Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12
court of appeals decision (1-judge, ineligible for publication); case activity
Probable Cause – PBT, § 343.303
¶11 At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption), and was under twenty-one years of age. Under Wis. Stat. § 343.303, this provided Putzer with probable cause to believe Christenson had violated, at a minimum, Wis. Stat. § 346.63(2m), which prohibits a BAC above 0.0 percent for a person under twenty-one years of age who is operating a motor vehicle, and thus justified the administration of the PBT to her. Because we conclude that the PBT was lawfully administered to Christenson, her argument that the trial court erred when it admitted the blood test results derived from the PBT necessarily fails.
It doesn’t matter, the court adds, that Christensen was arrested for and charged with OWI, rather than violating § 343.303; all that matters is probable cause to believe a violation of § 346.63(1) or (2m) has occurred, ¶12.
Blood Test Admissibility, Implied Consent Law
Results of Christensen’s blood test were admissible, notwithstanding non-compliance with § 343.305 in procurement.
¶18 To begin, nothing in Wis. Stat. § 343.305(5)(d) states that a blood test procured in a manner which does not comport with subsection (b) is inadmissible. …
¶19 Moreover, the Wisconsin Supreme Court has ruled that “noncompliance with the procedures set forth in [Wis. Stat. § 343.305] does not render chemical test evidence otherwise constitutionally obtained inadmissible at the trial of a substantive offense involving intoxicated use of a vehicle.” State v. Zielke, 137 Wis. 2d 39, 41, 403 N.W.2d 427 (1987). … While the procedures at issue in Zielke related to a different subsection of § 343.305, the court’s holding applies with equal force here. See also County of Dane v. Winsand, 2004 WI App 86, ¶7 n.6, 271 Wis. 2d 786, 679 N.W.2d 885 (failure to establish compliance with procedural requirements does not entitle a defendant to exclusion of chemical test results, but the evidence “would simply lose the benefit of §§ 343.305(5)(d) and 885.235”).
…
¶21 Based on the foregoing, we hold that failure to follow the strictures of Wis. Stat. § 343.305(5)(b) in procuring a blood sample does not result in the automatic exclusion of the blood test evidence resulting from that sample. Christenson raises no additional grounds for challenging the blood draw; thus we find no error in the trial court’s admittance of the test results from Christenson’s blood sample and its reliance on them in finding Christenson guilty.
OWI – Sufficiency of Evidence
¶24 As the trial court found here, Oliver’s uncontroverted testimony was that two initial tests were done on Christenson’s blood sample, both of which showed a reading of .084 percent BAC. A later test done on the same sample showed a result of .081 percent. Oliver did testify to a “margin of error” of .005, which could “just as easily mean” that the BAC on the .084 and .081 tests were really .079 and .076, respectively. However, the trial court’s decision to rely on the test results actually obtained from the testing rather than speculate on the possibility that the results could have been below .080 percent was not clearly erroneous. The trial court could reasonably conclude Christenson’s BAC level was at or above the .08 percent limit and that her guilt was proven by clear, satisfactory, and convincing evidence.
