State v. Kasian
In State v. Kasian, 207 Wis. 2d 611, 558 N.W.2d 687 (Ct. App. 1996), the arresting officer came upon the scene of a one-vehicle accident.
The officer observed a damaged van next to a telephone pole. The engine of the van was running and smoking.
An injured man, whom the officer recognized as Kasian, was lying next to the van. The officer observed a strong order of intoxicants about Kasian.
Later at the hospital, the officer observed that Kasian's speech was slurred. Kasian was arrested without field sobriety tests being performed.
The Court held that this evidence constituted probable cause to believe Kasian had operated the vehicle while intoxicated. See id. at 622.
The Court identified five criteria in determining whether issue preclusion applies:
(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;
(2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issues;
(4) have the burdens of persuasion shifted such that the parties seeking preclusion had a lower burden of persuasion in the first trial than in the second;
(5) are matters of public policy and individual circumstances involved that would render the application of issue preclusion to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action? (Kasian, 207 Wis. 2d at 615-16.)