TRAFFIC OFFENSES: chs. 343-346

Updated: 2/2/10


PBT: Expert Testimony, Even if only Partly Based on PBT, Inadmissible, § 343.303
State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152
For Fischer: James M. Shellow, Robin Shellow; Urszula Tempska
Issue1 Whether the express statutory bar on PBT results, § 343.303, precludes admissibility of expert opinion based on those results, notwithstanding that expert opinion generally may be based on inadmissible data, § 907.03.
Holding1
¶25      Fortunately, in this case, the legislature's policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer. Reading the statutes together to create an exception to Wis. Stat. § 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature's intent. The alternative would likely nullify Wis. Stat. § 343.303 whenever a party attached the opinion or report of an expert to the PBT result it wished to get before the jury.
Bit more to it than that, of course, but it reduces to categorical bar on
¶20      The thorny question of what to do with inadmissible evidence that experts rely upon as a basis for an opinion is one that has proved difficult to answer with a fair and workable rule.

¶21      Law professor Daniel Blinka concisely summarizes the practical difficulty of explaining the bases for expert opinions when they include inadmissible evidence, and the unsatisfactory options for resolving the question ….

If you’re looking for a “fair and workable rule,” for “[]satisfactory options for the resolving the question,” this opinion isn't for you. Nor, for that matter, does the court suggest it's even trying to do more than kick this particular can down the road. Sure, the court says there are good, “practical” reasons for absolute inadmissibility, ¶26, but the court doesn’t bother to explain why the generally available options (such as limiting instruction re: substantive use of PBT result) wouldn’t work. Juries are supposed to ignore patent hearsay underlying an expert opinion, why can’t they just ignore the PBT? The court doesn’t attempt to penetrate this mystery, precisely because it doesn’t have to: its holding relates solely to statutory construction of a clearly expressed statute which creates categorical inadmissibility: § 343.303 is an exception to § 907.03, rather than the other way around. The underlying problem—endemic, for example, to all Ch. 980 litigation, wholly dependent as it is on expert opinion based largely on hearsay—is a doctrinal crisis, really, related to administering expert opinions and it simply isn’t going to disappear. No need to use this case to delve into it, hence the otherwise inexplicably relieved tone (“Fortunately ….”).
Issue/Holding 2 Assuming without deciding that an expert opinion based at least partly on inadmissible PBT results has probative value and is necessary to the defendant’s case, the constitutional right to present this evidence “is nonetheless outweighed by the State’s compelling interest in excluding the expert evidence based on PBT results,” ¶32.
¶5        Fischer argues that excluding the expert's opinion violates his right under the constitutions of the United States and Wisconsin to present a defense. We disagree. In United States v. Scheffer, the United States Supreme Court held that state rules that result in exclusion of defense evidence are constitutionally valid “so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” … For reasons explained herein, we hold that in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on PBT results, the right to do so is outweighed by the State's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's act forbidding such evidence in OWI prosecutions, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the State's compelling interest in public safety on its roads. The legislature's decision limiting the admissibility of PBT results helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get——cooperation that is especially critical given that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. 
The court of appeals had held that “the testing mechanism for the PBT is simply not designed so the result obtained during the investigation of a possibly intoxicated driver is accurate enough that it can be used to help a jury determine the driver’s guilt or innocence,” 2008 WI App 182, ¶17. The supreme court, while not quite rejecting that holding, expressly “take[s] a different approach,” ¶34, namely one that assumes PBT accuracy. As the majority goes on to concisely explain, the lower court’s approach simply trades one problem for another: “Wisconsin's tradition of leaving the weight and credibility of the evidence to the trier of fact, which continues to be the law, cannot be squared with an analysis that excludes evidence on the basis of its lack of reliability,” ¶34. No, it can’t. But that doesn’t stop the 3-Justice concurrence from making the attempt, ¶¶37-43. It might be tempting to dismiss that attempt as merely result-oriented, but consider this: if, given “Wisconsin's tradition of leaving the weight and credibility of the evidence to the trier of fact,” reliability doesn’t determine admissibility, then how do we explain categorical inadmissibility of diminished capacity evidence? Or, as the concurrence alludes to, ¶40, polygraph evidence? Odd as it might seem, we’re a very long way from some Grand Unifying Theory of admissibility for expert opinions.

For discussion of court of appeals decision, now seemingly supplanted, go here.

OWI – § 346.65(2), Second or Subsequent Offense – Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension Doesn’t Qualify
State v. Gerard W. Carter, 2009 WI App 156, (AG’s) PFR filed 10/30/09
For Carter: Craig M. Kuhary
Issue/Holding: Illinois “zero tolerance” suspensions don’t count as § 343.307 prior convictions and therefore can’t support sentencing enhancement under § 346.65(2).
The court reviews Illinois caselaw and concludes that a “zero tolerance” suspension is purely administrative. Analysis is therefore “guided” by the State v. Daniel J. Machgan, 2007 WI App 263 holding that an out-of-state administrative suspension which is not the result of a refusal isn’t counted as a “conviction” for purposes of OWI enhancement. If the foreign suspension is based on a “refusal” then it would qualify for enhancement under § 343.307(1)(e)—the State argues that the court should “infer” that the suspensions indeed were for refusals, but the court (despite acknowledging that the “suspension seem to fall more in line with a refusal,” ¶13 n. 5), refuses to do so:
¶12   … The document attached to the amended criminal complaint, identified as a “teletype” from the “T.I.M.E. interpolice agency reporting system” does not identify the reason for the suspension, indicating only “zero tolerance suspension.” Nor do the suspension lengths comport with the Illinois refusal penalties. [5] The document simply does not provide sufficient information to conclude that the suspension was the result of a refusal, especially given that Carter disputes this assertion.

¶13   The State bears the burden of establishing prior offenses as the basis for the imposition of enhanced penalties under Wis. Stat. § 346.65(2). State v. Wideman, 206 Wis. 2d 91, 94, 556 N.W.2d 737 (1996). We conclude that the State has failed to establish that Carter’s suspension was the result of a refusal and therefore has failed to establish that the suspension counts under Wis. Stat.
§ 343.307(1)(e) for purposes of penalty enhancement under § 346.65(2).

OWI – Sufficiency of Evidence: “Operated” Vehicle
State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.”
Holding:
¶13      Wisconsin Stat. § 346.63(3)(b) defines “operate” as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Mertes’ argument focuses almost exclusively on the definition of “operation” under Wis. Stat. § 346.63 and whether Mertes’ presence in the driver’s seat of the vehicle with the engine off but with the keys in the ignition is sufficient to prove “operation.” Mertes’ argument misses the mark. The issue is not whether Mertes was operating the vehicle at the moment the police approached him, but rather whether there was enough circumstantial evidence to prove that he drove the car to the gas station. [5]

¶14      “Circumstantial evidence is evidence from which a jury may logically find other facts according to common knowledge and experience.” Wis JI—Criminal 170. Here, the State’s case was built on circumstantial evidence—or, as the State characterizes it, “the entirely reasonable inference that Mertes had operated the car before the police ever arrived on the scene by driving it into the gas station.” The circumstantial evidence underlying the State’s theory included: (1) Mertes sitting behind the wheel of a vehicle parked at a gas pump with the keys in the ignition in the auxiliary position, (2) his statement that he had been there for approximately ten minutes, (3) his statement that he had come from Milwaukee and was headed back to Milwaukee, and (4) the lack of any evidence to suggest that the passenger (or any other specifically identified individual) had operated the vehicle—indeed Rocklewitz testified that the passenger in the vehicle was incoherent and unable to remain awake. As the State aptly points out, “Vehicles do not simply materialize next to gas pumps at filling stations. They are driven to such locations.”  

Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, distinguished, ¶13 n. 5, on basis “that there was undisputed evidence in Haanstad that someone else had driven the vehicle to that spot.” Milwaukee County v. Proegler, 95 Wis. 2d 614, 628, 291 N.W.2d 608 (Ct. App. 1980) (“operating” subject to proof by circumstantial evidence, so that “operating” may be found where occupant is found in parked car with engine running), extended:  
¶16      While the motor in this case was not running, the keys were in the ignition, the parking and dash lights were on. We believe that even absent a running motor, the jury was entitled to consider the circumstantial evidence in this case to determine how and when the car arrived where it did and whether it was Mertes who operated it.  Indeed, the supreme court contemplated the potential for such a case in Burg ex rel. Weichert v. Cincinnati Casualty Insurance Co., 2002 WI 76, 254 Wis. 2d 36, 645 N.W.2d 880. There, the court observed, “‘[O]peration’ for purposes of the drunk driving laws can be proved circumstantially. A defendant found intoxicated behind the wheel of a parked car with its engine off but still warm might well be prosecuted on that circumstantial evidence of recent ‘operation.’” Id., ¶27 n.8.
OWI – Sufficiency of Evidence: “Operated” Vehicle
State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate  
Issue/Holding:  
¶19      Mertes’ argument on appeal is limited to whether a gas station parking lot qualifies as a “highway.” He does not dispute, and could not dispute, that the roads leading to the gas station are indeed “highways” as defined by Wis. Stat. § 340.01(22). [7] Having concluded that the circumstantial evidence was sufficient to support the jury’s verdict that Mertes operated a motor vehicle, we likewise conclude that the same evidence is sufficient to support a finding that he had done so on a highway prior to arriving at the gas station.
OWI -- Gated Community Roadway, Open to Public Use, Support for Drunk Driving under § 346.61
State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08
For Tecza: Timothy P. Swatek
Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61.
Holding:
¶18      … We read Phillips as inquiring into whether the premises were available for use to the public or “to a defined limited portion of the citizenry.” Richling, 178 Wis. 2d at 859-60. With this focus on the public, we wrote:
   We believe the appropriate test is whether, on any given day, potentially any resident of the community with a driver’s license and access to a motor vehicle could use the parking lot in an authorized manner.
Id. at 860. Using this test, we distinguished Richling from Phillips by pointing out that in the latter, American Motor employees were a “defined, limited portion of the citizenry.” Id. at 860-61.

¶19      Considering the facts of this case in light of the Richling test, we conclude that the roadways of the Community were held out for use of the public as a whole. The undisputed evidence establishes that any person with a driver’s license and access to a motor vehicle was permitted to use the Community’s roads; on a daily basis postal employees, cable television employees, contractors, food service employees, repairpersons, and newspaper delivery persons were granted access to the Community. In addition, members of the general public were given access to the Community’s roadways to show and view houses for sale, watch fireworks, play golf, attend weddings, and to just look around.

¶22      We affirm. The roadways of the Geneva National Community were “held out to the public for use of their motor vehicles” because on any given day any licensed driver could enter the Community unchallenged; therefore, the drunken driving law of the State applies as provided in Wis. Stat. § 346.61. 

OWI -- Compliance with § 343.395(4)
Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision
For Smith: Kirk B. Obear
Issue/Holding: By reading the required statutory information verbatim, the officer fully complied with § 343.305(4); he did not err by failing to inform the driver that he might incur penalties different from those in Wisconsin relative to the state that issued his license nor by telling the driver that if he refused to take the chemical test he would get a hearing within 10 days.
¶56  The principal case is County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), in which the court of appeals set forth a three-pronged inquiry for assessing the information process mandated by Wis. Stat. § 343.305(4). [42] The Quelle court held that a circuit court must answer the following three questions in the affirmative before determining that the information imparted by the law enforcement officer is inadequate:
(1) Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4) . . . to provide information to the accused driver;
(2) Is the lack or oversupply of information misleading; [43] and
(3) Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing? [44]
...

¶81  We disagree with the defendant that the Deputy's statement of the applicable penalties was erroneous.  The Deputy accurately stated the Wisconsin law.  Regardless of whether the Deputy accurately stated the law of Louisiana, neither the deputy nor the defendant believed that the Deputy was stating the law of Louisiana.

¶82  Officers impart information about Wisconsin law and cannot be required to decide whether another state's law might govern or to explain that other state's law.  Imparting information about Wisconsin law is all that can be expected or required of Wisconsin law enforcement officers.  The defendant's argument about Louisiana law is unconvincing.

¶83  The defendant also contends that the Deputy provided the defendant with erroneous information when the Deputy allegedly stated that if the defendant refused to submit to chemical testing, the defendant would be entitled to a hearing within ten days.  As the defendant points out, the defendant was entitled to request a refusal hearing within ten days; he was not entitled to have such a hearing within ten days. [68]

...

¶86  The absence of a finding about what the Deputy told the defendant and whether any misstatement contributed to the defendant's refusal to take the test does not impair our ability to resolve the present case.  The defendant failed to make a prima facie showing, as required by the Ludwigson case, that the Deputy's erroneous statement about a hearing contributed to the defendant's refusal to submit to chemical testing.  Nor does the Deputy's testimony suggest that the defendant cared about the timing of the refusal hearing.  The Deputy's testimony instead shows that the defendant initially decided to submit to chemical testing after his discussion with the Deputy and then changed his mind, apparently because he was unwilling to follow the proper procedure for submitting a breath sample.  Even assuming that the defendant has satisfied the first two prongs of the Quelle inquiry, he has not satisfied the third prong.

OWI – Second or Subsequent Offense – Out-of-State Administrative (Non-Refusal) Suspension Doesn’t Qualify
State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly
Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:
¶12      After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement, controls over Wis. Stat. § 340.01(9r), a more general statute. …

¶14      Subsection (d) lists the type of convictions “under the law of another jurisdiction” that are to be counted when determining the penalty to be imposed pursuant Wis. Stat. § 346.65(2) and counts, along with other listed convictions, a conviction “that prohibits a person from refusing chemical testing.” Subsection (e) then separately and specifically provides only one type of revocation and only one type of suspension “under the law of another jurisdiction” that is to be counted when determining the penalty to be imposed pursuant § 346.65(2): a revocation or suspension “arising out of a refusal to submit to chemical testing.” Thus, the express language and context of this statute distinguishes the meaning of conviction and the meaning of suspension providing that out-of-state convictions for refusal, along with a list of other convictions, are to be counted, but with regard to suspensions, only those arising out of a refusal are to be counted. If suspensions for out-of-state OWI arrests were meant to be lumped in with convictions or determinations based on OWI arrests for counting purposes, subsection (e) would be redundant to subsection (d)’s language which already provides for counting convictions for refusal. If the legislature wishes to count other out-of-state suspensions for penalty enhancement purposes, it is for the legislature to express, not for this court to surmise when the statutory language provides otherwise.

The court again stresses that the foreign “suspension was not the result of a refusal,” something that would have come within specific authorization, ¶16. And, State v. Arthur C. List, 2004 WI App 230, distinguished, ¶15, on (apparent) ground that court supervision in that case was a judicial rather than administration determination.

One last matter, purely procedural but no less perplexing for that: this is a state’s appeal from a sentence, something the court all but fails to mention, let alone discuss. (A glancing reference, “The State appeals,” ¶5, tantalizes but alas nothing follows.) The problem is this: “The State's authority to appeal in criminal cases, as a matter of right, is governed by sec. 974.05, Stats.,” absent which no appeal can be taken, State v. Eichman, 155 Wis.2d 552, 559, 455 N.W.2d 143 (1990). OK, then, just what subsection of 974.05 applies to this case? Would’ve been nice if the court of appeals clued us in instead of making us guess. As it turns out, Machgan moved to dismiss and in an unpublished, single-judge summary order the court determined that the appeal was authorized by § 974.05(1)(a), whose text is: “an appeal may be taken by the state from any … (f)inal order or judgment adverse to the state … if the appeal would not be prohibited by constitutional protections against double jeopardy.” The court’s analysis reduced to this:

… An appeal to review the sentence is not barred by the double jeopardy clause. See United States v. DiFrancesco, 449 U.S. 117, 132 (1980) (“the Government’s taking a review of respondent’s sentence does not in itself offense double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence”). “The double jeopardy clause … does not guarantee the finality of sentences.” State v. Pierce, 117 Wis. 2d 83, 87, 342 N.W.2d 776 (Ct. App. 1983).
Well. This does leave a bit to be desired, doesn’t it? Pierce is a resentencing case – when a defendant obtains resentencing, he can get a stiffer sentence – and has nothing to do with the present situation. DiFrancesco does squarely hold that double jeopardy principles don’t apply to sentencings the same way they apply to convictions or acquittals, which at least kicks the can part way down the road. But not all the way. The Court held that Congressional legislation affording a governmental “right, under specified conditions, to appeal the sentence,” doesn’t offend double jeopardy. Why? Because this very legislation informs the defendant has no expectation of finality in the sentence: “Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.” Doesn’t it beg the question, then, to say that 974.05(1)(a) authorizes this appeal? The Wisconsin   legislature, unlike Congress, simply hasn’t “specifically provided that the sentence is subject to appeal.” Machgan has a very plausible claim, unlike DiFrancesco, that his sentence settled the matter of its length once and for all. The problem, starkly put, is this: if there is no bar to review of Machgan’s sentence, then it’s hard to see how the state would be barred from seeking review of any sentence it thinks too lenient. The underlying issue would be different—exercise of discretion as opposed to determination of the maximum penalty—but that is a mere detail and has nothing to do with impeding prosecutorial review. (And take a glance at State v. Gary J. Knapp, 2007 WI App 273 summarized elsewhere on this page.)
OWI - State’s Appeal: Collateral Attack on Prior OWI Conviction – Non-Final Order, Permission to Appeal Required
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2      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, ¶¶28-29, 238 Wis.  2d 889, 618 N.W.2d 528.  An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.

¶7      Because the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d).  We further conclude that we lack jurisdiction over the appeal under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final.  The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50. [2]  Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

The court simultaneously published an opinion casually noting that successful attack on an alleged OWI prior, if on a different ground, could be appealed by the State as a matter of right from the judgment of conviction. State v. Daniel J. Machgan, 2007 WI App 263, ¶5. Presumably, then (and assuming that result is correct, which could be a stretch), Knapp’s prosecutor could just wait until after conviction and then appeal the collateral-attack order. Sweet! Note further, though, that although the court dismissed the appeal-of-right, it is separately considering whether to grant leave to appeal (Case No. 2007AP002697 – CRLV), and has ordered briefing on “whether double jeopardy would bar the State from appealing the issue as of right following sentence.”
§§ 346.67(1) and 346.74(5)(b), Hit and Run Causing Personal injury – Felony Rather Than Misdemeanor
State v. Ross M. Brandt, 2009 WI App 115
For Brandt: John M. Yackel
Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony.
Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor, another to plead to a felony. But if nothing else, the holding may well have narrow application, notwithstanding some cause for concern. Which brings us to the question, What makes a crime a felony as opposed to a misdemeanor? Legislative whim, apparently, as exemplified by this case. Thus, § 346.74(5)(e) explicitly labels as a “felony” any violation of § 346.67(1) if either death or bodily injury is a result of the accident. And that’s enough for the court of appeals. The court relegates the potential tension to a footnote, ¶6 n. 3, worth quoting in full:
Wisconsin Stat. § 939.60 provides that “[a] crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.” Wis. Stat. § 973.02 provides, in relevant part, that “if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail.” Read together, these statutes indicate that crimes subject to a maximum period of incarceration of less than one year are generally classified as misdemeanors, because they are not punishable by imprisonment in the Wisconsin state prisons.
In other words, Brandt’s argument is: all jail sentences are misdemeanors; a hit-run-injury sentence must be served in jail; therefore, a hit-run-injury is a misdemeanor. The syllogism is impeccable, far as it goes, but it simply doesn’t go far enough. As the court of appeals says in so many words, while it is generally true that a jail sentence makes the crime a misdemeanor, nothing in the statute makes it necessarily so. In this instance the effective presumption of a misdemeanor is overcome by a specific, explicit designation of the offense as a felony, ¶¶6-8. In terms of statutory construction principles, resolution turns on the idea that the specific controls the general:
¶8        However, while Wis. Stat. §§ 939.60 and 973.02 involve the general categorization of crimes as felonies and misdemeanors, Wis. Stat. § 346.74(5)(e) specifically applies to the violations. Any inconsistency is therefore resolved by the principle that when two or more statutes relate to the same subject matter, the more specific statute controls. Machgan, 306 Wis.  2d 752, ¶7. This conflict was not present in McDonald, as the application of § 939.60 and § 973.02 in that case was consistent with the language of § 346.74(5)(e). Because the specific language of § 346.74(5)(e) stating that the offense is a felony controls in this case, the 2001 amendment to § 346.74(5)(b) reducing the maximum punishment to less than one year of imprisonment did not change the offense to a misdemeanor.
Like the conclusion or not, its logic is hard to argue with. Net result, then, is that place (prison) and term (1+ years) of incarceration ordinarily draw the line between felony and misdemeanor, but a very specific legislative designation overrides this general categorization. And that makes the holding narrow: there must be a specific designation before a jail-sentence crime is elevated to felony status. The worrisome part is that, so far as can be seen, nothing precludes the legislature from labeling any offense a felony.
§ 346.67(1)(a), Hit-and-Run – Elements – Operator ID
State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett
Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:
¶13 Applying these principles, we conclude the only reasonable meaning of Wis. Stat. § 346.67(1)(a) is that it requires the operator of the vehicle to identify himself or herself as the operator. The introductory language of § 346.67(1) imposes a number of obligations on “the operator of any vehicle involved in an accident resulting in injury to or death of any person or in damage to a vehicle….” (Emphasis added.) Section 346.67(1)(a) requires “[t]he operator [to] … give his or her name or address and the registration number of the vehicle he or she is driving … to the person struck or to the operator or occupant of or person attending any vehicle collided with.” [4] (Emphasis added.) Implicit in giving the registration number “of the vehicle he or she is driving” is giving the information that he or she is driving the vehicle whose registration number is being provided.

¶14 In addition, Wis. Stat. § 346.67(1)(b) requires that “[t]he operator shall upon request and if available exhibit his or her operator’s license.” (Emphasis added.) Such a request makes no sense unless the operator has first identified himself or herself as the operator.

¶15 Finally, we consider the purpose of Wis. Stat. § 346.67(1). The “two clear purposes” of Wisconsin’s hit-and-run statute are:

(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.
State v. Swatek, 178 Wis. 2d 1, 7, 502 N.W.2d 909 (Ct. App. 1993) (citation omitted). The first purpose relates to para. (1)(c), which is not at issue in this case. The second purpose is the one that is relevant to construing para. (1)(a). In order to determine responsibility for the accident, it is necessary to know who was operating the vehicles involved in the accident. …
[4] In State v. Mann, 135 Wis. 2d 420, 424-25, 430, 400 N.W.2d 489 (Ct. App. 1986), we held that the word “attending” is not unconstitutionally vague and that an operator who leaves the scene of an accident without giving the specified information to the responding officer has violated this requirement; we rejected the argument that the officer was not a “person attending any vehicle collided with” because he was aiding the injured person and was not doing something in relation to the vehicle.
This result was probably foreordained by State v. Stephen D. Harmon, 2006 WI App 214, ¶14 (“the need for disclosure of information in order to place responsibility for the accident exists whether the operator acted with or without intent”), albeit in dicta.
Hit & Run, § 346.67(1) – Elements – “Highway”
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: The definition of “highway” for purposes of the hit-and-run statute, § 346.67(1), is found in § 340.01(22), ¶ n. 3.
Hit & Run, § 346.67(1) – Elements – “Accident” Occurring on “Highway,” and Relation to Private Property
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue: Whether hit-and-run liability attaches to an accident occurring on private property. Holding:
¶13      In this case, as already noted, we are concerned with the meaning of “accident” in Wis. Stat. § 346.67(1) in conjunction with the requirement of “upon the highway” in Wis. Stat. § 346.02(1). We agree with Dartez that a common meaning of “accident” when used in connection with a motor vehicle is a collision with another object or person. However, it does not necessarily follow, as Dartez contends, that events immediately preceding the collision and resulting in the collision are not encompassed within the meaning of “accident.” Moreover, limiting “accident” to “collision” in this context would exclude a situation in which no collision occurs but someone is injured on a highway as the result of the operation of a motor vehicle on a highway—such as when a passenger falls out of a moving vehicle. This would come within the broad definition of “accident” we adopted in Harmon, and we can see no rationale for excluding such a situation from § 346.67(1) simply because no “collision” occurred.

¶20      We conclude that when, as here, a vehicle is involved in a collision, the term “accident” in Wis. Stat. § 346.67(1) includes, at a minimum, an operator’s loss of control of the vehicle that results in the collision. Because Dartez’s loss of control of the vehicle occurred on the highway, even though the resulting collision occurred off the highway, we conclude she was “involved in an accident” “upon a highway” within the meaning of § 346.67(1) and Wis. Stat. § 346.02(1). Accordingly, we reverse the circuit court’s order dismissing this charge and remand for further proceedings.

Implied Consent – Test for Adequacy of Warning, Generally
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding:
¶7        … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…

¶8        … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct. App. 1995) … identified a three-part test to assess the adequacy of a warning provided under the implied consent law. Id. at 280. The test asks:  (1) whether the officer had met or exceeded his or her duty to provide the statutory information to the accused driver, (2) whether the lack or oversupply of information was misleading, and (3) whether the failure to properly inform the driver affected the driver’s ability to make a choice about the evidentiary chemical test. Id. In Quelle, we expressly rejected a subjective confusion defense ….  

¶9        … In State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), the issue before the court was “whether the implied consent statute imposes an affirmative duty upon a police officer to inform a defendant that there is no right to counsel in the implied consent setting, and whether a defendant’s request to consult with an attorney constitutes a statutory refusal to submit to a chemical test.” Id. at 223. The Reitter court held that no affirmative duty to advise defendants existed. Id. at 242-43. …

¶10      … State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W.2d 137. … expressly relied on the Reitter holding to conclude 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.” Verkler, 260 Wis. 2d 391, ¶8.

Refusal, § 343.305(9) and Implied Consent Law – Interaction with Miranda Warnings
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):
¶14      There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused. Thus the argument can be made that Thomas explicitly assured Kliss he had the right to remain silent and to obtain counsel prior to responding to the request for an evidentiary chemical test. This proposition would be more persuasive had there not been a drug charge accompanying the OWI charge. The discovery of marijuana provides the explanation for the Miranda reading here. If OWI had been the only concern, Kliss would have a stronger argument that the Miranda warning pertained to Thomas’s request for the chemical test.

¶17      The reading of Miranda does not, in and of itself, lead us to conclude that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Furthermore, we will not presume reliance on the Miranda warnings. Rather, we apply the two-part Reitter test to the facts on a case-by-case basis. The court must determine whether, under the facts of the case, the Miranda warning mislead the defendant to believe the right to remain silent and to have an attorney apply in the implied consent context. If so, the court must then determine whether the defendant invoked the Miranda rights when faced with the decision whether to submit to an evidentiary chemical test. Only where both factors are present will a refusal be deemed lawful.

Hit-and-Run, § 346.67(1) – Element of “Accident”: May Encompass Intentional Conduct
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding:
¶14      The “two clear purposes” of Wisconsin’s hit-and-run statute are:
    (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. 
State v. Swatek, 178 Wis. 2d 1, 7, 502 N.W.2d 909 (Ct. App. 1993) (citation omitted). Given these purposes, it is not reasonable to conclude that the legislature intended to limit “accident” to incidents that occurred through the “lack of intention” of the operator of the motor vehicle. The injured person needs prompt medical attention regardless of the intention of the operator of the motor vehicle. Similarly, the need for disclosure of information in order to place responsibility for the accident exists whether the operator acted with or without intent. Limiting the meaning of the word “accident” to unintentional conduct significantly undermines the purposes of the statute and is therefore not a reasonable construction.

¶16      We conclude that the meaning of “accident” in Wis. Stat. § 346.67(1) is not limited to unintentional acts or events. Instead, the only reasonable meaning, when the word is considered in the context of the statute and in light of its purpose, is the broad meaning of “an unexpected, undesirable event.”

Hit-and-Run, § 346.67(1) – Reporting Requirement as Related to Self-Incrimination
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding: The § 346.67(1) requirement that a driver provide name, address, vehicle registration number, and driver’s license “to the person struck” does not violate the 5th amendment under controlling authority of California v. Byers, 402 U.S. 426 (1971), notwithstanding that the statute encompasses intentional conduct:
¶29      In short, all the analyses leading to the conclusion of the Byers majority that the California hit-and-run statute does not infringe the Fifth Amendment privilege against self-incrimination take into account the possibility of criminal liability for conduct involved in some accidents. Nonetheless the majority concluded that the requirement of stopping and giving one’s name and address does not infringe on the Fifth Amendment privilege. Harmon has not argued that there is any difference between the purpose and requirements of the California statute and those of Wis. Stat. § 347.67(1) that provides a basis for concluding that Byers is not dispositive. Accordingly, we conclude that, under Byers, our construction of “accident” in § 347.67(1), which may include intentional conduct, does not infringe Harmon’s Fifth Amendment privilege against self-incrimination. [10]
[10]  We observe that numerous state courts have concluded that under Byers the reporting requirements of the state’s hit-and-run statute do not infringe a defendant’s privilege against self-incrimination. See, e.g., People v. Goodin, 668 N.W.2d 392, 394-396 (Mich. Ct. App. 2003); Commonwealth v. Long, 831 A.2d 737, 744-50 (Pa. Super. Ct. 2003); State v. Adams, 891 P.2d 251, 253-54 (Ariz. Ct. App. 1995); People v. Jiminez, 15 Cal. Rptr. 2d 268, 276-77 (Ct. App. 1992); Creary v. State, 663 P.2d 226, 229-30 (Alaska Ct. App. 1983); State v. Melemai, 643 P.2d 541, 545-46 (Haw. 1982); State v. Greenberg, 607 P.2d 530, 533-35 (Kan. Ct. App. 1980); State v. Smyth, 397 A.2d 497, 499-500 (R.I. 1979); Trail v. State, 552 S.W. 757, 758 (Tenn. Ct. App. 1976); Banks v. Commonwealth, 230 S.E.2d 256, 258-59 (Va. 1976); People v. Samuel, 277 N.E.2d 381, 383-87 (N.Y. 1971); State v. Engstrom, 487 P.2d 205, 210 (Wash. 1971); Lamb v. State, 488 P.2d 1295, 1297 (Okla. Crim. App. 1971).
Byers is a 4-1-4 decision, Harlan being the “1” in concurrence; no majority opinion, in other words. Harmon seems to rest its conclusion almost entirely on the “lead opinion’s analysis,” with but passing reference to Harlan’s concurrence (¶28). Because this methodology deviates from the established norm, it is impossible to say with any certainty that the court’s conclusion is unassailable. Where no explicit majority exists, the holding is located at the narrowest point(s) of agreement between concurrence and lead opinion. See Lounge Management v. Town of Trenton, 219 Wis.2d 13, 21-22 13, 580 N.W.2d 156 (1998) (“when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court's ultimate holding”); see also Marks v. U.S, 430 U.S. 188, 193 (1977)  (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’ Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). That is, the court’s scanting reference to Harlan’s concurrence has it backward. The court says that “Justice Harlan’s analysis also takes into account the fact that there may be criminal liability for the conduct involved in an accident for which the statute imposes the obligation to stop and identify oneself,” ¶28—but the question isn’t whether that analysis took criminal liability “into account” but whether both it and the lead opinion shared that rationale. As it turns out, they quite possibly did, see 402 U.S. at 458; on the other hand, the extension of that rationale to intentional conduct could well be something else, and would require much more detailed scrutiny of the concurrence.
OWI – “Materially Impaired” – Judicial Construction, State v. Waalen, Absorbed into Elemental Meaning
State v. Jonathan J. Hubbard, 2007 WI App 240, (AG’s) PFR filed 11/20/07
For Hubbard: Steven Zaleski
Issue/Holding: The construction of “materially impaired” by State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), clarifies the meaning of that OWI element:
¶9    In Waalen, … (t)he 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.’” Id. at 27. ...

¶11   We are convinced 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). Judicial construction of a statutory term becomes part of the statute unless subsequently amended by the legislature. See Wenke v. Gehl Co., 2004 WI 103, ¶31 n.17, 274 Wis. 2d 220, 682 N.W.2d 405. Where the task is to determine what a statute means, it is appropriate to resort to common and approved usage of terms, which can be established by case law. See State v. Dalton, 98 Wis. 2d 725, 739, 298 N.W.2d 398 (Ct. App. 1980).

OWI – Defenses: Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.
Holding:
¶11 Thus, a threshold prerequisite for application of the doctrine is that, in order to be precluded from “relitigating” an issue, a party must have “actually litigated” it previously. …

¶12 … By contrast, a determination is not conclusive “as to issues which might have been but were not litigated and determined in the prior action.” …

¶13 The question of whether the arresting officer had probable cause to arrest Nytsch was not “actually litigated” during the judicial review hearing. The court’s order vacating the administrative suspension is more akin to the Restatement’s examples of nonlitigated circumstances, such as when an admission is given and evidence relating to the issue is never heard before a court and therefore a considered judgment is never made.

The court goes on to invoke notions of “fundamental fairness,” which include “the adverse impact on public safety that would result from allowing issue preclusion to prevent relitigation of probable cause under the circumstances of this case,” ¶17. The court also “overrules” (that is not technically correct, but close enough) the unpublished case of Village of Westfield v. Mashek, 1994AP361, 11/10/94, ¶18 n. 6. ( Mashek has no precedential value, because it isn’t published, so it can’t be overruled; instead, the court says that the “result” in that case “is wrong.”)
OWI, § 346.63(1)(am) – “Operating” – Merely Sitting in Parked Car, Engine Running, Not Enough
Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, reversing unpublished decision
For Haanstad: John M. Gerlach
Issue: Whether sitting in the driver’s seat of a running, parked car is, without more, “operating” a motor vehicle within § 346.63.
Holding:
¶15 The term "operate" is defined in § 346.63(3)(b), which reads: "'Operate'" means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."

¶16 The court of appeals' conclusion directly contradicts the plain meaning of the statute. According to the explicit words of the statute, in order to "operate" a motor vehicle, the statute requires that the person physically manipulate or activate any of the controls of the motor vehicle necessary to put it in motion. The Village does not dispute, and the court of appeals concluded, that Haanstad never physically manipulated or activated any of the vehicle's controls. She did not turn on or turn off the ignition of the car. She did not touch the ignition key, the gas pedal, the brake, or any other controls of the vehicle. Haanstad simply sat in the driver's seat with her feet and body pointed towards the passenger seat. Haanstad did not "operate" a motor vehicle under the statute's plain meaning.

County of Milwaukee v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980) distinguished:
¶19 In other words, the Proegler court dealt with facts where there was no question that the defendant had started the engine, thereby "activating" the controls necessary to put the vehicle in motion. The real issue in Proegler was whether the statute should be interpreted to penalize one who, having already started the engine, has the "brains to get off the road." Id. at 626-27.
The holding, in other words, is relatively narrow, ¶21: “In contrast, the evidence here is undisputed that Haanstad did not drive the car to the point where the officer found her behind the wheel. … There is no dispute: Haanstad never touched the controls of the vehicle. As the circuit court judge so aptly stated, ‘if she is guilty, she is guilty of sitting while intoxicated.’” And:
¶23 In the present case, Haanstad was merely sitting in the driver's seat of a parked vehicle. Although the engine was running, the uncontested evidence shows that Haanstad was not the person who left the engine running. She never physically manipulated or activated the controls necessary to put the vehicle in motion. In addition, the present case is distinguishable from Proegler, as there is no circumstantial evidence that Haanstad "recently" operated the vehicle. In contrast, there is uncontested evidence demonstrating that Haanstad never touched the driving controls while sitting in the driver's seat, and that Satterthwaite was the individual who recently operated the vehicle.
It also remains true that immobility of the vehicle is “immaterial, because the physical manipulation or activation of the controls for purposes of the definition of ‘operate’ did not necessarily require that the vehicle be moving,” ¶22 n. 5, citing with approval, State v. Modory, 204 Wis. 2d 538, 544, 555 N.W.2d 399 (Ct. App. 1996).)
OWI, § 346.63(1)(am) – Elements, Proof of “Impairment” Not Necessary
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16.
OWI, § 346.63(1)(am) – Constitutionality
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding: Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6
OWI - Enhancer – Collateral Attack on OWI-1st
State v. Joseph J. Hammill, 2006 WI App 128
For Hammill: Patrick J. Stangl
Issue/Holding:
¶15      Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day, with the Eau Claire conviction occurring first. Hammill asserts that the Village of Cameron charge was an OWI-second and that a municipal court does not have subject matter jurisdiction over a second or subsequent OWI charge, citing County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982). Hammill then contends that, because the court lacked subject matter jurisdiction, the conviction is a nullity and cannot be counted for penalty enhancement purposes in this case.

¶16      The State responds that Hammill’s challenge to the Village of Cameron conviction is barred by Hahn. … Because Hammill’s challenge to the Village of Cameron conviction is not grounded on an alleged violation of his right to counsel, the State argues, Hammill may not collaterally attack the Village of Cameron conviction based on a lack of subject matter jurisdiction.

¶17      Hammill replies that Hahn did not specifically address whether a void judgment could be used to enhance a sentence. We disagree. Hahn is a broad, bright-line rule. Since Hammill’s challenge to his Village of Cameron conviction is not based on the denial of his right to counsel, the challenge is barred by Hahn.

Could Hammill have brought an independent challenge to his Village conviction under § 806.07(1)(d)? That might depend on 1) whether the judgment was “void” and if so 2) whether the § 806.07(2) “reasonable time” limitation for bringing the motion allows you to wait 12 years before challenging a void judgment. The answer to the latter question seems settled, see e.g., Neylan v. Vorwald, 124 Wis.2d 85, 100, 368 N.W.2d 648 (1985) (“Section 806.07(2), Stats., requiring motions to vacate orders or judgments to be brought in a "reasonable time" does not apply to void judgments.”). Let me quickly add the equivalent of a strongly worded consumer act warning: I haven’t shepardized the case or otherwise researched the point, so you will definitely want to do your own follow-up; sound advice any way, under any circumstances. The 1st question thus seems to be the decisive one—on the merits, someone with expertise in this area will have to weigh in; as a procedural matter, though, and assuming Neylan applies, it’s safe to say that if a challenge is to be made, it would have to be as an independent § 806.07 attack in the OWI-1st proceeding. Separate, tangential point: it might be worth recalling that the Hahn rule has similarly been applied to challenges to a prior refusal used as an enhancer, State v. Keith S. Krause, 2006 WI App 43, ¶12 (no right to counsel in refusal proceeding, therefore Hahn precludes collateral attack within enhanced proceeding).
Enhancement – OWI Prior, Collateral Attack – Procedure
State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen
Issue1: Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.
Holding1:
¶25      … For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she "did not know or understand the information which should have been provided" in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. See Hampton, 274 Wis.  2d 379, ¶46 (citing Bangert, 131 Wis.  2d at 274-75).  Any claim of a violation on a collateral attack that does not detail such facts will fail.

¶26      Applying the above principles to the facts of this case, we hold that Ernst's attempt to initiate a collateral attack failed. … Ernst made no mention of specific facts that show that his plea was not a knowing, intelligent, and voluntary one.  Instead, Ernst simply relied on the transcript and asserted that the court's colloquy was not sufficient to satisfy Klessig. … Since this was a collateral attack, the lack of specific facts resulted in a failure to establish a prima facie case that Ernst did not knowingly, intelligently, and voluntarily waive his right to counsel. …

Issue/Holding2: If the defendant does make a prima facie showing, then the procedures authorized by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) apply: the burden shifts to the State to prove by clear and convincing evidence that waiver of counsel was knowing, intelligent and voluntary, ¶27; the defendant may be questioned at the ensuing evidentiary hearing, ¶¶30-31; any 5th amendment claim of privilege against testifying at such a hearing is waived by putting the matter of knowledge of rights at issue, ¶33; if the defendant refuses to testify, the trial court may draw an adverse inference, ¶35.
As a casual aside, the court asserts, ¶33: “To make a prima facie showing a defendant is required to point to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. An affidavit from the defendant setting forth such facts would be necessary, in order to establish a prima facie case.” Assuming that this is not a slip (and it would be very unwise to make such an assumption), this requirement of an affidavit from defendant substantially deviates from current pleading practice: contrast this explicit requirement of an affidavit, with past indications that the defendant need “merely allege he or she did not know or understand the information that should have been provided at the plea hearing,” State v. John A. Jipson, 2003 WI App 222, 2003 WI App 222, ¶7, 267 Wis. 2d 467, 671 N.W.2d 18, citing Bangert, 131 Wis. 2d at 268-69; and to like effect, see generally, State v. Corey J. Hampton, 2004 WI 107. The court currently has on its calendar a Bangert sufficiency-of-pleading case, 2003AP2662-CR, State v. James E. Brown, rev. gr. 6/1/05 – perhaps that case will provide some clarification. In the meantime, though, you ignore ¶33 at your peril.

One additional point worth mentioning: can the State, under the guise of wide-open cross rule, examine the defendant on a range of incriminatory matters and then use that material at the ensuing trial? The court’s broadly stated waiver language is certainly worrisome if taken at face value. Fortunately, you don't have to take the language at face value, because § 901.04(4) explicitly limits the wide-open cross rule when the defendnat is testifying as to a "preliminary matter," as this surely is. And though it is therefore not necessary to go further, note as well the court’s express analogy to State ex rel. Goodchild v. Burke, 27 Wis. 244, 133 N.W.2d 753 (1965), and its recognition that “the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances” of the matter in controversy, ¶31 n. 10. Stress, of course, on “limited purpose,” which ought to be something of a counter-weight against the wide-open cross rule.

OWI -- Enhancement – Collateral Attack, Prior Refusal
State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry
Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:
¶12      In an enhanced-penalty situation, a collateral attack on a prior conviction used for enhancement must be founded on a claim of actual or constructive denial of the constitutional right to counsel. See Hahn, 238 Wis.  2d 889, ¶17. However, because a refusal hearing is a civil proceeding, no constitutional right to counsel attaches. See Shoepp, 204 Wis. 2d at 272; Stroe, 256 F.3d at 500. Accordingly, Krause did not have a constitutional right to counsel upon which to base his collateral attack. We affirm the judgment of conviction and the order denying postconviction relief.
The fact that a refusal is a civil proceeding might support lines of attack not available to the typical enhancer. Independent collateral attack is supported by § 806.07(1)(a), which in some ways is a more flexible remedy than § 974.06. You don’t for example have to be in custody, nor does your argument have to raise a constitutional or jurisdictional defect. On the other hand, there is a one year (or “reasonable time”) limitation. Krause did file a § 806.07 motion but came up against the time bar, ¶4. He then filed a § 974.06 motion which was denied on the basis that he hadn’t been denied counsel, ¶5. The motion could just as easily have been barred on the basis that Krause wasn’t in custody under the refusal revocation, though the court doesn’t say as much. For that matter, it ought to be recalled as a general proposition that if the attack involves denial of counsel the challenge can be made through the enhancement proceeding itself, where procedural bars arguably fall away. State v. David M. Hahn, 2000 WI 118, ¶28. But as Krause clarifies, there’s no merit to such an argument regardless of the forum, if the enhancer is a refusal. Still, if there’s some other basis for attack, § 806.07 would seem to be the vehicle. One other potential sticking point. OWI enhancement is based on the “prior conviction” rule; see, e.g., State v. Brandon J. Matke, 2005 WI App 4, ¶16 for explanation. But that rule is based on the idea that there was a prior conviction—which is to say, a finding of guilt at a proceeding at which the defendant had the rights to jury trial and proof beyond reasonable doubt.
OWI – Penalty Provision – Timing of Priors
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense.
Holding:
¶5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under Wis. Stat. § 346.65(2) has been settled law since at least 1981, when the supreme court decided State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981). … The court concluded that the language evinced the legislature's intent that enhanced penalties apply when the requisite number of convictions have accumulated within the period specified "regardless of the order in which the offenses were committed and the convictions were entered." Id. at 48. …

¶6. A year later, the supreme court concluded in State v. McAllister , 107 Wis. 2d 532, 319 N.W.2d 865 (1982), that the number of a defendant's prior OMVWI convictions to be counted for penalty enhancement purposes is not an element of the offense of OMVWI. …

¶8. … His present conviction was for OMVWI, not PAC, and the statute under review is Wis. Stat. § 346.65(2), a penalty enhancement statute, not Wis. Stat. § 340.01(46m), which defines an element of certain PAC offenses.

¶9. Thus, the holdings in Banks and McAllister, not those in Ludeking and Alexander, govern the present facts, requiring that we affirm Matke's sentence as a six-time OMVWI offender. There can be little question that, under Banks and McAllister, the proper time to determine the number of a defendant's prior convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense.

The court withdraws language from ¶8 of State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12, which suggested that prior convictions must be proven as an element of OWI-repeat offense. See ¶¶14-15. The court, it should be noted, takes pains to demonstrate that the withdrawn language was unnecessary to the holding, “is plainly contrary to controlling supreme court precedent,” contradicted language elsewhere in Skibinski, and therefore “is not binding on us here.” All true, no doubt, but notice how the discussion finesses the procedural problem presented by the “unified voice” construct of the court of appeals, namely that “(t)his court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so,” American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18 (emphasis supplied), reversed on other grds., 2004 WI 2. Indeed, the supreme court has all but said that the court of appeals lacks authority to withdraw even its own dicta. State v. William L. Morford, 2004 WI 5, ¶40. Skibinski may well have been wrong, perhaps patently so, but something more than that is required to prise open the court’s language-withdrawal window. That something would be the notion that the withdrawn language is irreconcilable with supreme court precedent, because the court of appeals plainly is required to follow that court’s pronouncements when they conflict with its own, State v. James F. Brienzo, 2003 WI App 203, ¶14. A more interesting problem would be presented if the only concern were with internally inconsistent logic or language; how the court is to choose which branch of its forked-tongue pronouncement satisfies the unified-voice doctrine will have to await a more suitable case.
OWI – Penalty Provision – Enhancement – Proof (and Apprendi)
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue/Holding:
¶16. Matke also contends that the trial court's interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions. Matke claims that the U.S. Supreme Court so held in Apprendi v. New Jersey, 530 U.S. 466 (2000). Matke is again mistaken. The Court specifically excluded sentence enhancements for prior convictions from its holding in Apprendi:  " Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 (italic emphasis added).7
7   The Court explained later in its opinion that, not only does "recidivism `... not relate to the commission of the offense' itself," but in addition, "there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).
For discussion on Apprendi and enhancement of OWI sentence, go here.
OWI -- Evidence – Admissibility, Field Sobriety Tests
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding:
¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) ("All relevant evidence is admissible unless otherwise provided by law."). Evidence is relevant when it is probative of any material fact. Wis. Stat. § 904.01 (Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). Even Wilkens does not argue that Onken's observations of his performance on the FSTs utterly lacked probative value. Certainly, when an officer-particularly one with sixteen years of law enforcement experience and who makes an average of four OWI arrests each month-determines that a driver fails not one but three FSTs, it is more probable that the person has an illegal blood alcohol concentration than if the officer determined he or she passed the tests. We cannot conclude that the trial court erred in considering the evidence.
OWI – Evidence – Intoximeter EC/IR – Approval of Instrument by DOT
State v. Larry N. Winsand, 2004 WI App 86, PFR filed 4/12/04
For Winsand: Ralph A. Kalal
Issue: Whether results of an Intoximeter EC/IR breath test was inadmissible because approval of this testing instrument by the chief of the DOT chemical test section involved standards that should have been but were not promulgated as administrative rules under ch. 227.
Holding:
¶7. The results of a test administered in accordance with Wis. Stat. § 343.305 is admissible in an OWI proceeding on the issue whether the person was under the influence of an intoxicant, and it is given "prima facie effect" without the need for expert testimony in certain circumstances. Sections 343.305(5)(d) and 885.235. The purpose of requiring the evaluation and approval of breath test instruments is to make sure the results have the accuracy that is deserving of the prima facie effect given them without an expert testifying on the accuracy. State v. Baldwin, 212 Wis. 2d 245, 260, 569 N.W.2d 37 (Ct. App. 1997).

...

¶9. Turning now to the definition of "rule" in Wis. Stat. § 227.01(13), we observe that Winsand does not explain precisely what should have been promulgated as a rule. He does refer to the "approval" of the instrument, but approval of a particular item or program is not in itself a rule because it is not a general order of general application. See Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR, 172 Wis. 2d 299, 316-17, 493 N.W.2d 744 (Ct. App. 1992). Winsand also refers to the section chief's testimony in response to questioning that the Intoximeter EC/IR met her "standards." However, her testimony does not describe any specific standards but, rather, describes the qualities the instrument was tested for. Therefore, if there are any standards used in the approval process that meet the definition of "rule," they must be contained in the exhibits she identified. We examine each of the three categories of exhibits in turn.

¶10. The first category is the specifications for bidders. … We conclude this exhibit comes within the exception in Wis. Stat. § 227.01(13)(k) for action or inaction of an agency that "[r]elates to ... the purchase of ... equipment ... by ... a state agency." The specifications for bidders without question relate to the purchase of equipment by a state agency.

¶11. The second category is an exhibit entitled "Breath Alcohol Analyzer Intrument [sic] Evaluation Protocol, March 1994." This contains procedures for testing the instruments and consists largely of questions to be asked in evaluating the instruments. … We are satisfied that the evaluation protocol is intended as guidelines for the staff in testing the instruments and does not establish any standards of general application having the effect of law.

¶12. The third category of document is tests of various kinds that were conducted on particular Intoximeter EC/IR instruments, apparently not all the same instruments, on various dates. … The record of a test conducted on a particular instrument is not a standard of "general application." See Id. at 316-17.

OWI -- Proof of Priors – Certified DOT Driving Transcript
State v. Kevin J. Van Riper, 2003 WI App 237
For Van Riper: Anthony L. O’Malley
Issue/Holding:
¶13. Thus, the cumulative effect of Wideman and Spaeth is as follows: (1) the proof requirements of Wis. Stat. § 973.12(1), the repeater statute in the criminal code, do not apply in OWI prosecutions (Wideman); and (2) a DOT teletype is competent proof of a defendant's prior convictions (Spaeth).

¶16. If, pursuant to Spaeth, a teletype of a defendant's DOT driving record is admissible and sufficient evidence of prior offenses for purposes of penalty enhancement in a sentencing proceeding, then certainly a certified DOT driving record is admissible and sufficient to prove the status of an alleged repeat offender in a PAC prosecution.

¶18. Here, a certificate bearing the State of Wisconsin DOT seal and the signature of the DMV administrator accompanies Van Riper's DOT driving record. Both Wisconsin case law and statutes support the admission of this certified document as proof of Van Riper's prior convictions at trial.

¶19. That one of Van Riper's convictions occurred in Minnesota does not change our decision….

¶20. The certified DOT transcript recites that Van Riper was convicted of "operating under influence" in Minnesota with a violation date of "11/21/89." Wisconsin's drunk driving statute, Wis. Stat. § 346.63, is entitled "Operating under influence of intoxicant or other drug." A subset of this statute, and one means of violating this statute, is operating a motor vehicle with a prohibited alcohol concentration. Sec. 346.63(1)(b). From this information, the trial court could reasonably conclude that the Minnesota laws governing drunk driving were substantially similar to Wisconsin's OWI laws.

Financial Responsibility for Damages > $1000 – Exception Where Vehicle Operated without Owner’s Permission, Proof of
Robert Plevin v. DOT, 2003 WI App 211
For Plevin: Steven Tilton
Issue/Holding: Where a vehicle is uninsured and involved in an accident causing more than $1,000 in damages, the owner must post security or face loss of driving privileges and vehicle registration suspension. ¶8. An exception exists where the vehicle was operated without the owner’s permission; DOT has enunciated the means of “acceptable proof” of this exception, Wis. Admin. Code § TRANS. 100.09 (letter from law enforcement stating that vehicle was reported stolen; letter from DA stating that complaint has been filed against operator; affidavit from operator stating that vehicle was operated without permission; or affidavit from owner stating that operator did not have permission). ¶9. DOT’s interpretation that these are the sole methods of proof is upheld, ¶17:
The language suggests that acceptable methods of proof satisfy a heightened standard above and beyond simple testimony at an administrative hearing. The rule requires either letters from a law enforcement agency or the district attorney or affidavits.
As a result the owner’s no-permission testimony at the administrative hearing can’t satisfy the required method proof.
(Hard to see, though why an affidavit represents “a heightened standard above and beyond simple [?] testimony at an administrative hearing,” unless for some reason the testimony isn’t under oath, or the owner not subject to cross-examination [but then again, an owner-affiant obviously isn’t, either]. It would be one thing if the declarant had to be from law enforcement, but an acceptable alternative is an affidavit from the owner. To say, then, that the owner’s affidavit satisfies proof-methodology but testimony doesn’t literally seems to elevate form over substance.)
OWI -- Multiple Enhancers -- §§ 346.65(2), 939.62
State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta
Issue/Holding:
¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney's penalty twice for count one of his judgment of conviction. We answer in the affirmative, and conclude that a defendant convicted of the crime of second-or subsequent-offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.
(§ 939.62(3) specifically excludes from the definition of “felony” and “misdemeanor” all “motor vehicle offenses under chs. 341 to 349.” The court construes this to plainly mean that OWI – a motor vehicle offense -- is plainly a crime subject to § 939.62, while at the same time prior OWIs (or other traffic offenses) may not themselves serve as enhancers. ¶20. Bottom line: OWI may be enhanced, but can’t be a § 939.62 enhancer. Who knew? And, State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992) limited to its facts, namely: no multiple enhancement only where “the predicate offense is for the same conviction.” ¶¶30-34.)

Government's Right to Prosecute Traffic Offenses
State v. Kevin C. Derksen, 2002 WI App 160
Issue/Holding: The constitutional right to travel doesn't include an unfettered right to drive a motor vehicle; the government has the right to regulate traffic and to prosecute violations.
Fleeing, § 346.04(3) -- Elements
State v. Thomas P. Sterzinger, 2002 WI App 171
For Sterzinger: Steven P. Weiss, SPD, Madison Appellate
Issue1: Whether fleeing, § 346.04(3) requires proof that the defendant knowingly "interfere(d) with or endanger(ed)" another.
Holding1Scienter is required, but is limited to a single element -- knowingly flee or attempt to elude -- and doesn't extend to "interfere with or endanger." ¶¶7-11.
Issue2: Whether fleeing, § 346.04(3), requires actual interference with or endangerment of another vehicle or pedestrian.
Holding2: Though the statute is ambiguous, its purpose -- penalizing risk-creating behavior such as increasing speed or extinguishing lights -- doesn't require that another person or vehicle be interfered with or endangered. ¶¶13-19.
The fleeing statute expressly requires "that he knowingly fled or attempted to elude ... so as to interfere with or endanger[.]" The court properly zeros in on "so as to," consults a dictionary, and determines that the phrase means "with the result or purpose." "Result," the court says, implies actual interference or endangerment but "purpose" merely implies an intended outcome. ¶12. The court goes with the latter, but overlooks thatSterzinger has in effect argued both definitions; the court is simply oblivious to the idea that even as "purpose" defeats "actual" interference / endangerment, it supports his other argument as to scienter. Sterzinger might lose on actual interference but should win on scienter.

Seaprately: for whatever it's worth, for federal purposes, fleeing is considered a "crime of violence," U.S. v. Rosa, 7th Cir No. 04-2929, 3/24/05.

Fleeing, § 346.04(3) -- Sufficiency of Evidence
State v. Thomas P. Sterzinger, 2002 WI App 171
For Sterzinger: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Evidence that the defendant rolled through two stop signs and drove down the center of a two-lane gravel road while attempting to elude an officer supports his conviction for fleeing.
OAR/OAS -- Rescission of HTO Status
State v. Jeremy J. Hanson, 2001 WI 70, 628 N.W.2d 759
For Hanson: James B. Connell
Issue: Whether DOT rescission of a defendant’s HTO status under § 351.09 “relates back” to the date of the charged offense so as to nullify that HTO classification and render him or her ineligible for enhanced sentencing.
Holding: “¶32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to ‘rescind’ and ‘rescission,’ we conclude that the effect of the Department's recalculation of Hanson's HTO status was an annulment and abrogation of that status from the outset of its existence. Consequently, when the circuit court sentenced Hanson, it could not properly treat him as an HTO, or for that matter as if he ever were an HTO. Hanson's rescinded HTO status can have no legal effect and Hanson must be treated as if it never existed.…
“¶38. As a consequence of the rescission of Hanson's HTO status, we conclude that the circuit court could not properly impose a criminal penalty based solely upon that status. The imposition of a criminal penalty based solely upon that status would be in excess of that authorized by the legislature and must be declared void pursuant to Wis. Stat. § 971.13.” (Because the record is unclear as to whether the enhanced sentence might be justifiable on some other possible basis, the matter is remanded for such a determination. ¶47.)
Hit-and-run - public premises.
State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999).
For Carter: Paul G. LaZotte.
Holding: Hit-and-run, § 346.67, applies to "premises held out to the public for use of their motor vehicles." The event occurred at a closed gas station; the court holds the element satisfied: " ... The premises is bordered by two city streets and abuts an alley in the rear. As such, it is easily accessed by the public. Although there were 'No Parking' signs on the premises, there were not any signs prohibiting trespassing or passing through the lot. Nor had the owner taken any steps, such as fencing, to keep the public off the property. Nor was there evidence that the owner had ever towed any vehicle from the property. In addition, the owner had posted a 'For Sale' sign on the property, making it reasonable to infer that the public was welcomed or invited to enter the premises and inspect the property."
OWI -- Second or Subsequent Offense, Prior Conviction – Foreign Case Resulting in “Court Supervision”
State v. Arthur C. List, 2004 WI App 230, PFR filed 12/22/04
For List: Joseph L. Polito
Issue: Whether an Illinois OWI charge resulting in court supervision is a “conviction” within the meaning of § 343.307(1)(d).
Holding:
¶5. List contends that under Wis. Stat. § 343.307(1)(d) only OWI offenses that result in formal conviction as defined by the laws of a foreign state count for the purpose of charging a Wisconsin OWI suspect. He asserts that court supervision is not a conviction under Illinois law. …

¶7. We conclude that the pertinent language of Wis. Stat. § 343.307(1)(d) is unambiguous …. We read "under the law of another jurisdiction" not as delimiting "convictions," but rather as introducing and pertaining to "that prohibits" and the remainder of the paragraph.

¶9. List's approach would require us to interpret the law of another state whenever an OWI defendant has received a penalty less than a judgment of conviction for a previous offense. ….

¶10. We turn instead to Wisconsin law to determine whether a disposition of court supervision in Illinois is a "conviction" for the purposes of arriving at the correct OWI charge. The traffic code 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, an unvacated forfeiture of property deposited to secure the person's appearance in court, the payment of a fine or court cost, or violation of a condition of release without the deposit of property, regardless of whether or not the penalty is rebated, suspended, or probated, in this state or any other jurisdiction.
Wis. Stat. § 340.01(9r). In List's case, his placement under court supervision was a result of a determination that he "violated or failed to comply with the law in a court of original jurisdiction." Id. The Illinois sentence was therefore a conviction as defined by Wisconsin law, and counts toward the determination of the severity of his penalty.
OWI -- Implied Consent, Driver’s Request for Additional Test, § 343.305 (5)(a), Made After Release From Custody – Timeliness
State v. Patrick J. Fahey, 2005 WI App 171
Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7.
Holding:
¶14      … The State, in keeping with the circuit court’s decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.

¶15      We conclude that the State’s interpretation is more reasonable ….

¶17      In interpreting Wis. Stat. § 343.305(5)(a), we also take into account that the issue is not whether a suspect may have an alternative test, but whether a police agency must provide an alternative test at no charge.  Our construction of the statute does not prevent suspects from obtaining evidence; rather, it places a reasonable limit on their ability to do so at taxpayer expense.  Fahey was free to obtain an alternative test, but it was too late to ask for one provided at agency expense. 

¶18      Our decision is narrow.  We hold that, where police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of Wis. Stat. § 343.305(5)(a).  We do not hold that police must honor all requests made while a suspect remains in custody.

In a footnote, comprised of 554 words of pure, unadulterated dicta, the court all but says that suppression isn’t available as a remedy for violation of the implied-consent law with respect to alternative testing, helpfully adding, “We choose not to resolve this issue,” ¶7 n. 3. Hey, thanks for sharing, anyway!
OWI -- Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)
State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn
Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.
Holding:
¶11. Although Wis. Stat. § 343.305(4) and (5) use the term "alternative test," it is clear from these provisions that the accused does not have a right to choose a test instead of the one the officer asks him or her to take; rather, the "alternative test" is in addition to that test. It is for this reason that the case law sometimes refers to the "alternative test" as the "second" or "additional" test. See, e.g., State v. Piddington, 2001 WI 24, 51, 241 Wis. 2d 754, 623 N.W.2d 528 ("second, alternative test"); State v. Renard, 123 Wis. 2d 458, 460, 367 N.W.2d 237 (Ct. App. 1985) ("additional test"). We will use the term "additional test" in this opinion.

¶31. Although we agree with Schmidt that Wis. Stat. § 343.305(5)(a) does not impose a timing requirement on the request for an additional test, we do not agree that he was therefore entitled to an additional test. The circuit court found that Schmidt repeatedly requested a breathalyzer test "rather" than a blood test: indeed, this was the wording of Schmidt's testimony as well as the officer's. The circuit court also found Schmidt did not request a breathalyzer test after he took the blood test. Based on these factual findings, we conclude as a matter of law that Schmidt did not request a test in addition to the blood test. The repeated requests Schmidt made before taking the blood test were for a breathalyzer test instead of the blood test, not in addition to the blood test; and, based on the circuit court's findings, Schmidt made no later request.

¶32. Because Schmidt did not request a test in addition to the blood test, the officer did not violate Wis. Stat. § 343.305(5)(a) by not giving him a breathalyzer test after the blood test. Therefore, although we have arrived at a different construction of the statute than did the circuit court, we affirm the circuit court's denial of Schmidt's motion to suppress the results of the blood test.

OWI -- Preliminary Breath Test, § 343.303 – Refusal, Support for Reasonable Suspicion for Blood Draw
State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:
¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation, that is, where the requesting officer wants to use the PBT result to support a drunk driving arrest or to support a non-consent blood draw. For example, do police officers act illegally when they "bust" a teenage drinking party and ask attendees to take PBTs? This is a routine procedure and the results are used to make a preliminary determination about which teens may have been drinking. We can discern no reasonable argument that police are acting illegally because they do not, under § 343.303, have "probable cause" to believe the teens have violated a drunk driving statute.

¶26. Accordingly, we conclude that Wis. Stat. § 343.303 does not prohibit the consideration of Repenshek's refusal to submit to a PBT for purposes of determining whether Repenshek's blood draw was supported by reasonable suspicion.

The court goes on to find reasonable suspicion, stressing Repenshek’s PBT refusal, along with the facts of the accident itself which suggested negligent operation, ¶¶29-30. In effect, the court’s conclusion is premised on the idea that § 343.303 doesn’t safeguard any right to refuse a PBT, see ¶24; otherwise, allowing a refusal to factor into reasonable suspicion would exact a penalty for an exercise of right. The reference to teenage drinking parties is interesting, if not downright odd, because it’s so far afield from notions of implied consent and the traffic code. Perhpas the analogy shows how willing the court might be to apply this case beyond its factual moorings; there certainly seems to be a good deal of ferment in the area of exigent circumstances, of which warrantless entry to investigate teenage drinking is a species -- for discussion on that topic, go here, scrolling down to State v. Shane M. Ferguson, 2001 WI App 102, summary. Note, though, that it’s not just the facts whose bounds the court has slipped, it’s also the statutory language itself which, as the concurrence cogently points out, ¶¶33-34, explicitly conditions the officer’s authority to request a PBT on probable cause (“If a law enforcement officer has probable cause … the officer, prior to arrest, may request …”).
OWI -- Implied Consent -- Non-English Speaking Driver
State v. Ibrahim Begicevic, 2004 WI App 57
For Begicevic: Donna J. Kuchler
Issue: Whether reading the “Informing the Accused” form in English to a non-English speaking driver was an unreasonable way of conveying required implied consent warnings.
Holding:
¶21. Kennedy did not attempt to obtain an interpreter. When Kennedy read the Informing the Accused in English, Gasse did not translate the form verbatim nor did he make an effort to explain the rights in the form in German to Begicevic. In Piddington, the trooper used speech-read, gestures and notes to communicate with Piddington. Additionally, he was assisted by a police officer who knew ASL and Piddington was given the opportunity to read the implied consent warnings and initial that he understood each paragraph. Kennedy's attempts to reasonably communicate with Begicevic fall woefully short of the standard set by the trooper in Piddington.4

¶23. … We are not persuaded that the exigency of blood alcohol dissipation excuses the officer's failure to attempt to locate an interpreter. The breath test was administered within one hour of Begicevic's arrest; the officer still had two hours in which an effort could have been made to locate an interpreter….

¶24. The bulk of the State's argument addresses whether Kennedy could reasonably believe that Begicevic had a sufficient understanding of English to comprehend the implied consent warnings. The argument ignores Piddington's admonition, "[w]hether [the apprehended driver] understood the warnings is irrelevant." Piddington, 241 Wis. 2d 754, ¶32 n.19.

¶26. Begicevic seeks suppression of the breath alcohol test results as a result of the officer's failure to reasonably convey the implied consent warnings to him. "Suppression of evidence is `only required when evidence has been obtained in violation of a defendant's constitutional rights, or if a statute specifically provides for the suppression remedy.'" State v. Keith, 2003 WI App 47, ¶8, 260 Wis. 2d 592, 659 N.W.2d 403 (citation omitted). Piddington clarifies that Begicevic is not entitled to the remedy he seeks. Piddington, 241 Wis. 2d 754, ¶34.
OWI -- Implied Consent Law -- Alternative Chemical Test
State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03
For Keith: Christopher A. Mutschler
Issue/Holding:
¶10 WISCONSIN STAT. § 343.305(5)(a) requires police to offer an alternative chemical test to persons who submit to a chemical test under § 343.305 and who request an alternative test. ...

¶12 The record shows that after Keith’s arrest, while traveling to the hospital, Keith asked the officer “if there were any tests that I could be taking.” The officer told Keith he was being taken to the hospital for a blood test. This exchange provides no indication that Keith found the officer’s response unsatisfactory or that Keith was requesting a test different than the one he was told would be administered at the hospital.

¶13 Keith also contends that Officer Ziorgen’s failure to read the entire “Informing the Accused” form to him constituted a failure to properly inform Keith of his right to request an alternative test. We reject Keith’s argument. Officer Ziorgen testified that he read the entire form to Keith. Keith testified that the officer read only part of the form. The circuit court believed Officer Ziorgen. We affirm that credibility finding because we cannot say that Officer Ziorgen’s testimony on this point is “inherently or patently incredible.” See State v. Daniels, 117 Wis. 2d 9, ¶17, 343 N.W.2d 411 (Ct. App. 1983). To the contrary, the record contains no reason to doubt the officer on this topic.

OWI -- Implied Consent -- Threat to Revoke Driver's License Arrest, Not Coercive
Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02
For Walitalo: Ralph A. Kalal
Issue/Holding:
¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation. See 3 Wayne R. LaFave, Search and Seizure, § 8.2(c) at 652-53 (3d ed. 1996). While police cannot use deceit or trickery, they are entitled to make true statements. Gautreaux v. State, 52 Wis. 2d 489, 494, 190 N.W.2d 542 (1971). Had Walitalo refused to submit to a blood test, he would have been subject to the penalties under Wis. Stat. § 343.305(10). Because there was no actual coercion or improper police conduct, we conclude that Walitalo's consent was voluntary.
(Note: This holding can, and will, be extended beyond OWI testing, most likely in the situation where the police threaten to get a warrant. LaFave (in the cite mentioned above) makes the point that a threat to obtain a warrant where one could not in fact be obtained (for example, where there's no probable cause, e.g., State v. Trecroci , 2001 WI App 126) is indeed coercive.)
OWI -- Implied Consent
State v. Paul J. VanLaarhoven, 2001 WI App 275
For VanLaarhoven: Michele Anne Tjader
Issue: Whether a blood sample, properly obtained under the Implied Consent law, may be analyzed without a warrant.
Holding: The Implied Consent law requires that all who apply for a driver's license consent not only to provide a sample, but also a chemical analysis of the sample. ¶¶7-8. More broadly: "the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant." ¶16. Thus, "law enforcement was permitted to conduct an analysis of VanLaarhoven's blood to determine if it contained evidence of a blood alcohol concentration in excess of the legal limit." ¶17.
OWI - implied consent law, application where driver not under arrest.
State v. Jack E. Thurk, 224 Wis.2d 662, 592 N.W.2d 1 (Ct. App. 1999).
For Thurk: Christopher A. Mutschler.
Holding: Following a vehicular homicide the culpable driver voluntarily accompanied an officer to the station and submitted to a chemical blood test. He seeks suppression, on the ground that he was denied a request for a breathalyzer as an alternate test. The COA rejects the argument, holding that he had no right to the alternate test because he wasn't under arrest. (The facts aren't recited in much detail, but the officer told Thurk he was not under arrest. For a case discussing in ambiguous circumstances at least some of the factors going to whether a suspect was "in custody" for Miranda purposes (and, therefore, arguably arrested), see State v. Gruen, 218 Wis. 2d 581, 594-96, 582 N.W.2d 728 (Ct. App. 1998).)
OWI -- Dual Prosecution
State v. Brad A. Raddeman, 2000 Wis App. 190
For Raddeman: Christopher A. Mutschler
Issue: Whether the state may prosecute both operating while intoxicated and prohibited alcohol concentration for the same act.
Holding: The offenses aren't the "same" either for double jeopardy (¶ ¶ 4-8) or due process (¶ ¶ 11-13) purposes.
OWI -- Notice of Intent to Revoke, Information Required, Technical, Nonjurisdictional Defect
State v. Stephen P. Gautschi, 2000 WI App 274, 240 Wis. 2d 83, 622 N.W.2d 24
For Gautschi: Ralph A. Kalal
Issue: Whether "the notice of intent to revoke his operating privilege failed to provide the information required by WIS. STAT. § 343.305(9)(a)5, thereby depriving the trial court of personal jurisdiction to revoke (Gautschi's) operating privilege." ¶ 1.
Holding: Although the notice contained a technical error, it was non-prejudicial and therefore did not result in loss of jurisdiction.
Analysis: § 343.305(9)(a)5 requires that "substantially all" the information recited therein be conveyed to the driver. The notice in this case did not adequately convey, in contravention of this requirement, that the driver would be able to challenge lawfulness of the arrest, and was "misleading regarding the permissible issues at a refusal hearing." ¶ ¶ 6-7. A deficiency does not, however, lead ineluctably to relief. A refusal is a special proceeding, § 801.01(2), with the notice to revoke akin to a summons. The court thus looks to cases discussing defective summonses. To cause a loss of personal jurisdiction, a deficiency must be either "fundamental" or, if merely technical, prejudicial. Here, the notice of intent to revoke fulfilled the purpose of § 343.305(9)(a), by providing meaningful notice to Gautschi of his right to a hearing, notwithstanding the failure to inform him of all possible issues that he might raise. The deficiency was therefore technical, not fundamental. The record shows no prejudice from this technical defect; he had the opportunity for a hearing, and wasn't precluded from challenging his arrest (the issue omitted by the notice). ¶ ¶ 8-15. The court, though, is careful to say that different facts might lead to a different conclusion: We do not conclude that the State could always demonstrate the lack of prejudice stemming from a notice worded as was Gautschi's. For example, the recipient of a similarly worded notice, who believes that the officer lacked grounds to stop and arrest him or her for OMVWI, may suffer prejudice if the person fails to file a timely request for a hearing because he or she did not understand that the issue could be raised at a refusal hearing. We suggest, therefore, that the Department of Transportation consider revising the notice form to more accurately reflect the issues that may be raised under WIS. STAT. § 343.305(9)(a)5.a. ¶ 15 n. 4.
OWI - Implied Consent
State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg
Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.
Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), State v. John C. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240 is met, “a forcible warrantless blood draw does not violate the Fourth Amendment … (a)nd it makes no difference whether the suspect refuses the primary breath test and then submits to the blood test (Bohling) or the suspect submits to the primary blood test (Thorstad).” ¶10. Unlike the defendants in those cases, Wodenjak asked for the alternative breath test first, but this factual distinction is insignificant: dissipation of blood alcohol constitutes an exigency that in and of itself justifies the draw under Bohling-Thorstad. “¶13. In summary, both the United States Supreme Court and the Wisconsin Supreme Court have put their constitutional stamp of approval on the warrantless taking of a blood draw subject to certain conditions and controls. Those conditions and controls do not require the police to consider alternate tests. Therefore, Wodenjak's request for the less invasive breath test and the availability of such a test did not deprive Berg of his authority to obtain a blood sample from Wodenjak under Bohling.” (Court noting, id. n. 8, that the implied consent law, § 343.305(2), doesn’t provide the arrestee with the option of selecting the test; Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998) distinguished).
OWI - Implied Consent Law - Right to Counsel.
State v. Dennis J. Reitter, 227 Wis.2d 213, 595 N.W.2d 646 (1999), on certification.
For Reitter: Michael C. Witt, Monogue & Witt, S.C.
Holding: "¶ 3 ... where a defendant expresses no confusion about his or her understanding of the statute, a defendant constructively refuses to take a breathalyzer test when he or she repeatedly requests to speak with an attorney in lieu of submitting to the test. We also hold that because the implied consent law creates statutory privileges, not constitutional rights, no due process violation occurs when an officer does not inform a defendant that the right to counsel does not attach to the stages preceding administration of a chemical test. The State should not be bound by a defendant's mistaken assumptions about his or her constitutional rights. In this case, the arresting deputy advised the defendant five times about the consequences of failing to take the breathalyzer test, and the deputy warned the defendant that continued insistence to speak with an attorney would be deemed a refusal. Accordingly, we affirm the circuit court."
OWI - Implied Consent Law - Threat to Use Force
State v. Donald Marshall, 2002 WI App 73, PFR filed 2/28/02
For Marshall: Richard L. Zaffiro
Issue: Whether, after the OWI arrestee refused consent for a blood draw, the police could then obtain “consent” for the draw by threatening to use physical force.
Holding: Marshall’s argument that § 343.305(9)(a), by providing the exclusive police option for refusal, bans such a threat has been rejected by State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73. 7-10:
“¶12. Thus, because a forcible warrantless blood draw does not violate the Fourth Amendment if the conditions specified in Bohling are satisfied, see State v. Wodenjak, 2001 WI App 216, 10, 247 Wis. 2d 554, 634 N.W.2d 86, applying the rationale of Gibson, we are satisfied that even if an arrestee refuses to submit to a voluntary blood test, an officer may acknowledge the refusal, complete the ‘Notice of Intent to Revoke Operating Privilege’ form as provided by Wis. Stat. § 343.305(9)(a), and then proceed with an involuntary blood test as the basis for the operating a motor vehicle with a prohibited blood alcohol concentration (PAC) charge and in support of the operating a motor vehicle while intoxicated charge.
“¶13. However, the following question naturally arises: What is the significance of having the right to refuse voluntary chemical testing, when law enforcement may force testing regardless of consent? … The answer is that a driver who refuses to submit to chemical testing faces certain risks and consequences that are entirely independent from the OWI/PAC offense. …(W)hile the implied consent statute provides an incentive for voluntary chemical testing, i.e., not facing civil refusal procedures and automatic revocation, voluntary testing is not the exclusive means that blood, urine or breath samples may be constitutionally obtained.”
(Note: Two of the three judges on the panel (Curley and Schudson) say that Gibson conflicts with prior case law, County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), but that as the more recent decision, Gibson must be followed. ¶17. Judge Schudson’s concurrence flatly says that Gibson was wrongly decided and should be overturned by the supreme court. Judge Fine’s concurrence says that Gibson is correct.)
OWI -- Amended Information to Include Impairment by Controlled Substance
State v. Jeffrey S. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73
For Gibson: Ann N. Knox-Bauer
Issue: Whether blood taken after an initial refusal should have been suppressed under the implied consent statute, on the theory that revocation of license is the only penalty for refusal.
Holding: “¶12 Applying the rationale of Bohling, Zielke and Thorstad, we are satisfied that the implied consent statute does not restrict the police from using other constitutional means to collect evidence of the driver’s intoxication. Because Gibson does not challenge the blood test as an unreasonable search in violation of the requirements set forth in Bohling, the trial court properly denied Gibson’s motion to suppress the blood test result.”
OWI -- Implied Consent
State v. Jeffrey S. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73
For Gibson: Ann N. Knox-Bauer
Issue: Whether the information was properly amended, after close of evidence, to allow the jury to consider whether the defendant driver was under the influence of a controlled substance as well as an intoxicant.
Holding: Yes: The defense itself introduced ingestion of a controlled substance as a defense, after being put on notice that such a defense would lead to an amended information; the amendment didn’t change the nature of the crime; § 346.63(1)(a) sets forth only one offense (driving under influence of intoxicant, controlled substance, or combination); and, Gibson’s bac, .248%, was more than sufficient itself to support conviction, quite independent of the controlled substance.
OWI/PAC: Lesser Included Offenses
State v. James B. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42
For Smits: Michael J. Ganzer
Issue: Whether operating under the influence (OWI), § 346.63(1)(a) and prohibited alcohol concentration (PAC), § 346.63(1)(b), are lesser included offenses of OWI/PAC-causing injury.
Holding: No. The injury-related offenses require proof of an element (operation of a “vehicle”) not required of the other offenses (operation of a “motor vehicle”), ¶¶12-16. Also, PAC contains an element that PAC-injury doesn’t (number of prior convictions), ¶¶17-23. And, OWI and PAC are felonies while OWI/PAC-injury are misdemeanors (a lesser offense must be lesser in magnitude of punishment), ¶¶24-28.
OWI -- Informed Consent Warnings
State v. William K. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302
For Nord: Timothy J. O’Brien
Issue: Whether the implied consent statute, § 343.305(4) violates due process by providing misleading information regarding the consequences for taking or refusing the test.
Holding: The warning that the motorist “will be subject to other penalties” beyond revocation doesn’t overstate the consequences for refusal, because refusal can result in substance assessment, treatment, and seizure of the vehicle (the court construing “penalties” to mean “consequences” as opposed to “a narrow, hypertechnical definition” limited to “punishment”). ¶¶8-10. Nor does the warning understate the consequence for consenting, in that it adequately conveys the potential for incarceration if the test result exceeds the legal limit. ¶¶11-14.
OWI - Informed Consent, Hearing Impaired Driver
State v. Michael S. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, affirming State v. Piddington, 2000 WI App 44, 233 Wis.2d 257, 607 N.W.2d 303
For Piddington: Michelle Ann Tjader
Issue: Whether BAC results were suppressible because the profoundly deaf defendant could not have heard the implied-consent law recitation of rights.
Holding: “We hold that § 343.305(4) requires the arresting officer under the circumstances facing him or her at the time of the arrest, to utilize those methods which were reasonable, and would reasonably convey the implied consent warnings. In determining whether the arresting officer has used reasonable methods which would reasonably convey the necessary information in light of the pertinent circumstances, the focus rests upon the conduct of the officer. We thus agree with that part of the circuit court's findings that ‘the attempts of law enforcement to communicate with the defendant were reasonable under all the circumstances, perhaps even exemplary . . . .’ (R. at 28:1-2.) The law enforcement officers here used reasonable methods to convey the required implied consent warnings, and, accordingly, we affirm the court of appeals. The test results should not have been suppressed.” ¶1.
Analysis: Piddington argues that he was entitled to an ASL interpreter, because ASL is his primary form of communication; the state argues (and the court of appeals agreed) that the officer need only “orally inform” an arrestee of rights and responsibilities under the implied consent law. The supreme court rejects both positions, sort of. As the court says, prior cases discuss what, while this case concerns how, information must be conveyed. Analogy to Miranda warnings is partially helpful: “¶22. Despite the significant distinction between Miranda and implied consent warnings, they share the common purpose of informing the accused. Considering that similarity, we conclude that whether law enforcement officers have complied with Wis. Stat. § 343.305(4) turns on whether they have used reasonable methods which would reasonably convey the warnings and rights in § 343.305(4). As in Miranda-type cases, the State has the burden of proof of showing, by a preponderance of the evidence, that the methods used would reasonably convey the implied consent warnings. See Santiago , 206 Wis. 2d at 19. Also, in the implied consent setting, as well as in the Miranda setting, the onus is upon the law enforcement officer to reasonably convey the implied consent warnings. See id.” The emphasis, then, is on the officer’s efforts, not the driver’s comprehension. And while those efforts must be genuine, they therefore needn’t be demonstrably successful: “The State cannot be expected to wait indefinitely to obtain an interpreter and risk losing evidence of intoxication. Such would defeat, rather than advance, the intent of the implied consent law "to facilitate the gathering of evidence against drunk drivers in order to remove them from the state's highway." Zielke, 137 Wis. 2d at 46. The approach we adopt today only ensures that barriers which may affect the arresting officer's ability to reasonably convey the implied consent warnings to an accused driver, such as one with impaired hearing, are taken into account and accommodated as much as is reasonable under the circumstances.” ¶28. (For fact-specific reasons, the officer’s efforts here were reasonable. ¶¶29-32.) Nor, in any event, would suppression necessarily be the appropriate remedy even if these efforts had been unreasonable. ¶¶ 34-35. (This observation is equally applicable to Piddington’s separate argument that he was improperly denied an alternative test. ¶¶51-54.) The court goes on to reject due process, equal protection, and ADA challenges. ¶¶ 37-49.
The Piddington test for gauging reasonableness of efforts to convey implied consent warnings has been adopted in Iowa, State v. Garcia, Iowa SCt No. 06-2110, 9/19/08.
OWI -- Graduated Penalty Structure
State v. Henry T. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12
For Skibinski: Karma S. Rodgers
Issue: Whether a trial court can, after findings of guilt on second and third offense OWI, apply the increased penalties of OWI-3rd to both offenses at sentencing.
Holding: For several reasons, the sentence for OWI-2nd was limited to the applicable penalty for that discrete offense, even though the defendant was simultaneously being sentenced for OWI-3rd: a prior conviction is an element of OWI, so that when defendant was found guilty of OWI 2nd, he only had one prior OWI; an OWI graduated penalty requires a conviction, which in turn requires a sentence; otherwise, the penalty scheme would be subject to challenge on void-for-vagueness grounds; otherwise, the legislative directive -- a graduated scheme of deterrence built into increasing penalties -- would be vitiated, ¶¶8-13. Because the trial court imposed sentence thinking that the increased penalty for OWI-3rd applied to both offenses, resentencing is required in both cases, ¶14.
(Note: The court of appeals had previously reversed the circuit court on this same issue in an unpublished opinion; the circuit court indicated -- quite properly -- that it wasn’t bound by this result. The court of appeals nonetheless expressly “concurs with, and borrows liberally from, the reasoning set forth in the one-judge opinion.” ¶4 n. 4. Does this mean a litigant can also borrow liberally and expressly from an unpublished opinion without risking sanction for violation of the no-cite rule? Wouldn’t bet on it.)
OWI -- PBT -- Probable Cause to Administer
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Authority to administer a preliminary breath test requires probable cause to believe a drunk driving law has been violated. ¶23. Probable cause existed here, given the driver's (mild) odor of intoxicants; the "suspicious circumstance" of the collision (i.e., with a child on an unobstructed street, and the driver allegedly watching for children); and the fact "that Colstad erred on each of the sobriety tests." ¶25.
OWI -- Refusal -- Right to Counsel
State v. Richard L. Verkler, WI App 37
For Verkler: Christopher A. Mutschler
Issue/Holding:
¶1. In State v. Reitter, 227 Wis. 2d 213, 217-18, 595 N.W. 2d 646 (1999), our supreme court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the implied consent setting. However, the court also appears to have held that, as a matter of due process, if an officer either explicitly assures or implicitly suggests that a custodial defendant has a right to counsel, then the officer may not thereafter mark down a refusal if the defendant acts upon that assurance or suggestion. See id. at 240-42. The defendant in this case, Richard L. Verkler claims that the officer, by his actions, at least implicitly suggested that Verkler had the right to consult with an attorney before deciding whether to submit to a breath test. Verkler further contends that the officer then marked him down as having refused because he insisted on consulting with his attorney first. We do not agree that the officer implicitly suggested a right to counsel before taking the test. In fact, the facts show that just the opposite occurred. We affirm.
For a different result, albeit under state rather than federal constitution, see State v. Durbin (Ore. 2/13/03):
In summary, we hold that a driver arrested for DUII has, upon invoking the right to counsel, the right to a reasonable opportunity to consult privately with counsel before deciding whether to submit to a breath test. To obtain evidence of an arrested driver's blood alcohol level without violating the driver's right to counsel, police might find it preferable to inform the driver of their intent to administer the breath test and then, if the driver requests counsel, to allow the driver a reasonable time in which to seek legal advice, in private, before beginning the required observation period.
OWI -- Refusal, § 343.305(9) -- Summary Judgment
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt
Issue/Holding: Because ch. 343 does not require responsive pleadings that would allow the court to determine if there is a material issue of fact or law, summary judgment is inapplicable in ch. 343 hearings. ¶11, State v. Schneck, 2002 WI App 239 (no summary judgment in traffic forfeiture, ch. 343 proceedings, followed).
OWI -- Refusal, § 343.305(9) -- Misleading Advice
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt
Issue/Holding:
¶14. While the officer was mistaken regarding the right to require Baratka to perform field tests, there was no misinformation regarding the request for chemical testing. The officer's right to request the test was properly stated when the officer read the Informing the Accused form. In fact, Baratka does not identify how any misinformation about the field tests affected his understanding of the chemical testing.

¶15. Additionally, Baratka argues that he never verbally or physically refused testing. However, when asked to submit to a test, rather than respond he twice requested to speak to an attorney. Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Reitter, 227 Wis. 2d 213, 235, 595 N.W.2d 646 (1999). The officer did so inform Baratka. We therefore conclude that the evidence supports the trial court's finding that Baratka refused chemical testing, and its order revoking Baratka's operating privileges.

OWI -- Sentencing -- Differential, County-Based Guidelines
State v. Roland Smart, 2002 WI App 240
For Smart: Donald T. Lang, SPD, Madison Appellate
Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as "(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions." ¶6. The guidelines' function is to reduce sentencing disparity among persons who commit similar offenses. Although "the statute may not be the best way of reducing drunk driving sentencing disparity, a rational basis inquiry does not require perfection." The statute thus need only bear "some relationship to advancing" its goal; this one does -- though a statewide system might be more equitable -- because it attempts to reduce disparity within judicial districts. ¶7. The analysis for substantive due process is the same. ¶12.
(Note: The statute is supposed to reduce, but is effectuated so as to increase, disparity. The court finesses this problem by focusing on reduced disparity within, while ignoring increased disparity across, districts. Why isn't it arbitrary for someone to get more time simply because he or she was picked up just on one side of a county line?

Update: Holding approved, State v. Patty E. Jorgensen, 2003 WI 105.)

OWI -- Special Prosecutor
State v. Michael J. Carlson, 2002 WI App 44, PFR filed 1/17/02
For Carlson: Christopher A. Mutschler
Issue: Whether the trial court lacked authority to appoint a special prosecutor for this OWI offense because it was a civil case.
Holding: “¶9. In the case at bar, the appointment was made by the court on its own motion. A plain reading of the statute tells us that when a court makes this appointment on its own motion, all that is required of the court is that it enter an order in the record ‘stating the cause therefor.’ Wis. Stat. § 978.045(1r). Then, the appointed special prosecutor may ‘perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney.’ Id. In short, if a court makes a special prosecutor appointment on its own motion, it is constrained only in that it must enter an order in the record stating the cause for the appointment. Here, the court fulfilled its duty by stating on the record that it was appointing a special prosecutor and giving its reasons why….”
OWI -- Due Process
State v. Michael J. Carlson, 2002 WI App 44, PFR filed 1/17/02
For Carlson: Christopher A. Mutschler
Issue: Whether Carlson was entitled to have his refusal charge dismissed with prejudice because his driver’s license was improperly revoked for nineteen days before he was granted a hearing.
Holding: Due process protections -- with respect to a hearing before loss of particular interests -- are afforded under Mathews v. Eldridge, 424 U.S. 319 (1976). ¶12. Stressing the specific facts of this case (including loss of driving privileges for 19 days, and trial court’s recognition of error and grant of relief in form of hearing), the error was technical and nonprejudicial, and doesn’t warrant dismissal with prejudice. ¶¶20-27.
OWI -- Unauthorized Sentence -- Probation without Mandatory Minimum Confinement for OWI 6th -- Resentencing as remedy
State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker
Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).
Holding: "¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period. Here Wis. Stat. § 346.65(2)(e) requires that a defendant be imprisoned for at least six months for fifth or greater offense PAC. Eckola was convicted of sixth offense PAC. Therefore, the court was required to confine Eckola for at least six months as a condition of probation.
"¶16. When the circuit court has made an error that underlies the exercise of its discretion, we may not exercise the court's discretion for it. Rather, we are to remand to permit the court to exercise its discretion. Wisconsin Ass'n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434-35, 293 N.W.2d 540 (1980). We therefore reverse and remand for resentencing."