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Defense win! COA affirms suppression of breath and blood tests due to DA’s errors

State v. Craig R. Thatcher, 2020AP1734, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs).

A state trooper stopped Thatcher for a suspected OWI, the trooper read the Informing the Accused Form, and, according to Thatcher, provided additional, misleading information that influenced his decision to consent to a breath test in violation of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995). The court of appeals affirmed the circuit court’s decision to suppress the results of the breath test and also the results of the subsequent blood.

The State appealed the circuit court’s decision and lost again. The court of appeals focused less on the merits of the Quelle claim and more on the State’s fumbled e-filing of its response to Thatcher’s suppression motion.

Beware the hazards of e-filing! This is the second time in a month that the court of appeals has issued a decision addressing botched e-filings in the circuit court. The other decision, which is recommended for publication, is here.

The circuit court held an evidentiary hearing on Thatcher’s suppression motion and then ordered the State to file a response by August 7, 2020, and Thatcher to file a reply 10 days later.  On August 7th the State filed a brief that had an “introduction” but no “facts” or “argument” section. Uh oh. Click here to see the sorry state of the State’s brief.

Thatcher filed a reply as ordered. A month later the circuit court issued a decision granting suppression. The adverse decision prompted the State to file a “corrected” brief that included “facts” and “arguments” to file a motion for reconsideration and an explanation. It had inadvertently uploaded a draft of its response brief rather than its actual response brief.

Too bad. The circuit court stood by its original decision, and the court of appeals affirmed.  The circuit court appropriately refused to develop arguments on the State’s behalf and concluded that the State chose to abandon its challenge to Thatcher’s motion, per  Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82. Opinion, ¶19.

The court of appeals also held that the State failed to meet the test for reconsideration. It did not present newly discovered evidence or show a manifest error of fact or law. Opinion, ¶¶21-23.

After the breath test, Thatcher asked for a secondary chemical test of his blood, and law enforcement complied with his request. Because the blood results clearly owed their discovery to inadmissible breath test results, the court of appeals held that they, too, must be suppressed under the “fruit of the poisonous tree” doctrine in State v. Knapp, 2005 WI 127, ¶24, 285 Wis. 2d 86, 700 N.W.2d 899. Opinion, ¶26.

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