State v. David A. Schultz, 2022AP1622, 2/13/24, District III (not recommended for publication); case activity
Schultz’s technical challenge to this OWI conviction fails, as COA finds sufficient evidence that the bar parking lot in which Schultz operated his motor vehicle was covered by the OWI statute.
Schultz tried to leave the “Bull Pen Bar” and instead backed his vehicle into a parked truck. (¶2). Police ultimately arrested him for an OWI offense. (¶3). At trial, however, he argued that he wasn’t really guilty of an OWI because, in his view, the OWI statutes did not apply to his conduct in the bar parking lot. (¶5). He renews those arguments on appeal, arguing that the evidence was insufficient to establish that the parking lot was “held out to the public for use of their motor vehicles” consistent with § 346.61. (¶9). He appears to believe that, in order to be found guilty, the State needed to call the owner of the parking lot to give testimony regarding whether he intended the public to access the lot. (¶16).
COA disagrees. It begins with the test developed in its prior decision of City of La Crosse v. Richling: “[W]hether, on any given day, potentially any resident of the community with a driver’s license and access to a motor vehicle could use the parking lot in an authorized manner.” (¶21). While the testimony of the parking lot’s owner may be relevant and helpful evidence, it is not required. (¶23). Instead, the State can prove that the parking lot is held out to the public circumstantially, which is what happened here. (Id.). Testimony from a witness to the incident as well as two law enforcement officers involved in the investigation regarding their observations of the lot were therefore sufficient. (¶24). Moreover, it is irrelevant that the parking lot may have been restricted to customers of the business in question, as the relevant question is whether a member of the public could use the lot in an authorized manner, such as by patronizing the business. (¶28).
Having determined that the evidence was sufficient to prove that the bar parking lot was “held out to the public,” COA also rejects Schultz’s challenge to the pattern jury instruction which accurately stated that the State needed to prove Schultz operated his vehicle “on a premises held out to the public for use of their motor vehicle.” (¶36).
