COURT OF APPEALS DECISION DATED AND FILED April 8, 2009 David
R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Brad L. Poolo,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J.,
¶1 PER CURIAM. Brad Poolo appeals pro se from a circuit court order denying his Wis. Stat. § 974.06 (2007-08) motion without a hearing. We agree with the circuit court that Poolo was not entitled to relief from his 2006 convictions for operating a motor vehicle with a detectable amount of a restricted controlled substance (5th offense) contrary to Wis. Stat. § 346.63(1)(am) (2005-06)[1] and felony bail jumping contrary to Wis. Stat. § 946.49(1)(b). We affirm.
¶2 We
review the circuit court’s decision to deny Poolo’s Wis. Stat. § 974.06 motion without a hearing for an
erroneous exercise of discretion. State
v. Bentley, 201
¶3 On
appeal, Poolo argues that a prior revocation for refusal does not count toward
an enhanced penalty for a subsequent operating while intoxicated
conviction. Poolo is wrong.
¶4 A prior revocation arising from a refusal to take a chemical test enhances a subsequent penalty for operating while intoxicated or under the influence of another drug. Wisconsin Stat. § 343.307(1)(f) states that revocations under Wis. Stat. § 343.305(10) for refusing to take a chemical test count to determine the penalty under Wis. Stat. § 346.65 (which sets forth the penalties for violation of § 346.63(1)). Therefore, Poolo’s 1991 revocation for refusal counts toward the penalty for his 2006 operating with a detectable amount of a restricted controlled substance, and makes the 2006 offense a fifth offense.
¶5 Poolo also attacks the 1991 revocation for refusal on the
grounds that he was not told that if he refused the officer’s request to take a
test to determine his blood alcohol level, such refusal would count toward
subsequent operating while intoxicated convictions under Wis. Stat. § 346.63(1). This is an impermissible basis for
collaterally attacking the 1991 revocation for refusal. The only permitted basis for a collateral
attack is a denial of the constitutional right to counsel in the prior
case. State v. Hahn, 2000
WI 118, ¶4, 238
¶6 Poolo’s appellant’s brief lists two other issues for
appeal: whether the bail jumping charge
should have been dismissed and whether the implied consent law is
unconstitutional. Neither of these
issues is briefed. We do not consider
inadequately briefed issues. Vesely
v. Security First Nat’l Bank, 128
¶7 The circuit court properly exercised its discretion in denying Poolo’s Wis. Stat. § 974.06 (2007-08) motion without a hearing because the record demonstrates that Poolo was not entitled to relief.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.