On Point

Oconto County v. Robert E. Hammersley, 2013AP1263, District 3, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity

The 10-day time period to request a refusal hearing under § 343.305(10)(a) begins when the driver receives a copy of the notice of intent to revoke, not when the court receives a copy. Thus, where a notice of intent to revoke was filed in the circuit court well after the statute’s 10-day time limit had elapsed, the trial court did not err in entering a revocation order without waiting for another 10 days to elapse:

¶10      In this case, the notice of intent to revoke stated Hammersley received the notice on October 28, 1995. Accordingly, Hammersley had ten days after October 28, 1995 to request a hearing. The date the court received its copy of the notice of intent to revoke [December 7, 1995] is immaterial. Once Hammersley failed to request a hearing within ten days [of October 28, 1995], the court was required to revoke Hammersley’s driver’s license, which it did on December 12, 1995. The court did not prematurely enter the default revocation order against Hammersley.

Because a circuit court loses competence to consider a refusal allegation if a defendant fails to request a hearing within ten days, Village of Elm Grove v. Brefka, 2013 WI 54, ¶44, 348 Wis. 2d 282, 832 N.W.2d 121, once Hammersley failed to request a refusal hearing within ten days, the court lost competence to consider any objection to the implied consent law violation and was required to enter a default order revoking Hammersley’s driver’s license. (¶14).

Those dates are not typographical errors: Hammersley filed a motion for relief from the 1995 revocation order in December 2012. (¶4). While the court expresses “serious concerns” about the ability to bring a motion for relief 17 years later (¶13), it resolves the case solely on Hammersley’s failure to file a timely request for a refusal hearing back in 1995.

State v. Delano W., 2013AP2445 & 2013AP2446, District 1, 3/14/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP2445; 2013AP2446

The trial court did not violate Delano’s due process rights and properly exercised its discretion when it prohibited Delano from visitation with his children pending the trial on a petition to terminate his parental rights to those children.

Under § 48.42(1m), a circuit court may prohibit a TPR respondent from visitation while the proceeding is pending if it is in the child’s best interests. The circuit court initially suspended Delano’s visitation at a permanency planning hearing in July–at which Delano did not appear–and kept that order in place after two more hearings–one in August, the second in September–after Delano requested reconsideration of the visitation suspension. (¶¶6, 15-21). Delano argued his due process rights were violated because he didn’t have sufficient notice of the July hearing, let alone that it would address suspension of visitation, and because, at the two subsequent hearings, the court had already decided to suspend visitation and improperly shifted the burden to Delano to prove he deserved visitation. (¶¶9, 14).

The court of appeals agrees Delano didn’t have notice the court would address suspension of visitation at the July hearing, but finds no due process violation. Delano had notice there would be a permanency hearing and was advised of his obligation to make his court appearances; moreover, at the July hearing the trial court properly found that an emergency existed and that the children’s best interests required suspension, but also indicated it would revisit that order at Delano’s request. (¶¶15-22). At the two subsequent hearings, the record demonstrates the court had not already made up its mind to continue the suspension of visitation. (¶¶23-25). Therefore, “Delano had a timely and meaningful opportunity to be heard and present his case on August 20th and September 18th.” (¶25). And the trial court properly concluded that the children’s best interests compelled the suspension of visitation. (¶¶26-37). At all three hearings, “the circuit court applied the proper law—the best-interests-of-the-child standard—and rationally determined based on the facts in the record that the children’s best interests warranted the suspension. Thus, the circuit court properly exercised its discretion in suspending visitation on all three occasions.” (¶38). 

The court also concludes there was sufficient credible evidence supporting the jury’s finding that Delano failed to assume parental responsibility. In particular, Delano’s periods of incarceration, caused by repeated violations of his rules of supervision and new criminal conduct, resulted in little contact with his children, a concomitant lack of ability to bond with them and, according to the state’s witnesses, “anxiety behaviors” from the children when they did visit with Delano. (¶¶39-61).

State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity

This was a potentially interesting Daubert case.  The police stopped the car Litke was driving because a tail light was out.  The officer noticed Litke’s bloodshot eyes and asked if he had been drinking.  “Yes, a few beers,” Litke replied.  The officer thus conducted 3 field sobriety tests:  the Horizontal Gaze Nystagmus test (which Litke flunked), the Walk and Turn test (which he passed), and the  One Leg Stand test (which he performed so-so).  The officer concluded that she had probable cause to administer a PBT, which confirmed a .149 blood alcohol level and led to Litke’s arrest.

Litke challenged the HGN evidence arguing that the results were unreliable and the officer who testified about them lacked the scientific knowledge or training required of an expert under § 907.02 or Daubert. The State stipulated that the officer didn’t meet Daubert‘s test, so the court excluded the testimony, and held that the remaining evidence did not justify the administration of a PBT.

On appeal the State argued that the court should have considered the HGN test results because the rules of evidence, including § 907.02 and Daubert, do not apply in suppression hearings.  (If you’re thinking “waiver,” well so was Litke’s lawyer! Check out his brief.) The court of appeals totally ducked the issue and held, essentially, who needs the HGN test?!

This court concludes that Officer Zeise had the requisite probable cause even if the evidence resulting from the HGN test is disregarded . . . Several facts found by the trial court support this conclusion.  First, Officer Zeise observed Litke driving a car late on a Friday night without the required illuminated headlights.  Second, Litke did not initially look at Officer Zeise, and when he finally did so, his eyes were bloodshot and glassy.  Third, Litke admitted to consuming alcohol at a fish fry about several hours before the stop and again while at a bowling alley.  Fourth, Litke, in performing the One-Leg-Stand test, wobbled slightly and raised his arms from his side in order to keep his balance.  When analyzed in the context of the entire record—including the evidence not supporting probable cause—and Officer Zeise’s years of experience, including the fact that she had completed more than 1200 traffic stops and had conducted between forty and fifty field sobriety tests, see Kutz, 267 Wis. 2d 531, ¶12, the aforementioned facts show that Officer Zeise had probable cause to administer a preliminary breath test.    Slip op. at ¶17.

State v. Daniel M. Hirsch, 2014 WI App 39; case activity

The equal protection clause isn’t violated by § 343.307(1)(d)‘s differing treatment of Wisconsin and out-of-state” zero tolerance” OWI offenses (which penalize drivers under the legal drinking age who drive with any alcohol concentration).

Hirsch had two prior driver’s license suspensions for violation Illinois’s zero tolerance law. Under § 343.307(1)(d), those suspensions count as prior OWI offenses, but violations of Wisconsin’s absolute sobriety violations do not count. State v. Carter, 2010 WI 132, ¶¶56, 59-64, 330 Wis. 2d 1, 794 N.W.2d 213. Hirsch argues this distinction violates equal protection by irrationally treating similarly situated people differently: Drivers with in-state absolute sobriety offenses and those with prior out-of-state zero tolerance offenses have engaged in the same conduct; given their similar characteristics, there is no rational basis for different treatment because distinguishing the two groups does not advance the purpose of the OWI laws, which is the identification and removal of drunk drivers from the roads. (¶7).

The rational basis test is deferential, asking only whether the statute has some relationship to advancing the legislature’s goal. State v. Smart, 2002 WI App 240, ¶7, 257 Wis. 2d 713, 652 N.W.2d 429. (¶12). Noting that in 1989 the legislature removed the requirement that out-of-state OWI violations would count as a prior only if the out-of-state statutes were “in conformity” with Wisconsin law, the court finds there is a rational basis for the legislature to have dispensed with the conformity requirement: 

¶10      …. It was reasonable to eliminate the conformity requirement between Wisconsin offenses and the countless other variations of these types of offenses, when our legislature has no authority over how they are defined and applied by prosecutors and the courts, much less how other jurisdictions might redefine or apply such offenses over time. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. And, counting all such convictions serves the public good because an exception could lead to undercounting offenses that are defined or applied differently.

¶11      The statute’s classification of offenses is germane to the purpose of the law, which is “to encompass a broad array of convictions, suspensions, and revocations under the laws of another jurisdiction for counting purposes.” [Carter , 330 Wis. 2d 1, ¶63]. A broad interpretation of Wis. Stat. § 343.307(1) comports with the purpose of drunk driving laws, State v. List, 2004 WI App 230, ¶11, 277 Wis. 2d 836, 691 N.W.2d 366, which is to “facilitate the identification of drunken drivers and their removal from the highways,” State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828 (1980). Thus, out-of-state convictions can be counted for sentence enhancement purpose even if they result from violations of statutes that differ significantly from our own. See State v. Puchacz, 2010 WI App 30, ¶¶12-13, 323 Wis. 2d 741, 780 N.W. 2d 536 (counting violations of Michigan’s law that prohibits operating a vehicle while visibly impaired due to consumption of alcohol).

The court also rejects Hirsch’s issue preclusion claim, which is based on the fact that in his three previous Wisconsin OWI cases the state conceded the Illinois zero tolerance violations didn’t count under Wisconsin law. (¶2). Two of the relevant five factors under Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993), support the conclusion that issue preclusion is inappropriate. (¶¶13 n.4, 14). First, the state’s concessions came before Carter, 330 Wis. 2d 1, ¶¶38, 43, 59, changed the law by interpreting “convictions” to be counted under § 343.307(1)(d) to include suspensions under the Illinois zero tolerance law. (¶16). Second, as already discussed in the equal protection analysis, public policy supports counting out-of-state zero tolerance type offenses as prior offenses in OWI cases. (¶17).

John M.S. v. Marcy J.S., 2013AP2644-FT, District 2, 3/12/14; court of appeals decision (1-judge; ineligible for publication); case activity

Father’s petition under § 48.13(4) was insufficient because it fails to provide reliable and credible information and contain facts alleging that (1) the child “is in need of protection or services which can be ordered by the court” and (2) the parent “is unable or needs assistance to care for or provide necessary special treatment or care” for the child, State v. Courtney E., 184 Wis. 2d 592, 600, 516 N.W.2d 422 (1994); § 48.255(1)(e).

While the petition alleges the child has a need for mental health treatment, the facts alleged in the petition show he is receiving treatment: “Despite the loaded characterization that Luke [the child] is ‘flip-flopping’ therapists ‘at the direction of Marcy,’ this is in fact a statement that Marcy is attending to Luke’s need for therapy/treatment. ‘Flip-flopping’ leads to no inference other than at some point prior to the filing of the petition Marcy either changed therapists for Luke altogether or began having him see more than one therapist.” (¶7). Nor does the petition show John is unable, or needs assistance, to provide care or treatment, or what efforts he has taken to address Luke’s particular needs; instead, it states he is unable to address Luke’s needs “unilaterally” because “Marcy is commandeering schooling and treatment choices.” (¶¶3, 10). This shows John’s wish he had sole custody so he could make unfettered decisions about Luke, but he doesn’t allege a reasonable (or any) effort to obtain that goal in family court or why such an effort might not be sufficient. (¶10).

The legal issue resolved, the court does a bit of editorializing:

¶11      On the face of the petition, the only need Luke has which is not being addressed is the need for two parents to express their love for him by working with each other in a cooperative manner focused on Luke’s best interests. No court or government agency can provide that. Only John and Marcy can.

Town of Stettin v. Hoeppner, Appeal No. 2103AP1201, 3/11/14, District 3 (1-judge, ineligible for publication); case activity

The Hoeppners found themselves on the wrong side of an action seeking judicial enforcement of certain town ordinances.  When they settled the case, they stipulated to a finding that they were in contempt and to the conditions they had to perform in order to purge the contempt.  Then they failed to purge their contempt, so the court imposed monetary penalties and authorized the Town to remove property from the Hoeppner’s premises.  Naturally, the Hoeppners objected and claimed the circuit court failed to determine whether (a) they could satisfy the purge conditions, and (b) they had purged their contempt.  The court of appeals held that the settlement agreement precluded both arguments:

We conclude the Hoeppners are precluded from arguing the court failed to ensure they would be able to meet the purge conditions.  The Hoeppners stipulated to the court’s finding of contempt and agreed to the purge conditions in the court’s September 24, 2010 order.  See Racine Cnty., 122 Wis. 2d at 437 (On appeal, “‘[one] cannot be heard to complain of an act to which he [or she] deliberately consents.’” (citation omitted)).  The Hoeppners cannot now argue they were unable to meet the conditions. Slip op. at  ¶14.

First, . . . the Hoeppners agreed to the order that automatically authorized the Town to enter the Hoeppners’ premises after June 24 to remove the property.  The Hoeppners do not address the court’s finding or reasoning on appeal.  See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (ignoring ground upon which circuit court ruled constitutes concession of the holding’s validity).  Second, and in any event, after the Hoeppners made this argument in the circuit court, the court also found the Hoeppners did not comply with its order and remove the property before June 24.  The Hoeppners do not address the court’s finding on appeal.  See id.  We will not consider their argument further.  Slip op. at ¶16.

State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:

• Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’ property in James’s residence. (¶21). While the police may have found the stolen goods at James’s residence, and while the victims may have believed, by the time trial occurred, that police found their stolen items at James’s residence, there’s no evidence establishing that police told the victims where their belongings were found; in fact, police witnesses testified that they did not inform the victims where the property was found. (¶22). Thus, there would have been no merit to objecting to evidence about the array. (¶23).
• Failing to object to prosecutorial misconduct–namely, putting in “false” testimony in the form of testimony by one witness that was inconsistent with the witness’s testimony at the preliminary hearing. (¶15). There would have been no merit in raising this objection because the testimony wasn’t inconsistent; rather, his trial testimony simply elaborated on the information he provided during his “brief” preliminary hearing testimony. (¶¶16-18). Nor did the prosecutor “vouch” for a state’s witness by arguing in closing reasons why the witness should be deemed to be credible. (¶¶19-20).
• Failing to impeach a witness for saying James had a “birthmark” on his face that he doesn’t have. “James cannot prove prejudice, however, because James appeared in front of the jury at trial. The jury saw James and his birthmark (or lack thereof) for itself, and counsel was not ineffective for failing to draw attention to it.” (¶26).