State v. Alswager, Appeal No. 2008AP3046-CR

• Decision Date: 20 April 2011
• Docket Number: Cir. Ct. No. 2007CF420,Appeal No. 2008AP3046-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Roger W. Alswager, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,

v.Roger W. Alswager, Defendant-Appellant.

Appeal No. 2008AP3046-CR

Cir. Ct. No. 2007CF420

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

April 20, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from a judgment and an order of the circuit court for Waukesha County: LINDA M. VAN DE WATER, Judge. Affirmed.

Before Brown, C.J., Neubauer, P.J., and Anderson, J.

¶l PER CURIAM. Roger W. Alswager has appealed pro se from a judgment convicting him after a jury trial of operating a motor vehicle while underthe influence of an intoxicant, fifth or greater offense (OWI), in violation of WIS. STAT. § 346.63(1)(a) (2009-10).¹ The jury also found Alswager guilty of operating a motor vehicle with a prohibited blood alcohol concentration (BAC) of 0.02 grams or more. Because Alswager had a BAC of 0.20 to 0.249, the applicable fine was enhanced by WIS. STAT. § 346.65(2) (g)2.

¶2 In his notice of appeal, Alswager indicated that he was also appealing from various pretrial, trial, and post-trial rulings. In addition, he stated that he was appealing from "orders entered by default or which should be entered in accordance with WIS. STAT. [RULE] 809.30(2)(i)," denying postconviction motions that previously had been filed by him. In his notice of appeal, Alswager stated that a written order denying his postconviction motions had not yet been entered. However, four weeks after Alswager filed his notice of appeal but before the record was transmitted to this court, the trial court entered a written order denying Alswager's postconviction motions. The order stated that the motions were denied "for failure to prosecute." We affirm the judgment of conviction and the order denying postconviction relief.²

¶3 Some background is necessary to understand the issues raised by Alswager, most of which relate to Alswager's contention that, on the day of his arrest, he mistakenly took an Ambien pill prescribed to his wife, which caused him to involuntarily drink alcohol and drive while intoxicated. Alswager contends that he is entitled to reversal of his judgment of conviction and the order denying postconviction relief, and remand for a new trial at which the jury is instructed on the defense of involuntary intoxication as set forth in WIS JI—CRIMINAL 755.

¶4 Alswager was arrested for operating a motor vehicle while intoxicated in the late afternoon of April 16, 2007. Testimony at trial indicated that after Alswager failed field sobriety tests, the arresting officer, Michael Ramstack, took him to Waukesha Memorial Hospital, where his blood was drawn. The blood sample was subsequently tested by the Wisconsin State Laboratory of Hygiene (WSLH). Michael Knutsen, a chemist and analyst at the WSLH, testified at trial that he tested the blood sample and that Alswager's BAC was 0.211 g/100 mL.³

¶5 Alswager initially retained Attorney Paul Bucher to represent him in the trial court proceedings. According to Alswager, he advised Bucher on July 5, 2007, that he may have mistakenly taken one of his wife's Ambien sleeping pills before his arrest on April 16, 2007. Shortly thereafter, Alswager asked Bucher to have the blood sample that had been drawn at the time of his arrest tested for Ambien. Pursuant to Alswager's request, Bucher arranged to have the blood sample sent to Aegis Sciences Corporation in Tennessee for testing. OnSeptember 18, 2007, Aegis reported that, at a testing threshold of 25 ng/mL, no Ambien was detected in Alswager's blood.

¶6 While the defense was pursuing testing by Aegis, the State moved to adjourn the trial scheduled for September 11, 2007, because Ramstack was unavailable to testify that date. Bucher wrote to the trial court indicating that adjournment was also necessary to accommodate the defense's ongoing blood testing.

¶7 At a status hearing held in the trial court on October 4, 2007, the State moved for an adjournment of the trial scheduled for October 9, 2007, based on the unavailability of the WSLH analyst. Bucher indicated that the defense did not object to the adjournment because Aegis had tested at a higher threshold level than had been indicated before the testing, and the defense was looking into re-testing. The trial court then rescheduled the trial for December 4, 2007.

¶8 On November 21, 2007, Alswager informed Bucher that he wanted to retain new counsel based on what Alswager deemed to be Bucher's mishandling of the Ambien testing. At a November 30, 2007 status hearing, Bucher moved the trial court to withdraw as counsel and requested a ninety-day extension for Alswager to retain new counsel. The trial court stated that it would not grant a ninety-day extension, but set the matter over to December 14, 2007, for Alswager to obtain new counsel. Because Alswager had not yet retained new counsel on the morning of December 14, 2007, the trial court put the matter over to the afternoon, telling Alswager that he had to retain counsel by the afternoon or Bucher would continue to represent him. That afternoon, Alswager informed the trial court that he had retained Attorney Corey Chirafisi. The trial court then rescheduled the trial for February 19, 2008, stating that it would not be adjourned again.

¶9 Ultimately, Chirafisi did not represent Alswager and Alswager retained Attorney Lisa Goldman, who filed a notice of appearance on January 8, 2008. On February 14, 2008, Goldman moved to adjourn the February 19, 2008 trial date, stating that Alswager's blood sample had been sent to Rocky Mountain Laboratory (RML) in Colorado for additional testing and that the test results were not yet available. After the trial court denied the motion, Alswager, by Goldman, moved for reconsideration.⁴ Counsel also filed an affidavit of Dr. Robert Lantz, the director of RML, detailing his expert qualifications and attesting that he was well versed in the effects of Ambien on human performance and memory, and would explain to the court its effects on memory and involuntary actions. Lantz attested that RML's analysis of Alswager's blood for Ambien was not yet complete and that he had been served with a subpoena to appear at trial on February 19, 2008, but would be unable to appear due to a conflicting court commitment.

¶10 The trial court denied reconsideration, and the case proceeded to trial on February 19 and 20, 2008. At trial, Alswager testified that he believed he had mistakenly taken an Ambien pill that he had set out for his wife in the early afternoon of April 16, 2007, rather than taking his Naproxen pill, which had a similar size, shape and color. Alswager testified that he remembered nothing from the early afternoon of April 16, 2007, when he was at home, until he woke up in jail at about 10:00 p.m. that night. Although no expert witness testified on Alswager's behalf at trial, the trial court permitted Alswager to testify that Ambiencan cause memory problems, hallucinations, sleep walking, sleep eating, and sleep driving, and that its effect can differ for different individuals. The trial court also granted Alswager's request to admit the Aegis report indicating that, at a testing threshold of 25 ng/mL, no Ambien was detected in his blood. However, the trial court prohibited additional testimony by Alswager concerning the effects of Ambien, and did not allow him to testify that he was waiting for Ambien testing results from RML, that he had wanted an adjournment of trial to await those results, or that Aegis had initially represented to him that it could test for Ambien at a threshold of 2 ng/mL. The trial court also denied Alswager's request that the jury be instructed on the defense of involuntary intoxication as set forth in WIS JI—CRIMINAL 755. While declining to hold that the defense could never be used in an OWI or prohibited BAC case, the trial court concluded that Alswager had not met his threshold burden of showing a basis for the defense in this case.

¶11 On February 20, 2008, the jury returned verdicts finding Alswager guilty of operating a motor vehicle while intoxicated and with a prohibited BAC. Although Goldman initially continued to represent Alswager in postconviction proceedings, she moved to withdraw as counsel after Alswager filed two pro se motions for postconviction relief on September 18, 2008, without her review and approval. In one motion, Alswager sought a new trial based on newly discovered evidence and in the interest of justice. In the other motion, he sought a new trial based on alleged ineffective assistance of counsel by Bucher. In support of his motions, Alswager filed affidavits previously prepared by Goldman, including an affidavit indicating that RML provided the test results for Alswager's blood to Goldman on February 27, 2008, approximately one week after trial. Alswager also attached an affidavit from Lantz stating that Alswager's blood sample contained Ambien consistent with ingesting one five milligram tablet of Ambienapproximately one to four hours before the collection of his blood sample. In his affidavit, Lantz attested that he could testify that ingesting one five milligram tablet of Ambien "could" render Alswager incapable of knowing the difference between right and wrong and that one side effect of Ambien is consuming and ingesting food and liquids without memory or knowledge at the time of ingestion. Lantz further attested that "while one is under the influence of Ambien, a sleeping medication, one is effectively sleep walking, sleep eating, sleep driving." Alswager also relied on a post-trial report from NMS Labs in Pennsylvania, indicating that his blood sample contained Ambien, and on two juror affidavits, one indicating that the alleged...