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Agriculture — holding orders — collateral attacks

By: WISCONSIN LAW JOURNAL STAFF//July 17, 2014//

Agriculture — holding orders — collateral attacks

By: WISCONSIN LAW JOURNAL STAFF//July 17, 2014//

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Wisconsin Court of Appeals

Criminal

Agriculture — holding orders — collateral attacks

A defendant charged with violating a holding order cannot collaterally attack the validity of the order.

“Hershberger also asserts that review of a holding order would be ‘substantively illogical’ because it would only weigh the quality of ‘the investigator’s subjective assessment’ without the benefit of the testing that takes place after the holding order is in place, which is the only way to confirm or refute the investigator’s assessment. However, as the State points out, a holding order may be issued only when the investigator has ‘reasonable cause to believe’ that food needs to be held until it is tested, and that ‘reasonable cause to believe’ is an inherently objective standard that may be examined based on the facts that were before the investigator at the time of issuing the holding order. See Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶¶50-51, 251 Wis. 2d 68, 640 N.W.2d 788 (‘“Reasonable cause is more than suspicion but less than a preponderance of evidence,”’ which may be established based on facts in the record.) (quoted source omitted). Hershberger does not explain why, under this objective, fact-based standard, he could not have tested the factual basis for the investigator’s observations through one of the options for review summarized above.”

Affirmed.

Recommended for publication in the official reports.

2013AP1502-CR State v. Hershberger

Dist. IV, Sauk County, Reynolds, J., Kloppenburg, J.

Attorneys: For Appellant: Rich, Elizabeth G., Plymouth; Reynolds, Glenn C., Madison; Salberg, Amy Marie, West Bend; For Respondent: Balistreri, Thomas J., Madison; Calkins, Kevin R., Baraboo; Ferris, Phillip D., Madison; Defort, Eric D., Madison

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