State v. Robert B. Sonnenberg, 2012AP1025, District 2, 9/19/12
court of appeals decision (1-judge, ineligible for publication); case activity
Evidence held sufficient to sustain Sonnenberg’s conviction for OWI-1st. He admitted that he drank some indeterminate amount of alcohol before his car had a flat tire and then drank more on the side of the road; after an officer encountered him, he performed poorly on FSTs and his blood draw resulted in a .184 BAC.
¶9 Our review of the record and the standard of review applied to these facts supports the trial court’s conclusion that Sonnenberg was driving while under the influence of alcohol. Sonnenberg admitted he had been drinking both before and while driving his vehicle that day. Although Sonnenberg claimed he consumed alcohol after he stopped driving his vehicle, no other witness supported this self-serving testimony. Sonnenberg’s inability to recall times of the day, durations of time, quantities of alcohol he consumed, and the strength of the alcohol he consumed all raised questions as to whether his testimony was credible. As the finder of fact, the court was entitled to weigh the evidence and discount Sonnenberg’s account at trial that he drank after he stopped driving as not credible. See State v. Paegelow, 56 Wis. 2d 815, 821-22, 202 N.W.2d 916 (1973).
¶10 Sonnenberg argues that, as the trial court was unable to establish a specific BAC for when he was driving, the trial court did not have sufficient evidence to conclude that he was driving under the influence. Sonnenberg’s argument misses the mark; Sonnenberg was not convicted of driving with a prohibited alcohol concentration, but rather of operating under the influence, which requires a finding that he was driving while impaired. Although the trial court placed import on the results of Sonnenberg’s blood test, it did not rely on this evidence alone to determine that Sonnenberg was impaired when he was driving. Instead, the trial court relied on the deputy’s observations of Sonnenberg’s impairment before and during the field sobriety tests and on inferences drawn from the evidence that Sonnenberg, if he had been drinking at all, had consumed a small amount of alcohol after pulling his car over to the side of the road. Even though Sonnenberg’s friends testified that they did not believe him to be impaired, the totality of the evidence was sufficient for the trial court to conclude otherwise.
