On Point: Blood Test Admissibility

County of Dunn v. Kevin J. Cormican, 2020AP1895, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

After being convicted of OWI 1st, Cormican appealed the denial of his motion to suppress the results of his blood test. He first argued that the arresting officer gave him information beyond what is on the Informing the Accused (ITA) card that was misleading and affected his decision to consent to the test. He also argued that due to the misleading information, his consent to the blood test was involuntary. The court of appeals affirmed.

St. Croix County v. Kelly M. Lagerstrom, 2019AP928, District 3, 8/10/21 (one-judge decision; ineligible for publication); case activity (including briefs)

As in State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, retrograde extrapolation testimony from a toxicologist was admissible as evidence of Lagerstrom’s possible blood alcohol content around the time the state alleged he drove his car into a ditch.

State v. Charles L. Neevel, 2021AP36, 7/1/21, District 4 (one-judge decision ineligible for publication) case activity (including briefs)

Neevel was arrested on suspicion of drunk driving. The officer read him the implied consent “informing the accused” form, and Neevel agreed to a blood draw. He moved to suppress, lost, and pleaded no contest to OWI. On appeal, he renews the argument he made in trial court: that the officer should instead have ordered a less intrusive test, such as a breath test. (The officer did, in reading the form, tell Neevel he could have an alternative in addition to the blood draw; Neevel’s contention is that he should have been offered a different test instead of the blood draw.)

State v. Steven L. Sternitzky, 2019AP2185-CR, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Sternitzky argues he was arrested for OWI without probable cause and that his trial on the charge was marred by the judge’s instruction to the jury regarding the presumption of intoxication and automatic admissibility of chemical test results. The court of appeals rejects both arguments.

State v. Michael J. Pierquet, 2009AP2099-Cr, 10/14/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

A jury convicted Pierquet of operating a motor vehicle with a Prohibited Alcohol Content. He argued that the circuit court erred in admitting the results of his blood test and in giving them prima facie effect because the State failed to prove that the analyst who performed the test possessed a valid permit for alcohol testing. The court of appeals disagreed because an employee of the State Lab of Hygiene testified that all of the analysts at the Lab hold a valid alcohol analysis issued by the state.

State v. Donnie Gene Richards, 2020 WI App 48; case activity (including briefs)

Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.

State v. Christopher Drew Helwig, 2019AP448-CR, 6/4/20, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

The circuit court admitted a blood/urine analysis form and lab report containing blood test results into evidence during Helwig’s OWI trial. On appeal Helwig argued that these documents were hearsay. And because the nurse who drew the blood did not testify at trial, the admission of these documents violated the Confrontation Clause. The court of appeals rejects both arguments.

State v. Shannon G. Potocnik, 2019AP523, 4/14/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

There’s a deep split nationwide about whether the community caretaker doctrine can ever permit entry into a home. Wisconsin has held that it can, and this pro se appeal is of course necessarily fact-bound. But the decision is thorough and provides a good summary of state community-caretaker law as it stands, along with a much briefer discussion of blood draws based on exigency.

State v. Justin T. Kane, 2018AP1885-CR, District 4, 2/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Kane’s consent to a blood draw after his arrest for OWI was voluntary under all the circumstances.

State v. Anthony J. Madland, 2019AP146-CR, District 3, 1/28/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Madland asserted that he requested an alternative chemical test under § 343.305 and that the officer who read the “informing the accused” form to him misled him as to his right to request an alternative test. The court of appeals rejects the claims in light of the circuit court’s fact findings.