State v. Burkman
| Decision Date | 03 June 1980 |
| Docket Number | No. 79-011-CR,79-011-CR |
| Citation | 96 Wis.2d 630,292 N.W.2d 641 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Duane C. BURKMAN, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Bruce A. Tammi and Schneider & Tammi, Milwaukee, for defendant-appellant-petitioner.
E. Michael McCann, Dist. Atty. for Milwaukee County and James J. Martin, Asst. Dist. Atty., for plaintiff-respondent.
Duane C. Burkman was convicted of operating a motor vehicle while under the influence of an intoxicant, contrary to secs. 346.63(1) and 346.65(2), Stats. He was tried by a jury. The court of appeals affirmed the judgment of conviction and we granted his petition for review.
The trial court denied the admission into evidence of the results of a chemical test administered by the police to determine the concentration of alcohol in the blood of Burkman at the time of his arrest. This ruling of the trial court was based upon the fact that the police had not complied with all of the provisions of the Wisconsin Administrative Code when administering the test. 1
At trial, on appeal, 2 and now on review, the principal argument advanced by Burkman is that, as a result of several 1977 statutory amendments, the trial court erred in allowing the state to introduce corroborating physical evidence to prove that he was under the influence of an intoxicant at the time he was driving a motor vehicle. His argument in effect is that under the present statutes a person cannot be convicted of this offense solely on the basis of corroborating physical evidence. We reach the opposite conclusion, as did the court of appeals and the trial court.
At trial Thomas McKenna testified that he was in his house watching television on August 27, 1978, and at approximately 9:30 p. m. he heard a crash outside. He went outside and saw a pick-up truck on the sidewalk approximately one block from his house and a tree lying in the street. The truck was facing in the wrong direction as if it had been proceeding on the wrong side of the street before it came to rest. McKenna stated the truck had been involved in an accident and he believed the accident resulted from the truck striking the tree. He then went inside his house and told his wife to call an ambulance.
McKenna further testified that he went outside again and walked over to the truck. The truck was not in the place where it was when he first saw it. Burkman (hereinafter defendant) was seated behind the wheel of the truck and McKenna asked him if he had been injured. The defendant replied that he was all right and started to drive away in the truck which was severely damaged. McKenna ran alongside the truck for approximately a half block and told the defendant that he should not leave the scene of an accident. The defendant then stopped the truck and got out. When he got out of the truck, his balance was very unsteady, he seemed to "weave and buck" as he stood, and he was slurring his words. After the police arrived and asked the defendant for his driver's license, he had difficulty removing his wallet. When he opened his wallet, the contents spilled to the ground. At this time the defendant was still unsteady on his feet, and McKenna did not observe any cuts or bruises on him.
John Blochowiak, a Milwaukee police officer, testified that at approximately 9:17 p. m. on August 27, 1978, he was dispatched to investigate a call regarding an attempt by a driver to leave the scene of an accident. When he arrived at the scene at 9:20 p. m., he observed a pick-up truck which had been involved in an accident and had extensive front-end damage, and he spoke to the defendant who was standing at the rear of the truck. The defendant had a strong odor of alcohol on his breath, he was very unstable on his feet but could stand without aid, and his speech was slurred and difficult to understand. He had no signs of injury nor did he complain of any injury. The officer administered the finger-to-nose test to the defendant, but the defendant was not able to touch his nose. The defendant also swayed and staggered when he walked, he turned around with difficulty and his turns were uncoordinated. The defendant was then conveyed to the Second District police station and at that time he was cooperative but he was still unstable on his feet. The officer testified, based on his thirteen years on the police force and contacts with people who were intoxicated, that in his opinion the defendant was under the influence of an intoxicant.
As its final witness, the state called Michael Neeb, a Milwaukee police officer who administered a breathalyzer test to the defendant on August 27, 1978, at 10:23 p. m. Neeb testified that he did not have the defendant under continuous observation for twenty minutes prior to the time that he administered the breathalyzer test to him. The defendant objected to the admission of the results of the breathalyzer test, on grounds of lack of foundation, because of Neeb's failure to comply with the procedures set forth in the Wisconsin Administrative Code for administering a breathalyzer test. The trial court ruled that the results of the breathalyzer test were inadmissible in evidence because Neeb failed to comply with Wis.Adm.Code sec. MVD 25.05(3)(a), which requires that the subject be kept under continuous observation for at least twenty minutes prior to the collection of the breath specimen.
The defense called as its first witness Donghee Wilbon, a fellow employee of the defendant. Wilbon testified that on August 27, 1978, he was with the defendant at their union picnic almost continuously from approximately noon until 8:30 or 8:45 p. m. The defendant had four to six drinks during that time, and at the time the defendant left the picnic at 8:30 or 8:45 p. m. his speech and walk were normal.
Gordon Brubaker, who also worked with the defendant, testified that he saw the defendant arrive at the union picnic at noon on August 27, 1978; that he saw the defendant on and off during the day; that he never saw the defendant with a drink in his hand during the day, and that the defendant walked and talked normally when Brubaker last saw him at approximately 8 p. m. and seemed all right.
The defense rested its case after Brubaker's testimony and the state called Michael Neeb as a rebuttal witness. Neeb testified that the defendant had a strong odor of alcohol on his breath when he saw the defendant at the Second District police station on August 27, 1978.
Consistent with his pretrial motion that corroborating evidence as to intoxication not be considered by the jury, the defendant asked the trial court to instruct the jury that it could find the defendant guilty only if it found beyond a reasonable doubt that the defendant's blood contained 0.1 percent or more by weight of alcohol at the time he drove the motor vehicle. The trial court rejected the defendant's requested instruction and included Wisconsin Jury Instruction Criminal 2663 3 in its entirety in its instructions to the jury.
The jury returned a verdict of guilty, whereupon the trial judge entered a judgment of conviction and imposed a penalty.
The defendant contends that the trial court erred in admitting corroborating physical evidence to establish that the defendant was under the influence of an intoxicant. It is his contention that the only method of establishing a violation of sec. 346.63(1), Stats., is by proving that the alcohol by weight in the defendant's blood is 0.1 percent or more. He concludes that, by virtue of sec. 346.63(4), corroborating evidence of intoxication is inadmissible and that the only evidence which is admissible is evidence which directly relates to the issue of whether the defendant had 0.1 percent or more by weight of alcohol in his blood at the time he operated a motor vehicle.
Prior to its repeal and recreation by ch. 193, sec. 14, Laws of 1977, sec. 346.63, Stats.1975, provided in part:
That section did not state what constituted being "under the influence of an intoxicant." However, sec. 885.235, Stats.1975, set forth the procedure under which evidence of the amount of alcohol in a person's blood as shown by a chemical analysis was admissible on the issue of whether the person was under the influence of an intoxicant.
The present sec. 346.63(1), Stats.1977, provides:
Sub. (4) of sec. 346.63 states what weight is to be given to evidence showing the amount of alcohol in a person's blood:
(Emphasis supplied.)
Disagreement as to the interpretation of the above statutory sections constitutes the basis for this review. The defendant contends that the first sentence of sec. 346.63(4), Stats., specifically defines "under the influence of an intoxicant" as having 0.1 percent or more by weight of alcohol in one's blood and, therefore, the only evidence which is admissible in a prosecution for a violation of sec. 346.63(1) is a chemical analysis of a person's blood, breath or urine.
The primary source for the construction of a statute is the language of the...
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...which the law defines as 'beyond a reasonable doubt.' ' (citations omitted)." Id. at 564, 314 N.W.2d 339, quoting State v. Burkman, 96 Wis.2d 630, 643, 292 N.W.2d 641 (1980). When the conviction is based solely upon circumstantial evidence, as in the case presently before us, this court mus......
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