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November 9, 2005
Case No: 2005AP690-CR
Issue: Constitutionality of Per Se Drug Laws at set forth in
Holding: The court of appeals upheld the per se ban on operating a
motor vehicle with a detectable amount of a restricted controlled substance in
one's blood, as set out in Wis. Stat. 346.63(1)(am).
Smet moved to dismiss the complaint on the grounds that Wis. Stat.
346.63(1)(am) is unconstitutional because it exceeds the legislature's police
power and violates his rights to due process, fundamental fairness, and equal
protection. The trial court rejected his arguments, and Smet was ultimately
found guilty. He appeals from the
resulting judgment of conviction.
Smet argues that
The court of appeals upheld the trial courts ruling, explaining that regulating the safety of Wisconsin roadways is a proper exercise of the police power, and that 346.63(1)(am) bears a reasonable and rational relationship to that goal and is not fundamentally unfair; therefore, there was no due process violation. The court also held that 346.63(1)(am) does not offend principles of equal protection because Smet did not establish that the statute either interfered with a fundamental right or operated to the peculiar disadvantage of a suspect class.
June 30, 2005
Case No: 2004AP102-CR
Issue: Request for alternative chemical test at agency expense under Wis. Stat. 343.305(5)(a)
Where police have informed an OWI suspect of his or her right to an alternative test at agency expense and provided ample opportunity for the suspect to make the request, if the suspect does not make the request until after leaving police custody, it is not a request within the meaning of § 343.305(5)(a), and police need not provide the alternative test.
In January 2003, Fahey was stopped for speeding. After observing several indicia of intoxication, the officer arrested him for OWI and read him the Informing the Accused form, informing him that if he would submit to the chemical test requested by the police, he had the right to take an alternative test provided by the agency free of charge. Fahey did not request an alternative test while in police custody, but instead returned and requested an alternative test 15 minutes after being released. The police refused his request. Subsequently, Fahey moved to suppress the results of his breathalyzer test, alleging that the officer failed to comply with his request for an alternative test. The circuit court denied the motion, reasoning that Fahey did not make a request within the meaning of the statute.
The implied consent statutes do not define a request for an alternative test at agency expense. In interpreting 343.305(5)(a), the court concluded that the legislature did not mean to impose a requirement that police honor all such requests no matter what the circumstances, nor to hold open the time periods for a request beyond when a suspect is released from custody.
The court notes that this holding does not require police to honor
all requests made while a suspect remains in custody. Neither
does the holding prevent suspects from obtaining an alternative test at
their own expense.
Date: May 17, 2005
Case No: 2004AP1957-CR
Issue: Exclusionary Rule
Holding: Although Washington took a few steps backwards after police ordered him to stop, he did not flee; therefore, he was seized. Because the stop was without reasonable suspicion, the evidence obtained thereafter should have been excluded.
A citizen complained that people were loitering and selling drugs at particular house. Two officers investigated. They saw Washington in front of the house and ordered him to stop. He stopped, but then took a few steps backward and allegedly seemed ready to flee. He threw his hands up, and a towel flew out. The officers subdued him; one retrieved the towel and discovered a baggie of cocaine wrapped in it.
The State charged Washington with possession with intent to deliver. He moved to suppress, arguing that the officers lacked reasonable suspicion for the stop. The trial court agreed that the officers lacked reasonable suspicion, but it denied the motion, finding that under California v. Hodari D., 499 U.S. 621 (1991), Washington was not seized when he discarded the drugs, because fled by walking backwards rather than yielding to the officers show of authority. Washington pled guilty and later filed a post-conviction motion for reconsideration, which the trial court denied. Washington appealed.
Washington was effectively seized when, in response to the officers order, he stopped walking to wherever he was going. Although he took a few steps backwards, his actions did not constitute flight. Further, the stop was unreasonable because while one officer testified that he was going to cite Washington for loitering, he did not demonstrate a reasonable, articulable basis for doing so. The court explained, People, even convicted felons, have a right to walk down the street without being subjected to unjustified police stops. P.17.
Date: March 9, 2005
Case No: 04-1093-CR
Issue: Breach of plea agreement; prosecutorial sentence recommendations
The State did not breach the plea agreement by inadvertently misstating its sentencing recommendation, when it corrected the mistake shortly afterward. Further, the State did not breach the agreement by recommending a consecutive sentence when the agreement had not addressed whether State would recommend a consecutive or concurrent sentence.
D claimed IAC because counsel failed to object to the States alleged breach. Court held that counsel could not be deficient because State did not breach the agreement. State charged D with OWI 6th, PAC, and OAR. D pled NC to the OWI, in exchange for dismissal of the PAC and OAR. State agreed to recommend 2 years in, 3 years out.
At sentencing, State mistakenly recommended 2.5 years in, 2.5 year out. Counsel did not object. D pointed out States mistake, and State amended its recommendation to 2 years in, 3 years out. State also recommended that the sentence be consecutive to the sentence D was serving for another case. Court imposed 3 years in, two years out, consecutive.
D moved for resentencing, arguing that the State breached the agreement by making the wrong recommendation and by recommending a consecutive sentence, and that defense counsels failure to object constituted IAC. The trial court denied the motion, and D appealed.
The Court concluded that the States
misstatement was not a breach because the misstatement was promptly
corrected and was not an attempt to undercut the substance of the
agreement. Further, the agreement did not specify whether the
State was to recommend consecutive or concurrent sentences, so its
recommendation for a consecutive one was not a breach.
Date: January 12, 2005
Case No: 04-1871
Issue: Reliability of field sobriety tests; admissiblity vs. weight; relevant evidence
Holding: The trial court properly admitted the results of Wilkens field sobriety tests (FSTs), because the reliability of such tests would go to the weight of the evidence, not its admissibility.
An officer stopped Wilkens for speeding and noticed that he had red, glassy eyes, smelled of alcohol, and slurred his speech. The officer asked Wilkens to perform certain FSTs, and Wilkens failed them. The subsequent PBT and blood draw showed blood alcohol concentrations of .13 percent and .19 percent, respectively.
At his trial for driving with a PAC, Wilkens moved to suppress the FSTs on the ground that because they are scientific tests, their results could not be admitted because the trial court had not made a finding of reliability. Because the FSTs were unreliable, Wilkens argued, the officer did not have probable cause to request a PBT; therefore, the trial court should have suppressed the PBT and the fruits of the subsequent arrest; namely the result of the blood draw. The trial court denied Wilkens motion, and he was convicted.
The court held that FSTs are not scientific tests because their usefulness is based on a subjective evaluation of the subjects performance by the administering officer. Further, even if FSTs were scientific evidence, the trial court correctly admitted them without a finding of reliability, because in Wisconsin the reliability of a scientific test goes to its weight, not its admissibility.
In Wisconsin, evidence is generally admissible if it is relevant;
evidence is relevant when it has any tendency to make the existence of
any material fact more or less probable than it would be without the
evidence. In this case, the Wilkens failure to successfully
complete the FSTs made his intoxication more probable than it would
have been if he had completed the FSTs successfully, so the FST results
were relevant in the probable cause analysis.
State v. Matke, 2005 WI App 4
Date: Dec. 9, 2004
Case No: 03-2278-CR
Issue: Prior convictions, OWI penalty enhancement
Holding: The number of prior OWI convictions for purposes of penalty enhancement should depend upon the number of prior convictions a defendant has at the time of sentencing, not at the time the offense was committed.
The penalty statute for OWI offenses provides that repeat OWI offenders will receive greater penalties with each subsequent offense. Matke committed his fourth OWI on June 19, 2001. Before sentencing, he committed and was convicted for two more OWIs, and the court sentenced him as a six-time offender for the June 19 offense. Matke appealed, claiming he should have been sentenced as a four-time offender.
The court looked to the Wisconsin Supreme Courts decision
in State v. Banks, 105 Wis.2d. 32, 313 N.W.2d
67 (1981), for the conclusion that enhanced penalties apply to OWI convictions
regardless of the order in which the offenses were committed or when the convictions
were entered. The court further explained that while Matke had relied on certain
case law providing that PAC sentence enhancements are contingent upon prior
convictions having been in existence at the time of the current offense, those
cases do not apply to sentencing for OWI offenses because [t]he statute
under review is § 346.65(23), a penalty enhancement statute, not Wis. Stat.
§ 340.01 (46m), which defines an element of certain PAC offenses.
Matke had also relied on language in State v. Skibinski, 2001 WI App 109, 244 Wis.2d 229, 629 N.W.2d 12, to support his claim. The court responded that in Skibinski it had regrettably, misstated the law governing the application of [the OWI sentence enhancement statute,] Wis. Stat. § 346.65(2) to sentences for repeat offenders. The court concluded that while its holding in Skibinski was correct, the language upon which Matke relied was not.