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Factual findings defeat motorist’s claim he did not consent to BAC test

State v. Joseph K. Larson, 2016AP1002-CR, 3/21/17, District III, (one-judge decision; ineligible for publication); case activity (including briefs)

Joseph Larson contends on appeal that the circuit court erred when it concluded he consented to a breath alcohol test after his arrest for OWI.

The officer conducting the test marked “urine” as the type of test requested, but testified this was an error and he had in fact requested and received consent for a blood test. The officer also testified that he had observed Larson for 20 minutes before conducting the test, in accord with Wis. Admin. Code § Trans 311.06(3)(a). The circuit court credited this testimony, which dooms Larson’s claims, on appeal, to the contrary.

We conclude the circuit court’s findings are not clearly erroneous. The court declared Wozniak was credible and relied on his testimony regarding the time and nature of the test of which Larson was advised, agreed to and received, rather than the writings on the form and Larson’s testimony that he expected to receive a urine test rather than a breath test. Furthermore, the court found that the selection of “urine” on the form was a “scrivener’s error” in light of testimony that Larson explicitly consented to a breath test. Larson may himself believe the exhibits carry greater weight than the officers’ testimony, but that alone certainly does not render the court’s findings erroneous.

Larson also argues the breath test was invalid because Wozniak did not conduct a twenty-minute observation period of Larson as set forth in WIS. ADMIN. CODE § Trans 311.06(3)(a) (Mar. 2012), as promulgated under WIS. STAT. § 343.305(6)(b). Larson argues it was impossible for him to have arrived at the jail at 10:13 p.m. because, adding up the stated times in Snow’s testimony, Larson must have arrived at the jail by 10:00 p.m. at the earliest. We disagree. This assertion ignores the court’s explicit credibility finding regarding Wozniak’s statement that he observed Larson for twenty minutes before conducting the test, and that Snow testified he arrived at the jail at 9:35 p.m. Once again, Larson’s disagreement with these findings does not mean they are erroneous, much less clearly erroneous. We thus conclude the circuit court properly denied Larson’s motion to suppress.

(¶¶9-10 (citation omitted)).

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