On Point

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.

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.

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.

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).

State v. Steven L. Pfeil, 2007 WI App 241
For Pfeil: John P. Tedesco, SPD, Madison Appellate

Issue/Holding: Time spent in custody of the (now-lapsed) division of intensive sanctions tolls the limitation period for prior convictions, § 939.62(2):

¶2        …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. Under it, Pfeil was a prisoner and became eligible for sentence credit. We therefore decline Pfeil’s request that we reverse the judgment and remand with instructions to commute the enhancer portion of his sentence. Instead, we affirm.

…

¶16      The DIS statutory scheme contemplates a flexible program of incrementally greater privileges. Nonetheless, it is deemed to be a state prison, it is run as a correctional institution, and it considers participants such as Pfeil to be prisoners subject to an escape charge in the event they fail to comply with an imposed condition.  …

DIS terminated as of 12/31/99; see ¶3 n. 2. Therefore, the impact of this case should be pretty limited. The larger principle might be the idea that “actual confinement,” for tolling purposes, hinges on whether the defendant was entitled to sentence credit and subject to escape charge for leaving that confinement, ¶12.

State v. Ryan W. Drew, 2007 WI App 213, PFR filed 9/27/07
For Drew: Steven Zaleski

Issue/Holding: Analysis of admissibility of photo array ID remains unchanged by the new standard for show-ups set by State v. Tyrone L. Dubose, 2005 WI 126:

¶2 We conclude that Dubose did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due process. Because the court applied the correct standard and because Drew concedes the identification from the photo array was admissible under this standard, we conclude that admission of the out-of-court identification did not violate Drew’s right to due process. Because the inadmissibility of the out-of-court identification is the only ground on which Drew challenges the in-court identification, we conclude the in-court identification did not violate his right to due process. Accordingly, we affirm.…

¶13 The standard for the admissibility of identification based on photo arrays was articulated in Powell v. State, 86 Wis. 2d 51, 271 N.W.2d 610 (1978), and reaffirmed in State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200. The standard is the same as that for showups under Wolverton. First, the defendant has the burden to demonstrate the out-of-court photo identification was impermissibly suggestive; if the defendant meets this burden, the State has the burden to show that the identification is nonetheless reliable under the totality of the circumstances. Mosley, 102 Wis. 2d at 652 (citing Powell, 86 Wis. 2d at 64-66).

…

¶15 Drew argues that, in light of Dubose, the first step in the inquiry for photo arrays has changed and is now whether they are “unnecessarily suggestive,” rather than “impermissibly suggestive.” Drew asserts that the photo array procedure used in this case was “unnecessarily suggestive” because of the process-of-elimination method Bubb used and because of other ways in which the procedure did not conform to the OAG Model Policy. ^[3] He asserts that the photos themselves were unnecessarily suggestive because he was the only person in the array wearing “jail-issued clothing.” According to Drew, because of this unnecessary suggestiveness and because the State presented no evidence of reliability, the circuit court erred in admitting the photo identification.

…

¶17 We do not adopt the position Drew advances for the following reasons. First, while some of the Dubose court’s discussion of the unreliability of eyewitness identification would appear to apply to procedures other than showups, the only procedure for which the court expressly adopts a new test is for showups. 285 Wis. 2d 143, ¶33. Second, the new test adopted in Dubose—based as it is on the necessity of having a showup in the first place—provides no guidance for what “unnecessarily suggestive” might mean in the context of a photo array. Third, in discussing the necessity of a showup, the Dubose court expressly states that a “lineup or photo array is generally fairer than a show up…,” id., which raises the question whether that court sees a need to impose a stricter standard for those two types of identification procedures.

¶18 Fourth, the supreme court has recently characterized Dubose’s holding as being limited to showups[, i]n State v. Hibl, 2006 WI 52, ¶32, 290 Wis. 2d 595, 714 N.W.2d 194 ….

¶19 We recognize that the photo array here, unlike the spontaneous encounter in Hibl, is a law enforcement procedure and therefore that distinction between Hibl and Dubose does not apply here. Nonetheless, we read Hibl as emphasizing the limited nature of the actual holding in Dubose. …

State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89,affirmed, 2005 WI 31
For Jensen: Robert H. Friebert, Matthew W. O’Neill

Issue/Holding:

¶36      We agree with the State that the testimony of Jensen’s defense witnesses as to the practices of both Democrats and Republicans in the legislature of using state resources for campaign purposes is not relevant to show whether Jensen intended to obtain a dishonest advantage by doing the same. Whether or not Jensen’s opponents were known by others to use state resources for campaign purposes is not relevant as to whether Jensen intended to obtain a dishonest advantage by doing so. That is, the question is not whether others were actually engaged in use of state resources for campaign purposes or whether Jensen had a legitimate belief that they were doing so. The question is, when Jensen used state resources for campaign purposes, what was his intent? The beliefs of others are not relevant to this inquiry.

¶37      However, Jensen’s beliefs are relevant to this inquiry. The State’s arguments to the contrary rest on its assertion that Jensen’s intent to obtain a dishonest advantage was not at issue, based on Jensen I. We have explained that we disagree with this reading of Jensen I. We see no other reason why Jensen should not have been given the opportunity to explain his reasoning in acting as he did, to rebut the State’s accusation that he acted with the intent to obtain a dishonest advantage. Thus, while we conclude that the testimony of Jensen’s defense witnesses was properly excluded as irrelevant, we do not reach the same conclusion as to Jensen’s own testimony on the same issue.

The result was characterized in some quarters as being based on a mere “technicality.” (See, e.g., discussion here; to be sure, Marquette Law Prof Rick Esenberg at the linked site, doesn’t himself take view.) Technicality? That you’ve got the right to defend against a specific-intent crime by ensuring factual resolution of your denial of intent? At Case Summaries, we like to term that sort of thing, your constitutionally guaranteed right to present a defense. It’s been a while since we’ve come across a case where the defendant wasn’t allowed to put intent in issue, but here’s an older one,Brown v. Israel, 449 F. Supp. 1029, 1030 (D. Wis. 1978):

In an effort to disprove the charge of first degree murder, the petitioner attempted to testify that he lacked the specific intent to kill … The petitioner argues that the judge’s exclusion of the proffered testimony concerning his intent at the time of the offense violated his right to present a defense …. The respondent concedes that the trial court’s rulings were erroneous under both state law and the United States Constitution …

In other words, the essence of Jensen is that a defendant can defend against a specific-intent crime by … denying specific intent. It does not seem more complicated than that, the State’s argument apparently being that “intent to obtain a dishonest advantage was not at issue,” ¶37. It does make prosecution of specific-intent crime immeasurably easier if you do away with specific intent.