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Court of appeals rejects assorted challenges to drunk driving conviction

State v. Lonnie S. Sorenson, 2016AP1540-CR, 12/5/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Sorenson appeals jury-trial convictions for operating with a PAC and possession of drug paraphernalia. He was also found guilty of operating with a detectable amount of THC in his blood, but this was dismissed by operation of statute. See Wis. Stat. § 346.63(2)(am). He raises ineffective assistance, pretrial discovery, and confrontation issues, but the court rejects them all.

Sorenson raised ineffective assistance in a postconviction motion, which the circuit court denied without an evidentiary hearing. He first argues his counsel should have objected to testimony elicited by the state from its lab analyst that the combination of alcohol and THC would result in more or broader impairment than either substance alone. The court of appeals rejects the challenge on the ground that the analyst only spoke generally of the effects of the drugs, and in fact opined that Sorenson was not physiologically impaired; besides, he was ultimately convicted of the PAC, not an OWI, so impairment was irrelevant. (¶¶12-14). Sorenson also argues his attorney should have gotten a defense expert, but the court finds this claim was forfeited because Sorenson did not raise it postconviction. (¶15).

Sorenson claims the state violated its discovery obligations by failing to disclose its analyst’s calculations of the time he had ingested the THC. The court holds that there was not prejudice to Sorenson. (¶16).

Sorenson finally claims the state violated his confrontation rights when it had the analyst testify about the blood alcohol test (which she did not perform) in addition to the THC test (which she did). The court of appeals holds otherwise, citing State v. Griep, 2015 WI 40, ¶49, 361 Wis. 2d 657, 863 N.W.2d 567, for the notion that “[A] highly qualified witness, who … supervises or reviews the work of the testing analyst may provide an independent opinion at trial.” (¶18).

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