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Circuit court properly rejected claim that refusal was justified due to physical disability or disease

City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)

McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.

First, the trial court properly exercised its discretion in excluding McKee’s medical records:

¶12     McKee first argues that the circuit court erred when it excluded the medical records showing that he had GERD or Barrett’s esophagitis and that he was prescribed medication for that condition. McKee admits that the records were hearsay, but he maintains they were admissible under Wis. Stat. § 908.03(6m) as patient health care records. Patient health care records do not require a custodial witness if, at least forty days before trial, the moving party provides to all appearing parties an “accurate, legible and complete duplicate of the patient health care records for a stated period certified by the record custodian.” Sec. 908.03(6m)(b)1. (emphasis added). McKee’s record submissions did not contain any such certification, and they were not provided to the City at least forty days before trial. McKee otherwise failed to present any qualified witness to lay a proper foundation for the court to admit the records into evidence or to testify that his condition prevented him from providing a breath test on the date of his arrest.

McKee tried to fill this gap on appeal by attaching a doctor’s letter and medical records in an appendix to his reply brief; needless to say, the court of appeals refused to consider documents not in the record. (¶13). Nor does it consider McKee’s argument that the records should come in under the “catch-all” hearsay exception, § 908.03(24), as McKee failed to develop this argument or cite authority in support of it. (¶14). He runs into the same problems with his argument that the officer should’ve offered him an alternative test. (¶17).

As to the trial court’s finding as to McKee’s real reason for refusal:

¶16     The officer testified that McKee refused to take a breath test specifically because he was concerned about his employment status, not because of reasons related to his GERD. McKee disputed this version of events and claimed to have explained to the officer that GERD or Barrett’s esophagitis prevented him from taking the breath test. The court, however, found the officer more credible than McKee, and it was free to reject McKee’s unsubstantiated testimony that his purported diagnoses prevented him from blowing into a machine. See Wis. Stat. § 805.17(2). Because the circuit court’s findings of fact are not clearly erroneous, we conclude the court properly determined that McKee failed in meeting his evidentiary burden to show he properly refused the breath test.

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