver's license. D was in possession of a metal pipe with marijuana residue on it, as well as marijuana and cocaine. As a result, D was charged with possession of THC and possession of cocaine. The court disagreed and affirmed the judgment. | |
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February 13, 2003 |
02-1899 |
Refusal - D appealed a circuit court order revoking his driver's license and argued that the circuit court erroneously exercised its discretion when it denied a request for a continuance of the refusal hearing and subsequently found that his refusal to submit to a chemical test for intoxication was unreasonable. The court concluded that the record is inadequate to uphold the circuit court's finding that D's refusal was improper, it reversed the circuit court's revocation order and remanded for further proceedings. | |
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February 12, 2003 |
02-2206-CR |
Reasonable suspicion - The State of Wisconsin appeals from the circuit court's suppression order finding that the arresting officer lacked "the requisite reasonable suspicion of a violation under the circumstances to stop the vehicle." While the court agreed with the circuit court that the weather conditions provided an innocent explanation for D's erratic driving, the court reversed because a police officer does not have to rule out innocent explanations for a defendant's conduct before conducting a traffic stop. | |
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February 11, 2003 |
02-0943-CR |
Time and good cause requirements - The State of Wisconsin appealed from an order dismissing a count of operating a motor vehicle with a prohibited alcohol concentration of .1% or more and a suppression of all breath alcohol test evidence in the case. The State argued that the trial court erred when it ordered inspection and testing of the Breathalyzer device because the D failed to timely make the discovery request and failed to show good cause. Because the court concluded that the trial court erred when it declined to enforce the time and good cause requirements set forth in Wis. Stat. §345.421 (1999-2000), the order was reversed and cause remanded for further proceedings consistent with the opinion. | |
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February 6, 2003 |
02-0583-CR |
Jurisdiction, reasonable suspicion - D appealed a judgment of the circuit court finding him guilty of operating a motor vehicle while intoxicated. D argued that the evidence obtained pursuant to an investigatory stop by a police officer should have been suppressed because the stop occurred outside the officer's jurisdiction and the officer had no authority to conduct the stop. D also argued that the results of his blood test should have been suppressed because D asked for, but did not receive, an alternative breath test and because the officer failed to properly inform D of his right to request an alternative test. The court disagreed and affirmed. | |
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February 5, 2003 |
02-1691 |
Implied Consent - D appealed from an order revoking his driving privileges for refusing to submit to a chemical test pursuant to the implied consent law. D contended that the statute unconstitutionally coerces consent by threatening the revocation of the suspect's driving privileges. The court recently rejected this very argument in State v. Wintlend. The court affirmed on the basis of Wintlend. | |
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February 4, 2003 |
02-1153 & 02-1154 |
Representation, Power of Attorney - D appealed the trial court's failure to decide his motion to reopen his operating while intoxicated case. D also appeals, in his operating after suspension case, the trial court's denial of his motion based on the court's refusal to permit his father to act as his attorney at his motion to reopen. In both cases D appealed the orders denying his motions seeking an indigency hearing pursuant to Wis. Stat. §800.095 (1999-2000). The court affirmed in part and remanded with directions. | |
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January 30, 2003 |
01-2988-CR |
Reasonable Suspicion, Probable Cause - D appealed a judgment of the circuit court convicting him of homicide by use of a vehicle while having a prohibited alcohol concentration. D argued that the results of his blood test should have been suppressed because (1)neither probable cause of a civil traffic violation, nor reasonable suspicion of a crime, supported the initial investigative detention of Colstad; (2) the initial detention was not temporary, but was instead an illegal de facto arrest; (3) the facts known to the investigating officer did not provide reasonable suspicion of intoxication and, therefore, D should not have been subjected to field sobriety tests; and (4) the results of the preliminary breath test should not have been considered by the trial court when assessing whether probable cause supported both D's arrest and the subsequent blood draw. The court disagreed with each of D's arguments and affirmed. | |
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January 30, 2003 |
02-2132 |
Evidence - D was found guilty of violating Village of Oregon ordinances that adopted Wis. Stat. §346.63(1)(a) and (b). D appealed the decision reversing the municipal court's finding that the officer read D the "Informing the Accused" form after the intoximeter test was administered to him. D contended the circuit court erred in substituting its judgment for the trier of fact on an issue of credibility. The court concluded the trial court correctly determined that the municipal court's finding was clearly erroneous. Accordingly, the court affirmed the circuit court's decision and the judgment entered by the municipal court following remand by the circuit court. | |
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January 30, 2003 |
02-1669 |
Expert testimony - D appealed an order of the circuit court convicting him of operating a motor vehicle while under the influence of intoxicants. D argued that the evidence was insufficient to sustain his conviction and expert testimony expressing the opinion that persons with a blood or breath alcohol content (BAC) greater than .08 are unfit to drive was erroneously admitted. D's fiancée and one of his friends, both of whom had seen him on the night of the accident, testified that D was not drunk. In addition, D's friend testified that the intersection at the scene of the accident was confusing, and D's fiancée testified that D was unfamiliar with that intersection. The court disagreed and affirmed. | |
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January 30, 2003 |
02-1365-CR |
Implied consent, constitutionality - D appealed a judgment convicting her of operating a motor vehicle under the influence of an intoxicant. D claimed the trial court erred in denying her motions to suppress evidence of the result of a blood test administered following her arrest. Specifically, D argued that police may not constitutionally request a blood sample from an OMVWI arrestee when a breath test of "equal evidentiary value" was readily available, and Wisconsin's "implied consent" law is unconstitutional because it is impermissibly coercive. Because the issues D raised have been conclusively decided adversely to her in precedents that are binding on the court, the court rejected D's arguments and affirmed the appealed judgment. | |
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January 30, 2003 |
02-1362-CR |
Constitutionality, warrant - D appealed a judgment of the circuit court finding him guilty of operating a motor vehicle while intoxicated. D argued that evidence obtained from a blood draw taken after his arrest should have been suppressed for two reasons: his consent was involuntary because the implied consent law unconstitutionally coerces consent, and without consent, a search warrant was needed to analyze his blood sample. Th court disagrees and affirmed. | |
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January 30, 2003 |
02-2061-CR |
Constitutionality - D appealed the judgment of conviction for driving while intoxicated. D was lawfully arrested based on probable cause. The officer read her the "Informing the Accused" form and asked if she would submit to an evidentiary chemical test of her blood. D answered yes and submitted to the blood draw. An analysis of her blood disclosed an alcohol concentration of .186 grams per 100 millimeters of blood. D moved to suppress those results, raising a number of constitutional issues, and the trial court denied the motions. D contends the analysis of her blood is a separate search that requires a justification under the Fourth Amendment separate from that for the seizure of her blood, and exigent circumstances do not justify the analysis of her blood once it has been drawn. Her consent does not make that search constitutional, D asserts, because her consent was not voluntary, and the implied consent statute is unconstitutional because it forces a person to choose between abandoning the Fourth Amendment protection against unreasonable searches and seizures, on the one hand, and suffering the sanctions of lost driving privileges on the other. The court rejected her challenges to the admissibility of the results of the chemical test performed on her blood and affirm the judgment. | |
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January 30, 2003 |
02-1984-CR |
Statutory Definition, Sufficient evidence - D appealed from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant and from an order denying his postconviction motions. The issues were whether the evidence was sufficient to convict him and whether he was entitled to a new trial in the interest of justice. The court concluded that the evidence was sufficient and that D was not entitled to a new trial in the interest of justice. Accordingly, the court affirmed the decision. | |
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January 29, 2003 |
02-1946-CR |
Reasonable Suspicion - D was found guilty by a jury of operating a motor vehicle while intoxicated. D raised three issues: Whether the pretrial motion to suppress should have been granted on grounds that the officer had no reasonable suspicion to stop him, Whether the trial court erred when ruling that an "automatic admissibility" issue should be resolved at trial rather than by pretrial motion, and Whether the trial court erroneously exercised its discretion by permitting the State to cross-examine his expert witness about a threat the witness allegedly made to a co-worker when the expert was employed by the Chemical Test Section of the Wisconsin State Patrol. After addressing each issue the court affirmed. | |
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January 29, 2003 |
02-1545 |
Right to Counsel - In State v. Reitter the WI 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 implied consent setting. However, the court also appears to have held that, as a matter of due process, if an officer either explicitly assures or implicitly suggests that a custodial defendant has a right to counsel, then the officer may not thereafter mark down a refusal if the defendant acts upon that assurance or suggestion. The defendant claims that the officer, by his actions, at least implicitly suggested that D had the right to consult with an attorney before deciding whether to submit to a breath test. D further contends that the officer then marked him down as having refused because he insisted on consulting with his attorney first. The court did not agree that the officer implicitly suggested a right to counsel before taking the test. | |
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January 28, 2003 |
02-2300-CR |
Refusal, Speedy trial - D appealed a judgment of conviction for operating while intoxicated and claimed his right to a speedy trial was violated and that his blood was drawn unconstitutionally. D refused a blood test, requesting a breath test instead, and was issued a Notice of Intent to Revoke his operating privileges. He was also cited for a prohibited alcohol concentration after his blood was processed. In determining the right to a speedy trial, the court considered four factors: the length of the delay; the reason for the delay and whether the State or the defendant is more to blame; whether the defendant asserted his right to a speedy trial; and whether the delay resulted in prejudice to the defendant. The court rejected his arguments and affirm the judgment. | |
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January 22, 2003 |
02-1879-CR |
Supression, Reasonable suspicion - D appealed from a judgment of conviction for obstructing an officer as a repeat offender contrary to Wis. Stat. §§946.41(1) and 939.62(1)(a). D contended that the trial court erred in denying his motion to suppress evidence because the arresting officer did not have reasonable suspicion to justify an investigatory stop pursuant to Wis. Stat. §968.24 and Terry v. Ohio, 392 U.S. 1, 22 (1968). The court agreed with D and it reversed the judgment and remanded for further proceedings. | |
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January 23, 2003 |
02-1654 |
Implied consent - D appealed his conviction for operating a motor vehicle while intoxicated, argueing that Wis. Stat. §343.305(2), Wisconsin's "implied consent" law, is unconstitutional because it coerces consent to a chemical "search" for intoxicants of blood drawn pursuant to an arrest for drunk driving. The court concluded that any pressure employed by the statute to obtain consent is reasonable and does not violate Fourth Amendment protections. Accordingly, it affirmed the circuit court's judgment of conviction. | |
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January 22, 2003 |
02-2209 |
Statutory designation - D appealed a judgment of conviction of operating a motor vehicle with a prohibited alcohol concentration. He claimed the trial court erred by admitting blood test results because a laboratory assistant withdrew D's blood in violation of Wis. Stat. §343.305(5)(b). D contended that the laboratory assistant was not one of the people designated by the statute. The Court disagreed and affirmed. | |
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January 16, 2003 |
01-3367-CR |
Suppression, probable cause - D appealed judgments of the circuit court convicting her of homicide by intoxicated use of a vehicle and causing injury by intoxicated operation of a vehicle. D argued that her suppression motion should have been granted because police obtained a blood sample from her in violation of the requirements set forth in State v. Bohling and complains that the blood draw was invalid because it was drawn without consent and without a warrant before she was arrested, and police did not have probable cause to arrest her for a drunk-driving violation or crime. The court affirmed the circuit court. | |
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January 15, 2003 |
02-1592-CR |
Remand hearing - D appealed from a judgment of conviction for operating a motor vehicle while intoxicated which was reinstated following a remand hearing. D argued that his rights were violated because he did not get an "adequate and meaningful" remand hearing given that the trial court did not consider the issues D raised regarding "Double Jeopardy, confrontation, discovery violations, and the conflicting testimony given on remand as compared to what the jury was told." The court disagreed. The judgment was affirmed. | |
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January 14, 2003 |
02-2021 |
Refusal - D appealed an order revoking his operating privileges because of his refusal to submit to chemical testing after his arrest for operating while under the influence. The circuit court concluded D had no basis to refuse to consent to the blood test. The court also rejected his argument the implied consent statute is unconstitutional because it imposes punishment for refusing to consent to testing. D made the same argument on appeal. The court determined this issue is governed by State v. Wintlend and affirmed the circuit court's order. | |
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January 14, 2003 |
02-2154-CR |
Probable Cause - D appealed a judgment of conviction entered on his guilty plea to one count of operating while intoxicated and an order denying a motion to suppress evidence. D argued that the sheriff's deputy lacked probable cause to arrest him. The deputy noted a strong smell of alcohol coming from D at a distance of two to three feet. The deputy also noted that he had difficulty understanding Rooni's slurred speech. D admitted he had been drinking that night, leaving a tavern at 2:30 a.m. The court disagreed with D and affirmed the judgment and order. | |
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January 7, 2003 |
02-2163-CR |
Fresh Pursuit - D appealed a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant. D argued that the stop was illegal because there was no fresh pursuit to justify the stop, which occurred outside the officer's jurisdiction and the stop was not justified under Wis. Stat. §349.03(4), which allows an officer to enforce an OWI violation outside the officer's jurisdiction. As a result, D argued that evidence obtained as a result of the traffic stop should have been suppressed. The concluded the stop was authorized under §349.03(4). Therefore it affirmed the judgment. |
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