State v. Wallow, No. 2007AP2247-CR (Wis. App. 4/16/2008)
| Decision Date | 16 April 2008 |
| Docket Number | No. 2007AP2247-CR.,2007AP2247-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Adam J. Wallow, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Affirmed.
After a two-day trial, a jury found Adam J. Wallow guilty of operating a motor vehicle with a prohibited alcohol content (PAC) of .08 percent or more, third offense. Wallow contends on appeal that his conviction should be reversed because the State failed to prove that his involuntarily given blood sample was drawn in compliance with WIS. STAT. § 343.305(5). Mistakenly believing that a compelled blood draw is not governed by the implied consent law, Wallow also argues that the State did not sufficiently prove the test results and that the court erred when it gave the pattern jury instruction rather than the modified one he requested. All of his challenges fail. We affirm the judgment.
¶ 2 City of Lake Geneva police officer Seth Keller arrested Wallow for PAC and operating a vehicle while intoxicated (OWI) after Wallow failed a series of field sobriety tests.2 Keller, on foot patrol, flagged Wallow down just before midnight to issue him a citation for driving with loud music. Wallow parked parallel to the curb in a diagonal parking stall and exhibited a flushed face, red eyes and breath smelling of intoxicants. Wallow told Keller he had two beers earlier and "recently" had a scotch and/or a whiskey. Wallow refused to consent to a blood test, and Keller and fellow officer Brandi Nelson transported him to Lakeland Hospital for a compulsory draw. Wisconsin State Laboratory of Hygiene analyst Thomas Ecker testified that the sample showed a blood alcohol concentration of .084 percent. The court gave the standard OWI/PAC instruction. See WIS JI CRIMINAL—2669. The jury acquitted Wallow of operating while intoxicated, but found him guilty of PAC. Wallow appeals. We will supplement the facts as the discussion of each issue requires.
¶ 3 Wallow raises three issues on appeal. He contends the trial court erred by (1) admitting his blood test result because the State did not prove compliance with Wis. Stat. § 343.305(5), (2) allowing expert testimony about the test result because the State did not provide a written summary of the testimony and because the testimony lacked persuasiveness, and (3) giving the pattern OWI/PAC jury instruction rather than the modified one he requested. Wallow's last two issues are connected by a common thread: that a compelled blood test constitutes "noncompliance" with the implied consent law such that the State loses the test result's presumptive admissibility. We address each issue in turn.
Compliance with WIS. STAT. § 343.305(5)
¶ 4 Wallow contends that the trial court erroneously admitted the blood test result because he claims the State did not prove that the specimen collection complied with WIS. STAT. § 343.305(5)(b).3 The statute authorizes specific persons to perform the blood draw and Wallow asserts that the State did not establish that a person authorized to draw the specimen in fact drew it, because the State did not call the lab worker as a witness or question other witnesses as to her credentials. The trial court denied Wallow's motion to suppress because its "common sense" told it that hospitals would not permit just anyone to draw blood.
¶ 5 The trial court has wide discretion in determining whether to admit evidence. State v. Buck, 210 Wis. 2d 115, 129, 565 N.W.2d 168 (Ct. App. 1997). Whether the blood draw procedures comported with the statutory requirements involves applying the statute to the facts of record, presenting a question of law we review de novo. See State v. Penzkofer, 184 Wis. 2d 262, 264, 516 N.W.2d 774 (Ct. App. 1994). To the extent the trial court's decision involves findings of facts, we uphold those findings unless they are clearly erroneous. State v. Ragsdale, 2004 WI App 178, ¶7, 276 Wis. 2d 52, 687 N.W.2d 785.
¶ 6 WISCONSIN STAT. § 343.305(5)(b) provides, in relevant part:
Blood may be withdrawn from the person arrested for violation of s. 346.63 (1) ... to determine the presence or quantity of alcohol ... in the blood only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician. (Emphasis added.)
While the statute authorizes specific persons to draw blood, it does not address the manner of establishing the person's qualifications. We therefore look to the evidence. At the point that the trial court denied the suppression motion, it had before it the following evidence: both police officers transported Wallow to the hospital and were present during the blood draw; Nelson testified that the person from the hospital laboratory who drew the blood filled out the relevant portion of the "State of Wisconsin Blood/Urine Analysis" form; the signature on the form identifies the laboratory person as "Lisa Loepke, R.N."; Keller observed "[t]he nurse ... pack[] [the specimen] up into a little box" and hand it to Nelson, who handled it per the police department's standard procedure.
¶ 7 The reasonable inferences from this evidence are that: Loepke worked at the hospital; she is a registered nurse, a designation that complies with the statute; it was within her job description to draw blood; and, in doing her job, she was under the hospital's general supervision. We may take judicial notice that Lakeland Hospital is a reputable community hospital, and hospital employees with medical responsibilities such as the invasive taking of bodily fluids are under the general direction of at least one physician. See WIS. STAT. RULES 902.01(2)(a) and (6) (). Penzkofer teaches that the term "direction," as used in WIS. STAT. § 343.305(5)(b), need not be over-the-shoulder supervision. See Penzkofer, 184 Wis. 2d at 265-66. We also observe that hospital laboratories are subject to detailed, stringent standards in almost every aspect of their facilities and services and that hospitals must comply with all applicable state laws to maintain their certificate of approval. See WIS. ADMIN. CODE §§ HFS 124.03 and 124.17 (Dec. 2004); see also Penzkofer, 184 Wis. 2d at 266.
¶ 8 In addition, the admission of evidence of Wallow's blood test result is supported by case law. When a chemical test result is challenged on the basis of noncompliance with underlying procedures, the result nonetheless carries a "prima facie presumption of accuracy" and is admissible. See City of New Berlin v. Wertz, 105 Wis. 2d 670, 674, 314 N.W.2d 911 (Ct. App. 1981). Wallow's challenge, therefore, more aptly goes to the weight of the blood alcohol evidence, not to its admissibility. See id. at 675 n.6. Whether called inferences or "common sense," this court must accept the reasonable inferences the trial court draws from the credible evidence. See State v. Searcy, 2006 WI App 8, ¶35, 288 Wis. 2d 804, 709 N.W.2d 497, review denied (Wis. July 17, 2007) (No. 2004AP2827-CR).
¶ 9 Wallow next asserts that his refusal to provide a blood sample constitutes noncompliance with the implied consent law. He posits that under State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987), noncompliance results in the State losing its right to rely on the statute's automatic admissibility provisions and the prima facie effect of WIS. STAT. § 885.235(1g)(c), and the State must prove the results by expert testimony.
¶ 10 As our courts have explained on numerous occasions, the Wisconsin legislature enacted the implied consent statute to combat drunk driving. See, e.g., State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999). An accused intoxicated driver has no choice in respect to granting his or her consent. State v. Neitzel, 95 Wis. 2d 191, 201, 289 N.W.2d 828 (1980); State v. VanLaarhoven, 2001 WI App 275, ¶7, 248 Wis. 2d 881, 637 N.W.2d 411. By applying for a license, a driver waives any right he or she otherwise may have had to refuse to submit to chemical testing. Neitzel, 95 Wis. 2d at 201. A driver applying for a license is deemed to be fully cognizant of his or her rights and to know that, in the event of a later arrest for drunken driving, he or she already consented to chemical testing under the circumstances envisaged by the statute. Id.
¶ 11 Wallow reads Zielke to say that any noncompliance with the statute, whether by a state actor or the accused driver, results in the State losing its right to rely on the statute's automatic admissibility provisions and the prima facie effect of WIS. STAT. § 885.235(1g)(c). He argues that due to his own "noncompliance," the State now must prove the accuracy of the results by expert testimony.
¶ 12 Wallow misreads Zielke. There, the supreme court held that law enforcement's noncompliance with the procedures set forth in Wis. Stat. § 343.305 causes the State to lose its right to rely on the law's automatic admissibility provisions. Zielke, 137 Wis. 2d at 49. Zielke does not say that an arrestee's refusal also constitutes noncompliance. To the contrary, the very reason the implied consent law provides penalties for those who unlawfully revoke their consent is to fulfill its purpose of facilitating evidence collection to keep drunk drivers off the roads, id. at 41, not to enhance their rights. Reitter, 227 Wis. 2d at 224. Wallows' claim that an accused's refusal removes the action from the aegis of the implied consent law runs counter to the statute's oft-stated intent. "Neither the law, its history [n]or common sense allows this court to countenance its use as a shield by the defense to prevent constitutionally obtained evidence from...
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