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Blood test admitted, foundation objection unfounded

City of Stevens Point v. Todd P. Beck, 2015AP978, District 4, 12/17/15 (one-judge decision; ineligible for publication); case activity

State law confers automatic admissibility on the results of blood alcohol tests performed in accord with Wis. Stat. § 343.305, but does the plaintiff’s failure to show compliance with that statute render such results inadmissible?

No. State v. Zielke, 137 Wis.2d 39, 41, 403 N.W.2d 427 (1987). So, in this first-offense OWI jury trial, the lack of any evidence that the officer read the “Informing the Accused” form (sub. (4)) to the defendant does not require reversal.

In [Zielke], our supreme court stated that the “failure to advise the defendant as provided by the implied consent law affects the State’s position in a civil refusal proceeding and results in the loss of certain evidentiary benefits, e.g., automatic admissibility of results.” However, the supreme court further stated that the failure to comply with the implied consent law and the resulting loss of the automatic admissibility does not mean that the results are inadmissible in the separate and distinct prosecution for offenses involving intoxicated use of a vehicle. Id. at 51-52. The court in Zielke concluded that “if [the] evidence is otherwise constitutionally obtained, there is nothing in the implied consent law which renders it inadmissible.” Id. at 52.

(¶9).

But what about those “evidentiary benefits,” which besides automatic admissibility include a prima facie presumption of intoxication? Wis. Stat. § 885.235(1g)(c). Perhaps, absent a showing of compliance with § 343.305, it was error to instruct the jury that the test result alone could prove impairment?

Perhaps. But the appellate court does not address this issue, possibly because it finds defense counsel’s initial trial objection to the test results–“foundation” with no further explanation–did not adequately present the issue to the trial court. (¶¶7-8). It’s unclear from the briefs whether the defense objected to the jury instruction.

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