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Various challenges to OWI conviction rejected

State v. Kody R. Kohn, 2020AP2147-CR, District 2, 9/22/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Kohn argues the circuit court erred in: 1) denying his motion to suppress evidence obtained from the blood drawn from him after his arrest; 2) excluding exhibits he wanted to use to cross examine the state’s blood analyst; and 3) rejecting his motion to dismiss a bail jumping charge. The court of appeals affirms all the circuit court’s decisions.

The motion to suppress the evidence from the blood draw argued the informing the accused form’s reference to a driver being “subject to other penalties” for refusing a test is “coercive and misleading.” Not so, says the court; it just tells the person he or she will be subject to penalties in addition to license revocation, which is both accurate and not an explicit or implicit threat of criminal penalties. (¶¶14-21).

Next, Kohn wanted to examine the blood analyst with the lab report, documents related to the blood sample test results, and maintenance records for the machine used to test his blood. But he didn’t disclose those documents to the state in response to its reciprocal discovery demand, and so the circuit court excluded them as a sanction under § 971.23(7m). The court of appeals rejects Kohn’s arguments that, as lab-produced documents, they weren’t in his “possession, custody, or control” and weren’t the product of testing done by a defense expert. It also rejects his claim that his belief he didn’t have to disclose them based on his interpretation of § 971.23(2m) constituted good cause. Finally, the exclusion of the documents didn’t violate his due process right to fully cross-examine the blood analyst, as Kohn was still able to question the analyst about the topics covered by the documents. (¶¶22-33).

Finally, Kohn sought to dismiss or to get a judgment notwithstanding the verdict on an associated bail jumping charge for committing a new crime while on bail. At the time of the OWI in this case, he was out on bond in a misdemeanor case, but his first offense OWI was still pending and he had not yet been convicted. Thus, when he committed the OWI that is the predicate of the bail jumping in this case, that OWI wasn’t (yet) a criminal offense, and therefore he couldn’t be guilty of bail jumping for that conduct because he didn’t commit a crime or intend to commit a crime. Not so, says the court, applying State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993), which broadly defines “crime” for purposes of § 969.02(4)—broadly enough to include an OWI that could result in criminal charges because of the pending forfeiture offense. (¶¶34-46).

{ 1 comment… add one }
  • Anon September 29, 2021, 9:19 pm

    The court of appeals in a later case admitted that West definition of “crime” for the purposes of the bail jumping statute was wrongly decided. State v. Hauk, 2002 WI App 226, ¶17, fn.3, 257 Wis. 2d 579, 652 N.W.2d 393. I guess no party brought this to the attention of the judge here.

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