City of Milwaukee v. Bichel

• Decision Date: 09 May 1967
• Citation: 35 Wis.2d 66,150 N.W.2d 419
• Parties: CITY OF MILWAUKEE, Respondent, v. Robert BICHEL, Appellant.
• Court: Wisconsin Supreme Court

Page 419

150 N.W.2d 419

35 Wis.2d 66

CITY OF MILWAUKEE, Respondent, v. Robert BICHEL, Appellant.

Supreme Court of Wisconsin.

May 9, 1967.

Edwin C. Rachow, Milwaukee, for appellant.

John J. Fleming, City Atty., Theophilus C. Crockett, Asst. City Atty., Milwaukee, for respondent.

HEFFERNAN, Justice.

A verdict ought to be directed if, taking into consideration all the facts and circumstances as they appear in evidence, there is but one inference or conclusion that can be reached by a reasonable man. 1 Wisconsin Continuing Legal Education 125. In this case the trial judge concluded that the facts before him warranted the directed verdict of 'guilty.' He made no analysis of the evidence in a memorandum opinion, so we do not have the benefit of his thinking at the time he made his decision. We, therefore, are obliged to review the evidence ab initio to determine whether the trial court's action was proper. In making such a review, we are obliged to take that view of the evidence which is most favorable to the party against whom the verdict is directed. Schumacher v. Klabunde (1963), 19 Wis.2d 83, 87, 119 N.W.2d 457; Mueller v. O'Leary (1935), 216 Wis. 585, 587, 257 N.W. 161. And if there is any evidence to sustain a defense, the case must be submitted to the jury. Kielich v. Whittaker (1924), 183 Wis. 470, 476, 198 N.W. 270. In other words, if this case had gone to the jury and an acquittal resulted, could the verdict, remembering that this is a civil action for the enforcement of a municipal ordinance, be sustained?

Clearly, there was evidence that could have supported a jury's verdict of guilty. The alcohol test of .31 of one percent was substantially in excess of the minimum specified by sec. 885.235(1), Stats., as prima facie evidence of intoxication. Moreover, there was considerable corroborating evidence of intoxication. The police officer testified that the driver was proceeding in the wrong direction on a one-way street and that Bichel did not appear alert, he was unsteady and had to hang onto the door of the car when he stepped out, he stumbled and staggered, his speech was slurred, he was abusive and belligerent, his eyes were bloodshot and watery, he lost his balance, and he did not know what time it was. Perhaps most damaging--in a year of a National Football League championship and the first world championship, the 'Super Bowl'--the officer stated, 'he'd get right up in front of me with his chin right up against me and started to run down the Packers and Bart Starr.' The officer testified that, on the basis of his observation and his previous experience with persons who had been drinking, 'He was drunk in my opinion.' As the trial judge correctly pointed out, City of Milwaukee v. Johnston (1963), 21 Wis.2d 411, 414, 124 N.W.2d 690, stands for the proposition that:

"(A) lay witness, who has the opportunity to observe the facts upon which he bases his opinion, may give his opinion whether a person at a particular time was or was not intoxicated."

That case further points out that 'The evaluation of the opinion of such a witness is for the trier of the facts.' Supra, p. 415, 124 N.W.2d p. 693.

While the facts thus stated would support a verdict of guilty, they are the facts adduced that are most unfavorable to the defendant, while we are obliged to consider the facts that are most favorable to him (cases cited supra).

While there is some dispute about the time some of the relevant incidents occurred, it is reasonably clear that the defendant was apprehended at about 2:10 A.M. and was engaged in a conversation on the street with the police for a period of twenty minutes, a urine sample was given at the station at 2:55 A.M., and by 3:15 A.M. the officer testified that he had completed writing up his report.

While the officer testified that the defendant was so disoriented that he was 'staggering about all over the place' and, hence, was given no test at the scene, it is uncontradicted that at the station, only a few minutes later, he was 'cooperative,' his choice of words was 'fair,' his clothes were 'orderly,' the odor of alcohol was 'moderate,' and he was able to pick up coins from the floor though he was 'slow.' While this testimony could still be corroborative of a blood alcohol test under sec. 885.235(1)(c), it is hardly descriptive of a completely uncoordinated, bumbling drunkard. It is inconsistent with the officer's testimony in regard to defendant's conduct only a few minutes earlier.

Bichel testified that he only had four drinks in a period of eight hours prior to his arrest, two of which were consumed prior to 8 P.M. and two about midnight. He explained that he always holds onto a car door when getting out and that his stumbling was the result of nervousness induced by pills prescribed for the treatment of his ulcer. He stated that the pills 'had tremendous physical effects on me * * *. I couldn't think, I couldn't remember stuff, and I was just nervous, in fact I almost had a nervous breakdown with them.' He asserted that the pills made him act the way he did at the time of the arrest, although he had not taken any pills for several hours and there was no evidence that he was, at the time, under the influence of the drugs.

Also there was introduced into evidence a statement of the defendant's physician that he had recently been hospitalized for an active duodenal ulcer and that he had been taking drugs that would induce an 'excessive reaction' to alcohol. The physician stated:

'It is my opinion * * * that if Mr. Bichel had even one or two drinks * * * that these reactions might be those of one who had consumed a considerable(ly) larger quantity of alcohol.'

Thus, taking the evidence most favorable to the defendant, there was evidence of a reasonably sober response to physical tests, and there was no evidence of erratic driving (other than his driving in the wrong direction on a one-way street). The odor of alcohol was moderate, and the defendant offered evidence to show that his conduct, to the extent it was...