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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." Wis. Stat. §344.57(1). The court emphasized that this definition was taken from and applies to a statutory section that addresses financial responsibility relating to rental agreements for private passenger vehicles. It also noted that even that definition includes "other upset of a private passenger vehicle while in operation" reasoning that the legislature did not intend "accident" to be limited to a "collision."
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.