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PBT Admissibility – OWI, Sufficiency of Evidence

City of Mequon v. Michael R. Wilt, 2011AP931, District 2, 11/9/11

court of appeals decision (1-judge, not for publication); for Wilt: Walter Arthur Piel, Jr.; case activity

Because the trial court in this bench trial did not rely on the breath test result in finding Wilt guilty of OWI, therefore his argument that the PBT result was inadmissible need not be reached, ¶¶16-17. As to whether the evidence is sufficient to sustain the conviction absent the test result:

¶23      Proof of impairment was sufficient and established by clear, satisfactory and convincing evidence:  Gaidish arrived ten minutes after being dispatched to a one-car accident.  Gaidish saw Wilt standing next to a vehicle on the side of the road in a ditch with severe front end damage.  Wilt appeared to be confused, was unsteady on his feet, had bloodshot, glassy eyes and smelled of alcohol.  Wilt admitted to driving the vehicle, said he was “trying to get home,” changed his story several times and finally admitted that he was coming from a gentleman’s club where he had consumed three glasses of wine three hours prior.  Gaidish gave Wilt every accommodation during the investigation:  he allowed Wilt to perform the field sobriety tests inside due to the rain and, even though Wilt told Gaidish he could perform the standard balance tests, Gaidish administered two nonbalance tests in case the MS was a factor in performing the balance tests.  Wilt ultimately failed four out of the five field sobriety tests he was asked to perform.  And, there was no evidence from Wilt at the time or during his testimony at trial to show that the MS affected his ability to perform the tests.

¶24      We are satisfied that the evidence is sufficient to show that Wilt was under the influence of an intoxicant rendering him incapable of safely driving at the time he drove his vehicle into a guardrail and landed it in a ditch.

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