Full text available at: www.wisbar.org
State v. Straehler, 2008 WI App 14
Date: 12/19/07
Case No: 2007AP822
Holding:
Suppression of evidence is not an adequate remedy for a violation of health care privacy laws
Summary:
Straehler ran a red light, was struck by a semi-trailer truck, and was seriously injured. Officers did not detect an odor of intoxicants coming from Straehler at the scene. However, when an officer tried to interview Straehler at the hospital, she was incoherent. The officer contacted the treating nurse who conveyed that hospital staff smelled alcohol coming from Straehler and that Straehler told hospital staff she had consumed alcohol prior to the crash. With Straehler’s consent, samples of her blood were drawn at the hospital, which revealed a blood alcohol concentration of .119. Based upon Straehler’s prior OWI conviction on January 19, 2006, the officer issued Straehler citations for OWI 2nd offense, and OWI-PAC.
Straehler argues the nurse released confidential health information to the officer, which was illegal and therefore should be suppressed. In addition, she argues that without the nurse’s information, the officer did not have probable cause for a blood draw. The State conceded Straehler’s probable cause argument. Straehler relies on both federal and state medical privacy law to support her argument. See 45 C.F.R. § 164.502(a) (Health Insurance Portability Accounting Act of 1996 or HIPAA) and Wis. Stat. § 146.82(1).
The court rejects defendant’s arguments for the following reasons: First, investigating authorities, i.e., police officers, are not among the “covered entities” expressly subject to HIPPA. Second, even if the officer was somehow bound by HIPPA, which the court determined was not the case, HIPAA does not provide for suppression of the evidence as a remedy for a violation. Suppression is warranted only when evidence has been obtained in violation of a defendant’s constitutional rights or if a statute specifically provides for suppression as a remedy. Straehler does not allege a constitutional violation and the statute does not provide for suppression as a remedy. Third, HIPAA expressly provides that it preempts state law when a “standard, requirement, or implementation specification is contrary to a provision of State law.” 45 C.F.R. § 160.203. Straehler argued that HIPAA preempts Wis. Stat. § 905.04. The court disagreed stating that HIPAA and Wisconsin’s evidentiary exception rule are not “contrary.” Thus, HIPAA does not preempt this state law or eliminate the exception to Wisconsin’s evidentiary privilege.
Finally, under Wis. Stat. § 146.82, patient health care records are defined as “all records related to the health of a patient prepared by or under the supervision of a health care provider.” In State v. Thompson, 222 Wis. 2d 179, 189, 585 N.W.2d 905 (Ct. App. 1998), the court held that Wis. Stat. § 146.82 did not apply to the bags of cocaine surgically removed from defendant and given to officers who were in the operating room. Similarly, the statute does not apply to the nurse’s verbal statements regarding Straehler’s intoxication.
Therefore, the trial court properly denied Straehler’s motion to suppress evidence, and even if it was found that the release of Straehler’s health information was in violation of HIPAA and/or WIS. STAT. § 146.82, suppression of evidence is not a remedy.
State v. Alexander, 2008 WI App 9
Date: 12/18/07
Case No: 2007AP403
Holding:
Based on the totality of circumstances, an officer who has a reasonable suspicion of dangerousness can perform a pat-down search of the occupant(s) of a legally stopped vehicle and a protective search of the vehicle.
Summary:
Alexander was riding in the front passenger seat of the vehicle at issue. The vehicle made a traffic violation and an officer proceeded to try and pull over the car. The car did not immediately stop. The officer noticed that Alexander and another occupant of the car were making furtive movements. Based on the furtive movements, the delay in pulling over, the high crime area, and the time of day, the officer believed, based on prior experience, that there was a weapon in the car. Once the car pulled over the officer did a pat-down search of Alexander and the other occupants of the vehicle. No weapons or drugs were found on Alexander. The officer then did a protective search of the vehicle and found a gun, cocaine, and marijuana in the glove box of the vehicle. Alexander was found guilty of possession with intent to deliver cocaine and marijuana.
The issue on appeal is whether the trial court erred in finding that reasonable suspicion existed for dangerousness such that the officer could conduct a pat-down search of the defendant and a protective search of the vehicle. In State v. Johnson, 2007 WI 32, ¶12, 299 Wis. 2d 675, 729 N.W.2d 182, the Wisconsin Supreme Court addressed the issue of whether evidence should be suppressed following an investigative stop triggered by a traffic violation and furtive movements. The standard the court adopted was the officer’s reasonable suspicion and belief, based on the facts of the case and assessing the totality of the circumstances, that the occupant(s) were dangerous and may have immediate access to a weapon. Id. ¶22
Here the appeals court found the officer had reasonable suspicion that Alexander was dangerous based on the following facts: “(1) The officers were in the area due to ‘shots fired’ complaints and knew the area to be very violent, with substantial drug and gun activity; (2) the numerous furtive gestures of the occupants of the car observed by the officers before the car stopped; (3) the delay in stopping raised the suspicion of the officers that the occupants were buying time to hide weapons; (4) the officers’ belief that the situation was dangerous based on the occupants actions immediately upon stopping the car; (5) the items observed on the driver’s seat and the reasonable inferences that could be drawn therefrom; (6) the protective search being the first priority over the traffic stop; and (7) the trial court’s credibility determinations.”
The court concluded the officers had reasonable suspicion to be concerned for their safety based on the totality of the circumstances. The pat-down search and protective search were based on specific and articulable facts, which taken together with all the inferences arising from the facts, justified the officers’ actions.
State v. Knapp, 2007 WI App 273
Date: 11/29/07
Case No: 2007AP1582
Holding:
The State cannot appeal as of right under Wis. Stat. § 974.05(1) (2005-06) and the court of appeals lacks jurisdiction because the order was not final under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4).
Summary:
The State appealed an order granting Knapp’s motion to collaterally attack a prior OWI conviction. The effect of the order was to reduce the charge from OWI-3rd to OWI-2nd.
A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel. State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528. An order granting a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.
Under Wis. Stat. § 974.05(1)(d), the State may appeal certain types of interlocutory decisions in criminal cases as a matter of right. Specifically, the state can appeal any order which has the effect of: 1. Quashing an arrest warrant; 2. Suppressing evidence; or 3. Suppressing a confession or admission. The court disagrees with the State’s argument that the order barring it from using a prior OWI conviction to establish a third offense OWI charge prevents the successful prosecution of the current charge within the meaning of State v. Eichman, 155 Wis. 2d 552, 563, 456 N.W.2d 143 (1990).
The court concluded that unlike a collateral challenge that would reduce an OWI charge from a fourth or greater offense to a third or lesser offense, the reduced number of prior convictions at issue in the case against Knapp will not change the applicable prohibited alcohol level. The information about prior convictions would come in at sentencing only to enhance the potential penalty under Wis. Stat. § 346.65(2)(am).
Here, the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction where the applicable PAC would remain the same under either a second or third offense. Thus, the court concluded that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d). The court also had lack of jurisdiction under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from was not final.
State v. Machgan, 2007 WI App 262
Date: 11/28/07
Case No: 2006AP2836
Holding:
An out-of-state administrative suspension that is the result of an OWI arrest does not count as a prior OWI conviction for the purpose of Wisconsin’s OWI graduated penalty scheme. An out-of-state suspension will only count as a prior OWI conviction if it is the result of a refusal.
Summary:
The state charged Machgan with OWI-fourth offense, relying on a 2004 administrative suspension from Missouri as one of the prior convictions. Machgan’s Missouri driving record showed that Machgan received an administrative suspension as a result of an OWI arrest based on probable cause to believe he was driving with a prohibited alcohol content in that state. In relying on the Missouri suspension, the State argued that the suspension was a “conviction” under Wis. Stat. § 340.01(9r) in two ways: (1) Machgan’s administrative suspension after an OWI arrest was a determination that he violated the law and (2) Machgan’s failure to appear and his outstanding warrant for failure to appear in relation to the arrest was a “violation of a condition of release.”
Machgan, on the other hand, argued that the administrative suspension did not fall within the definition of “conviction” set forth in Wis. Stat. § 340.01(9r). He argued that the administrative suspension was not a determination that he had violated the law because there had not been a determination of his guilt or innocence in Missouri. Second, Machgan pointed out that Wis. Stat. § 340.01(9r) does not say failure to appear is a conviction; but rather that a “violation of a condition of release” is a conviction. Therefore, Machgan’s warrant was not necessarily proof of a violation of a condition of release because the State had not shown what, if any, conditions of release existed. According to Machgan, a warrant without other proof does not fall under the definition. Wis. Stat. § 343.307(1)(e) specifically provides that only one type of revocation and only one type of suspension “under the law of another jurisdiction” is to be counted when determining the penalty imposed under s. 346.65(2); namely, a revocation or suspension “arising out of a refusal to submit to chemical testing.”
The trial court agreed with Machgan and concluded that because the Missouri administrative suspension was not a determination that Machgan had violated the law, it could not be counted as a prior OWI for sentencing purposes. Machgan subsequently pled guilty to third offense OWI and was sentenced accordingly. The State appealed.
On appeal, the State made three arguments in support of its claim that the Missouri administrative suspension was a prior conviction for sentence enhancement purposes in Wisconsin: (1) trial courts must apply the definition of conviction set forth in Wis. Stat. §340.01(9r) in determining the number of prior out-of-state OWI convictions under Wis. Stat. § 343.307(1)(d); (2) a Missouri impaired driving offense that is resolved through suspension of operating privileges by an administrative tribunal falls within the definition of “conviction” set forth in Wis. Stat. § 340.01(9r) and § 343.307(1); and (3) counting the Missouri administrative suspension for sentence enhancement purposes is consistent with Wisconsin’s public policy.
In determining whether Machgan’s Missouri administrative suspension was a prior conviction for sentencing purposes in Wisconsin, the court of appeals looked first to the text of Wis. Stat. §346.63 and Wis. Stat. §346.65. Wis. Stat. §346.65(2) (am), Wisconsin’s graduated OWI penalty scheme, provides for increased penalties depending on “the total number of suspensions, revocations and other convictions under § 343.307(1).” Turning to Wis. Stat. § 343.307, the court noted that the statute contains two subsections that specifically pertain to “the law of another jurisdiction” and what events under the out-of-state law will be counted as priors for the purpose of penalty enhancement: (1) The court shall count the following to determine the length of a revocation under s.343.30(1q)(b) and to determine the penalty under s. 346.65(2): (d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction’s laws. (e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
Wis. Stat. s. 343.01 designates the meaning of certain words and phrases but qualifies its definitions by noting “the following words and phrases have the designated meaning unless a different meaning is expressly provided or the context clearly indicates a different meaning. Wis. Stat. s. 343.01(9r) (in relevant part) defines conviction as “an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal... or violation of a condition of release...”
The court of appeals concluded that Wis. Stat. § 343.307, the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as prior offenses, controlled over the more general statute, Wis. Stat. § 340.01(9r). Wis. Stat. § 343.307(1)(e) specifically provides that only one type of revocation and only one type of suspension “under the law of another jurisdiction” is to be counted when determining the penalty imposed under s. 346.65(2); namely, a revocation or suspension “arising out of a refusal to submit to chemical testing.” The express language and context of the statute distinguishes the meaning of conviction and the meaning of suspension. Only those suspensions arising out of a refusal are to be counted. According to the court, if suspensions for out-of-state OWI arrests were meant to be included with convictions or determinations based on OWI arrests for counting purposes, subsection (e) would be redundant. Here there is a specific statute addressing when to count out-of-state license suspensions: when the out-of-state suspension is the result of a refusal. Because Machgan’s was not the result of a refusal, his Missouri administrative suspension does not count as a prior conviction for penalty enhancement purposes.
State v. Hubbard, 2007 WI App 240
Date: 10/24/07
Case No: 2006AP2753
Holding:
The circuit court erred when it responded to a jury request for clarification of the term “materially impaired” and said it should give all words not otherwise defined their ordinary meaning. The court of appeals held that because the supreme court has provided a definition of “materially impaired” in State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), the trial court should have given the jury the guidance it needed to perform its task. The court of appeals reversed and remanded for a new trial as required in the interest of justice.
Summary:
The state charged Hubbard with causing injury by intoxicated use of a vehicle contrary to Wis. Stat. § 940.25(1)(a). Among other instructions, the court instructed the jury that it must find that Hubbard was “under the influence”. The court explained that “under the influence” meant Hubbard’s “ability to operate a vehicle was materially impaired because of consumption of a prescription medication.”
During deliberations, the jury foreman asked the court to clarify the term “materially impaired.” The court heard arguments from the attorneys outside of the presence of the jury, but ruled that language from Waalen should not be submitted to the jury. The jury returned a guilty verdict.
Hubbard appealed his conviction based on the court’s failure to provide the clarifying language from Waalen to the jury. He asserted that the term “materially impaired” is a technical term with a particular meaning in the law. In Waalen, the Wisconsin Supreme Court stated that material impairment “exists when a person is incapable of driving safely, or ‘is without proper control of all those faculties . . . necessary to avoid danger to others.’” Waalen at 27. The state argued that Waalen did not define “materially impaired,” but rather described circumstances under which it could exist; it was merely language of example.
The court of appeals analyzed Waalen in the context of revisions to the Wisconsin Jury Instructions. It held that “the Waalen decision clarifies the meaning of the term ‘materially impaired’ which determines whether a person is ‘under the influence’ for purposes of Wis. Stat. § 940.25(1)(a).”
Here, the court reasoned that the circuit erred in not providing clarification of the term “materially impaired” when the jury demonstrated confusion about the law. When a jury does not comprehend the law it is asked to apply, the controversy cannot be fully tried and a new trial is required.
Date: 10/17/07
Case No: 2006AP2771
Holding: Time spent under the division of intensive sanctions program (DIS) constitutes “actual confinement” under Wis. Stat. § 939.62(2), and can be used when determining whether increased penalty for habitual criminality is applicable.
Summary:
Pfeil appeals from a judgment convicting him as a habitual criminal of operating while intoxicated, ninth offense, and from an order denying postconviction relief. Pfeil argues that the penalty enhancer for habitual criminality does not apply because his two relevant offenses were more than five years apart and disputes whether he was in “actual confinement” for the 189 days between June 22 and December 28, 1998 when Pfeil was under DIS supervision.
In March 2004, the defendant, Pfeil was charged with ninth offense OWI with a habitual criminality penalty enhancer. Under Wis. Stat. § 939.62(2), Pfeil’s continuous confinement to DIS from September 19, 1997, to December 28, 1998, and his 2002 jail term were used to calculate the time between felony convictions and determine whether Pfeil’s convictions were within a statutory five-year period triggering the repeater enhancer. Pfeil moved to strike the habitual criminality penalty enhancer, arguing that the January 9 through December 28, 1998 time period when he was out of prison and working in the community under DIS monitoring was not “actual confinement” and should not be excluded from the five-year “look-back” calculation under Wis. Stat. § 939.62(2).
The trial court, relying on State v. Crider, 2000 WI App 84, ¶12, 234 Wis. 2d 195, 610 N.W.2d 198 and State v. Magnuson, 2000 WI 19, ¶31, 233 Wis. 2d 40, 606 N.W.2d 536, concluded that since Pfeil would be entitled to sentence credit for DIS confinement and could be charged with escape if he had absconded from the DIS confinement, Pfeil was in “actual confinement” under DIS, which triggers the application of the repeater enhancer.
Under Wis. Stat. § 939.62(2), "The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced…In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded."
The court of appeals concluded that Pfeil’s time spent under supervision of the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution and is deemed a confinement classification where Pfeil was a prisoner and as such eligible for sentence credit. The court held that Pfeil is a repeater because the entire time spent under DIS supervision was “actual confinement” as contemplated by Wis. Stat. § 939.62(2). Thus, his two felony offenses were within the statutory five-year window when time spent in “actual confinement” is excluded from being counted.
Date: 10/10/07
Case No: 2006AP2388
Holding: An officer’s knowledge that a vehicle’s owner’s license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving.
Summary:
When an officer ran a check on a vehicle’s license plate, he discovered the vehicle was registered to Newer and that Newer’s license was revoked. After stopping the vehicle, the officer determined that Newer was intoxicated and arrested him.
At trial, the circuit court suppressed the intoxication evidence. The court held that the officer lacked grounds to reasonably suspect Newer of driving on a revoked license because he did not know who was driving the vehicle.
The State appealed. It argued that the officer had reasonable suspicion because common sense suggests that the owner of a vehicle is driving, and the officer knew that if Newer were driving he would be in violation of Wis. Stat. 343.44(1)(b) (forbidding operating after revocation). Therefore, the officer was reasonable in believing that Newer was driving illegally.
The court of appeals agreed that the officer had reasonable suspicion under such circumstances. In doing so, the court adopted the reasoning of the Minnesota Supreme Court in State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996), which held that it is rational for an officer to infer that the owner of a vehicle is the current operator. Therefore, an officer’s knowledge that the owner has a revoked license is enough to form a reasonable suspicion of criminal activity when an officer observes the vehicle being driven. This is true provided the officer remains unaware of any facts that would render that assumption unreasonable, such as the owner is a 22-year-old male, but the officer observes the person driving is a 60-year-old woman.
Here, because the officer did not observe the driver of the vehicle and had no reason to think it was anyone other than the vehicle’s owner, the officer was entitled to rely on the reasonable assumption that the owner of a vehicle is most likely the driver. Therefore the officer had reasonable suspicion for the stop and the circuit court should not have suppressed the evidence.
Date: 6/20/07
Case No: 2006AP2052
Holding: Wis. Stat. § 973.01(5) authorized the trial court to order a contribution surcharge as a condition of extended supervision without assessing defendant's future financial ability to pay.
Summary:
The defendant, Galvan, pled guilty to homicide by intoxicated
use of a vehicle and was sentenced to eleven years of confinement and four
years of extended supervision (ES). As a
condition of ES, the court ordered defendant to make four annual $1000
contributions to Mothers Against Drunk Driving (MADD). Galvan moved for postconviction relief,
contending that the court erred by ordering the contribution without first
assessing his financial ability to pay.
He argued that while Wis. Stat. § 973.06 authorizes a court to impose a
contribution surcharge, § 973.06(1)(f)1 requires the court to determine that
the defendant has the financial ability to pay the surcharge.
The trial court denied Galvan’s motion, stating that the contribution to MADD was governed by the provisions of ES under Wis. Stat. § 973.01(5) and (8), which are silent as to any ability-to-pay-determination. The Wisconsin Court of Appeals upheld the trial court’s ruling.
The appellate court noted that Wis. Stat. § 973.01(5) grants a court “broad, undefined discretion” in imposing conditions of ES as long as the conditions are reasonable and appropriate. (Citing State v. Larson, 2003 WI App 235, and State v. Koenig, 2003 WI App 12.) The issue in this case was therefore whether Wis. Stat. § 973.06 acts to curtail the broad discretion conferred by Wis. Stat. § 973.01(5).
The appellate court noted that a contribution surcharge under Wis. Stat. § 973.06 is a financial obligation that a trial court may tax against a defendant. Such an obligation is not itself a sentence or a component of a sentence.
Nonetheless, Galvan argued that the surcharge payment to MADD during his ES is similar to a surcharge payment ordered as a condition of probation. However, the appellate court reasoned that ES is not the same as probation. The theory of probation is that a person who is convicted of a crime may be rehabilitated without being imprisoned. Whereas, ES is part of a bifurcated sentence and as such, it begins at a later point after completion of the confinement portion of the sentence. Thus, it makes sense that the ES statute does not ask a court to predict a defendant’s future financial status, often years off, which may be altered by any number of intervening factors.
The court stated that it reads the ability-to-pay statute as meaning precisely what it says: that when a court places a person on probation, the court may order a contribution surcharge if it determines the probationer is able to pay it. Since the trial court did not place Galvan on probation, the statute does not apply.
Finally, the court noted that Galvan has a remedy if he finds himself actually unable to fulfill his condition of ES. Wis. Stat. § 302.113(7m)(a) and (e)1 expressly permit an inmate to petition the sentencing court to modify any conditions it set within a year of the scheduled date of release to ES. Thus, Wis. Stat. § 973.01(5) authorized the trial court to order the payment to MADD as a condition of extended supervision without currently assessing his future financial ability to pay.
Date: 5/17/07
Case No: 2006AP2248
Holding: Wisconsin's hit-and-run statute requires the operator of a vehicle to identify himself or herself as the operator of the vehicle.
Summary:
The defendant, Aprylann Wuteska, was at a bar with Ronald
Wuteska and others. Aprylann left the
bar, but later returned and yelled that a motorcycle had struck her pick-up
truck and to call 911. Ronald Wuteska
had been sitting at the bar when this occurred.
Date: 5/01/07
Case No: 2006AP2804
Holding: The trial court erred when it applied the police custody test from State v. Jones to conclude that the defendant's consent to search his vehicle was invalid. Police custody is one factor, but is not dispositive. The court should have examined the validity of the defendant's consent to search under the totality of the circumstances. Under this test, the defendant's consent to search his vehicle was valid.
Summary:
DNR wardens responded to a report of illegal ATV operation on DNR land. When the wardens arrived, they observed two trucks in the parking lot. Inside one of the trucks, they observed a magazine for a .45 caliber gun. The wardens encountered the defendant, Hartwig, and another man on ATVs in the woods. When they inquired about the firearm, Hartwig lifted his shirt and displayed a .22 caliber pistol. The wardens asked about the larger weapon and Hartwig responded that it was at home. They directed the two men to go back to their trucks. In the parking area, a warden asked if he could look in Hartwig's truck and Hartwig agreed. Hartwig opened the driver's door for the warden and helped him open the center console. The warden discovered burnt tinfoil and methamphetamine residue. He then handcuffed Hartwig and conducted a pat-down search, finding a "sniffer" pipe with residue. When asked, Hartwig admitted to using meth in the woods. He had not been advised of his Miranda rights. At trial, Hartwig filed a motion to suppress the drug evidence.
Relying on State v. Jones, 2005 WI App 26, 278 Wis. 2d 774, 693 N.W.2d 104, the trial court concluded the consent to search the vehicle was not valid because "a reasonable person in the defendant's position would not have felt free to deny the warden's request to search the vehicle." The court of appeals reversed, holding that the trial court misread Jones. While a selected portion of the Jones opinion does seem to imply that one cannot give valid consent to a search if one is in the custody of law enforcement at the time of giving consent, this reading "ignores the remainder of the Jones opinion and runs afoul of long-standing precedent." The court of appeals cited United States v. Watson, 423 U.S. 411, 424 (1976), which held that "the fact of custody alone has never been enough in itself to demonstrate a coerced … consent to search." Here, the appellate court held that Jones was inapplicable to Hartwig's case. It noted that the question in Jones was not the voluntariness of consent, but whether the defendant was lawfully seized under the Fourth Amendment when he consented to a search. Jones, 278 Wis. 2d 774, ¶7. The test from Jones goes to seizure not consent and does not apply to Hartwig's situation.
The correct test for determining consent in Wisconsin is the standard enunciated in State v. Wallace, 2002 WI App 61, 642 N.W.2d 549. Under Wallace, consent must be voluntary as determined by looking at the totality of the circumstances. No single criterion controls. Under this test Hartwig's consent was valid. The court noted that he actively assisted the wardens with the search and there was nothing to suggest that he was particularly vulnerable to police intimidation. The court concluded that evidence from the truck should not have been suppressed.
Date: 3/22/07
Case No: 2006AP1845
Holding: The hit-and-run statute applies to a collision that occured on private property because the defendant's loss of control of the vehicle occurred on the highway.
Summary:
The State alleged that Dartez, while intoxicated, lost
control of her car, left the road, and crashed into the bedroom of a private
residence, killing an occupant. Dartez
fled the scene without rendering aid or identifying herself. Among other charges not at issue in the
appeal, the State charged Dartez under the hit-and-run statute, Wis. Stat.
§346.67(1). Dartez moved to dismiss the
hit-and-run charge alleging that because the accident occurred on private
property the hit-and-run statute did not apply.
Under Wis. Stat. §346.66, the hit-and-run statute is
applicable on highways, premises held out for public use, and premises of
rental housing of 4 or more units, but specifically excludes private parking
areas at farms or single-family residences. The circuit court agreed with Dartez that the hit-and-run statute did
not apply because the accident occurred on private property. Thus, the court dismissed the charge.
On appeal, the State argued that the meaning of the term
"involved in an accident" under the hit-and-run statute includes the driver's
participation in any event involving the operation of a vehicle that results in
the injury or death of a person. Under
this reading "involved in an accident" would include losing control of one's
vehicle on a highway, not just the resulting collision.
Dartez relied on the definition of "accident" in an
unrelated chapter of the statutes as meaning a "collision of a private
passenger vehicle with another object or other upset of the private passenger
vehicle not caused intentionally by the renter."
The court of appeals concluded that a reasonable meaning of "accident" in the context of Wis. Stat. §346.67(1) includes at a minimum the operator's loss of control of the vehicle that results in a collision. It noted that the broader definition of "accident" better fulfills the two purposes of the hit-and-run statute: (1) to ensure that injured persons may have medical or other attention with the least possible delay, and (2) to require the disclosure of information so that responsibility for the accident may be placed. The court held that because Dartez's loss of control of the vehicle occurred on the highway, even though the resulting collision occurred off the highway, she was "involved in an accident" "upon a highway" within the meaning of § 346.67(1) and § 346.02(1).
Date: 2/06/07
Case No: 2006AP870
Issue: Early Release Program Petitions;
Holding: The Department of Corrections' policy to take no position on an inmate's petition for eligibility for the Earned Release Program (ERP) acts as effective approval, under Wis. Stat. § 302.05(3)(e) (2003-04), of the inmate's right to petition the trial court for a determination of eligibility.
Summary:
The court addressed whether the DOC's policy, for an inmate serving a
sentence which commenced prior to July 26, 2003, to take no position on
an inmate's petition for eligibility for the ERP treatment program
constitutes effective approval under Wis. Stat. § 302.05(3)(e)
(2003-04).
While on extended supervision for an OWI (fifth offense) conviction and
a hit and run conviction, Johnson was arrested for a sixth OWI.
The trial court revoked Johnson's extended supervision and ordered her
reconfined. Johnson filed a postconviction motion petitioning the
trial court for a determination of whether she was eligible for the
Earned Release Program (ERP). The trial court denied the petition
finding that the DOC had not approved of Johnson filing her petition.
The ERP is part of the substance abuse treatment program established by
Wis. Stat. § 302.05. It provides that "an inmate serving the
confinement portion of a bifurcated sentence who successfully completes
the ERP will have his or her remaining confinement period converted to
extended supervision, although the total length of the sentence will
not change." Wis. Stat. § 302.05(3)(e) governs the procedure for
petitions for the determination of eligibility for the ERP. It
states that if the sentence was imposed before July 26, 2003, the
inmate may, "with the department's approval," petition the sentencing
court to determine whether he or she is eligible for the ERP.
However, when implementing Wis. Stat. § 302.05(3)(e), the DOC issued
guidance to its institutions stating that "the Department will be
implementing this law prospectively, from the effective date of the law
– meaning inmates who were sentenced before July 26, 2003 will not be
considered for the program at this time." In effect, this meant
that DOC would take no position on an inmate's petition for
eligibility.
The appellate court reversed the trial court's determination that
dismissal was appropriate because the DOC inaction meant the Department
had not approved of Johnson filing her petition. The court of
appeals stated, "the DOC's policy of refusal to take action on inmate
petitions brought pursuant to Wis. Stat. § 302.05(3)(e) must constitute
approval for purposes of the statute. To hold otherwise would
make a mockery of the legislative determination that an inmate
sentenced prior to July 26, 2003, has a right to petition the court for
ERP eligibility." The court noted that it agrees that the DOC is
in the best position to determine, and inform the court, whether a
specific inmate is ineligible for the ERP because of the statutory
exclusion. It further noted that its opinion should not be
construed as prohibiting the DOC from adopting a method by which it
exercises its responsibilities and approves the filing of petitions
which meet the statutory requirements, thereby permitting a court to
exercise its discretion to determine whether a particular inmate should
be eligible for the ERP treatment program. However, until the DOC
adopts such a method the court noted that it had no alternative but to
construe DOC's failure to act as effective approval of an inmate's
right to file the petition.
Date: 1/31/07
Case No: 2005AP2839
Issue: Causing death by procuring alcohol for a minor; sufficiency of evidence; statutory interpretation
Holding: The reference to a single minor or underage person in Wis. Stat. § 1255.075(1)(a) does not preclude its application to a defendant who procures alcohol beverages for a group of persons that the defendant knew or should have known were underage persons. Additionally, the defendant's evidentiary objections regarding the jury instruction on causation, testimony about the victim's drug test results, and a witness for the State that was not on the pre-trial list, all failed.
Summary:
Wille, who was nineteen at the time, purchased two half-barrels of beer
and sold cups for the beer at a party. Witnesses testified that
Meshak, a seventeen-year-old, drank beer from the barrels and was
highly intoxicated when he left the party. Meshak died in a car
accident after he left the party. Wille was convicted of causing death
by procuring alcohol for a minor, Wis. Stat. §125.075(1) (2003-04).
On appeal, Wille argued that the evidence at trial was insufficient to convict him of violating the statute. The court concluded the evidence at trial was sufficient to convict. Wille admitted to purchasing the beer and selling cups at the party. Wille claimed that because the statute requires that he "knew or should have known that the underage person was under legal drinking age," Wis. Stat. § 1255.075(1)(a) (emphasis added) he cannot be convicted of violating the staute unless the State proved that Wille dispensed beer directly to Meshak, or at a minimum, that he knew Meshad was or would be at the party consuming beer that Wille had purchased. The court rejected this argument and concluded that such a construction would be contrary to "the scope, context, and purpose" of the statute. The court held that "the reference to a single minor or underage person in the statute does not preclude its application to a defendant who procures alcohol beverages for a group of persons that the defendant knew or should have known were underage persons."
The court interpreted the statute to conclude that a violation is proven when a defendant is shown to have "procure[d] alcohol beverages for . . . [one or more persons who are] under 18 years of age," if the defendant "knew or should have known that the underage person[s were] under the legal drinking age" and an "underage person [who was under eighteen when provided the beverages] dies … as a result." (brackets in original)
Wille made several evidentiary objections claiming that the circuit court erred by: 1) improperly instructing jurors regarding the required causal link between his actions and the ensuing death; 2) by admitting evidence of the victim's BAC and the results of drug testing; and 3) by permitting testimony from an investigator who the State had not named as a potential witness prior to trial.
1) Jury Instruction on Causation. Wille claimed the trial court erred in instructing jurors that to find Wille guilty Meshak's consumption of alcohol provided by Wille was required to be "a" substantial factor in causing Meshak's death, instead of "the" substantial factor, as Wille requested. The court held that jurors were correctly instructed and could properly find Wille guilty if they concluded that Meshak's consumption of beer provided by Wille was a substantial factor in causing Meshak's death.
2) Drug Test Result Testimony. Wille claimed that testimony about blood and urine test results from the victim was improper because neither was supported by chain-of-custody evidence. The appellate court noted that the absence of other drugs in the victim's system was not an element of the State's case. It concluded that even if the trial court erred in allowing the test results, no "substantial right" of the defendant was affected by the admission of the testimony, see Wis Stat. §901.03(1), and it is "clear beyond a reasonable doubt that a rational jury would have found [Wille] guilty" without hearing the challenged testimony. State v. Harvey, 254 Wis. 2d 442, ¶49.
3)Testimony Without Notice. Wille further contended that the state violated Wis. Stat. § 971.23(1)(d) by calling a witness that the State had not included on its list of witnesses before trial. The court noted that the State called the witness in response to defense counsel's assertion that a baggie of mints found on the victim was ecstasy. The witness was the investigator to whom the bag of mints was given for a determination whether drugs might be present. The State argued that what "Wille attempted to do was create the impression that the mints were actually drugs and then to prevent the State from disabusing the jury of that notion." The court agreed and affirmed Wille's conviction.
Date: 12/06/06
Case No: 2006AP113
Issue: Informing the Accused; Refusal; Miranda
Holding: Kliss unlawfully refused to submit to an evidentiary chemical test. Miranda does not, by itself, suggest that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. The court will not presume reliance on the Miranda warnings, but rather applies the two-part Reiter test to the facts on a case-by-case basis.
Summary:
Kliss appealed from an order holding that he unlawfully refused to
submit to an evidentiary chemical test. An officer arrested Kliss for
OWI, searched his vehicle incident to arrest, and discovered
marijuana. The officer then took Kliss to the police department and
read him his Miranda
rights. Approximately twenty minutes later, the officer issued Kliss a
citation for OWI and read him the Informing the Accused form. The
officer then asked Kliss if he would submit to an evidentiary chemical
test of his breath and Kliss replied "no." The officer recorded this
as a refusal. At the refusal hearing the circuit court held that Kliss
unlawfully refused to submit to the test.
On appeal, Kliss relied on the holding of State v. Verkler
that "[i]f the officer explicitly assures or implicitly suggests that a
custodial defendant has a right to consult counsel, that officer may
not thereafter pull the rug out from under the defendant if he or she
thereafter reasonably relies on this assurance or suggestion." 2003 WI
App37, 260 Wis. 2d 391, 659 N.W.2d 137. Specifically, Kliss argued that
the reading of the Miranda warnings prior to the
administration of the Informing the Accused was misleading and
objectively impacted his ability to make the choice about chemical
testing.
The appellate court held that Verkler does not
create a bright line duty for an officer to clarify that Miranda does
not apply to the request for a chemical test. The court applied a
two-part test under State v. Reiter, 227 Wis. 2d 213, 595 N.W.2d 646, inquiring:
1. Did the Miranda warning mislead the defendant
to believe the right to remain silent and the right to have an attorney
apply in the implied consent setting?
2. Did the defendant rely on the assurance or suggestion by invoking Miranda before deciding whether to submit to an evidentiary chemical test?
The court noted that the officer read Miranda to
Kliss because of the accompanying drug charge and the record supports
the circuit court's conclusion that Kliss did not rely on his right to
remain silent or to obtain legal counsel when refusing the evidentiary
chemical test.
The court held that the reading of Miranda does
not, by itself, suggest that a defendant has a right to consult counsel
or to stand silent in the face of the implied consent warnings. The
court will not presume reliance on the Miranda warnings, but rather
applies the two-part Reiter test to the facts on a case-by-case basis.