City of Milwaukee v. Thompson
| Decision Date | 29 September 1964 |
| Citation | 24 Wis.2d 621,130 N.W.2d 241 |
| Parties | CITY OF MILWAUKEE, a municipal corporation, Plaintiff-Respondent, v. Raymond J. THOMPSON, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Roland J. Steinle, Jr., and Gregory Gramling, Jr., Milwaukee, for appellant.
John J. Fleming, City Atty., Theophilus C. Crockett, Asst. City Atty., Milwaukee, for respondent.
The urine-analysis test showed 22/100 of 1 percent of alcohol by weight in the defendant's blood which amount under sec. 325.235(1)(c) is prima facie evidence the defendant was under the influence of liquor. The defendant on this appeal contends: (1) That the proper test upon review where the trial court makes only a general finding of guilty is whether that finding is supported by the preponderance of the evidence, (2) that in the absence of the result of the urine-analysis test the finding of the trial court is not supported by the preponderance of the evidence; and (3) it was error for the trial court to consider the result of the urine-analysis test and in any event the court should remit the case for further proceedings under its discretionary power of reversal.
The proper test of the court's finding on appeal is whether the finding is against the great weight and clear preponderance of the evidence; if it is not, the finding should be affirmed. City of Milwaukee v. Johnston (1963), 21 Wis.2d 411, 124 N.W.2d 690; Shawano County v. Wendt (1963), 20 Wis.2d 29 121 N.W.2d 300. But the defendant contends a mere finding of guilty of an ordinance violation is a general finding and comes under the rule announced in Weinhagen v. Hayes (1921), 174 Wis. 233, 178 N.W. 780, 183 N.W. 162, 187 N.W. 756; Dammon v. Dammon (1911), 145 Wis. 122, 128 N.W. 1062; and Closuit v. John Arpin Lumber Co. (1907), 130 Wis. 258, 110 N.W. 222. Those cases deal with a general finding when specific findings of fact were required by statute. The type of finding there discussed was not a true finding of fact but a hybrid composed of fact and a conclusion of law or a determination of whether the pleadings were or were not proven. The 'against the great weight and clear preponderance' rule is not confined to specific findings of fact required in cases governed by sec. 270.33, Stats.
We do not consider a determination that the defendant violated a city ordinance prohibiting the operation of a motor vehicle while under the influence of an intoxicant to be a general finding within the rule contended for by the defendant. Such finding as in this case where the operation of the vehicle is not contested involves only the single question of whether the defendant was under the influence of liquor which he admittedly had drunk. In such a case unless a finding is against the great weight and clear preponderance of the evidence, it will be affirmed.
Defendant argues the result of the urine-analysis test should not have been considered by the court because the city did not prove that in making the test the receptacle used by the defendant was uncontaminated. The city's chemist on cross-examination testified that if the receptacle had been cleaned with alcohol or if the receptacle was not perfectly clean the accuracy of the test would be affected. We believe this argument to be immaterial and not controlling on this appeal because there is sufficient evidence to sustain the conviction even if the result of the urine-analysis test is disregarded. Scientific tests and appreciable interference with one's driving are not necessary for a conviction for driving a motor vehicle while under the influence of an intoxicant. Milwaukee v. Richards (1955), 269 Wis. 570, 69 N.W.2d 445; City of Milwaukee v. Johnston, supra.
It is undisputed that when the defendant stopped his car to talk to the arresting officer he slurred the words 'Ambassador' and 'Wisconsin,' he told the officer in response to a...
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