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Evidence sufficient on time of driving for OWI

Fond du Lac County v. Christy Ann Kasten, 2017AP343, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The only real issue in this case is whether the court, in this bench trial, had sufficient evidence to conclude that Kasten had driven within three hours of her blood draw at 10:52 p.m. The court of appeals holds that it did:

The circuit court’s finding that Kasten drove at approximately 8:10 p.m. was not clearly erroneous. The court’s conclusion rested on the time dispatch initially contacted [the arresting deputy] at 8:30 p.m. and the inferences that could be drawn from that fact. Kasten was driving when [Kasten’s stepfather] initially contacted the police; she does not contest [the stepfather]’s testimony that she had not returned when he called dispatch. While [the stepfather] could not remember the exact time he called, it was reasonable for the circuit court to infer that dispatch would—with reasonable promptness—notify officers in an attempt to prevent any harm. This is not pure speculation as Kasten insists, but a reasonable inference based on the nature of [the stepfather’s] report. We do not agree with Kasten that the fact finder (here, the court) cannot infer, without testimony stating as much, that the dispatcher acted in a reasonably prompt manner to notify on-duty law enforcement of a potentially dangerous situation.

(¶11).

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