By Gretchen Schuldt
A judge was within his rights to dismiss a case when the prosecutor did not include any facts or argument in a brief, the state Court of Appeals ruled this week.
Wisconsin State Patrol Trooper Damien Wood ticketed Craig R. Thatcher in St. Croix County for first-offense drunk driving in November 2019. Thatcher eventually moved to suppress the evidence, arguing that he did not validly consent to a breath test. He also said that a blood test was improper.
The state filed its not-much-of-a-response brief. Here it is in full, as included in the decision by District III Court of Appeals Judge Gregory B. Gill Jr.:
The state’s failure to file a full brief prompted St. Croix County Circuit Judge Scott R. Needham to grant Thatcher’s motion, Gill wrote.
“After summarizing Thatcher’s arguments and the applicable law, the court noted that by failing to file a brief disputing Thatcher’s arguments, the State had ‘apparently conceded … the issues as raised by Thatcher,’ ” Gill wrote.
Assistant District Attorney Michelle Brekken filed a corrected brief the next day and sent a letter saying “ ‘a prior draft of the State’s Brief was inadvertently submitted without argument,’ “ Gill wrote. The state asked Needham to reconsider his decision in light of the “technical error.”
Needham rejected the state’s request, noting the non-brief was filed Aug. 7 and the problem with it was not discovered until Sept. 23, after Needham pointed it out.
“Though perhaps the State provided an explanation for its mistake, it is nevertheless not an excuse,” Needham said. He added that “ ‘a consideration of the merits of the State’s argument does not change the outcome.’ ” Gill wrote.
“The circuit court’s decision shows that it examined the relevant facts, applied a proper standard of law, and used a demonstrated rational process to reach a reasonable conclusion,” Gill wrote. “The court reasonably concluded that the State had not presented newly discovered evidence to support its motion for reconsideration, nor had the State shown that the court’s prior decision was based on a manifest error of law or fact. On this record, we cannot conclude that the court erroneously exercised its discretion by denying the State’s motion for reconsideration.”
Gill also found that Needham properly suppressed the breath test and blood test evidence because the state did not properly develop an argument refuting Thatcher’s contentions.
Thatcher was represented by attorney Adam Nero.
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