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Findings of fact doom challenge to refusal

State v. S.G./Waukesha County v. S.G., 2015AP2138 & 2015AP2139, District 2, 8/24/16 (one-judge decision; ineligible for publication); case activity (including briefs)

S.G. challenges the revocation of her driver’s license for refusal, arguing the arresting officer didn’t sufficiently convey the implied consent warnings to her. She also challenges the sufficiency of the evidence for her OWI conviction. Neither challenge succeeds.

S.G. is diabetic, and after her arrest for OWI she began to experience symptoms of elevated blood sugar, including a racing pulse, confusion, and inability to concentrate. Police ultimately called an ambulance, and EMTs found she had elevated blood sugar and allowed her to change her insulin pump. S.G. testified the officer read the “Informing the Accused” form while she was suffering these symptoms, and argued it was unreasonable to give her the warnings while she was under “medical duress” and unable to understand them, and asserts the officer should have reread the warnings after she was treated by the EMTs. But the officer testified he read the form before any symptoms manifested themselves, and that S.G. said nothing about her symptoms and seemed to be coherent and to understand what he was saying. (¶¶6-11). The circuit court found the officer’s contrary testimony more credible (¶14), and S.G.’s claim fails because of that credibility finding:

¶19     …. Because the court found the deputy’s testimony credible and S.G.’s testimony that she did not understand the warnings incredible, i.e., not believable, and these credibility findings are supported by the evidence,.. we accept the deputy’s testimony as true. See Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979) (“[W]hen the trial judge acts as the finder of fact, and where there is conflicting testimony, the trial judge is the ultimate arbiter of the credibility of the witnesses.”). Because the deputy obviously observed that S.G. could understand standard spoken English, observed her to be in sufficient condition to understand the warnings at the time he conveyed them to her, and, relatedly, observed no objective indication—due to her diabetic condition or otherwise—that she might not be able to understand them, we conclude that the method the deputy used to convey the warnings to her—reading them to her a single time, in English—was reasonable.

As to her sufficiency challenge, the evidence showed that: she was operating her vehicle without her headlights on at 2:00 a.m.; she drove over a curb with two tires; she emitted a moderate odor of and admitted to consuming alcohol, failed field sobriety tests, and refused a  breath test; and she requested the “professional courtesy” of the deputy not pursuing her for OWI because her brother was a police officer. (¶¶3-6). This is enough to support the finding she was guilty of OWI:

¶24     …. To begin, the time of day when all this transpired is a time more often associated with intoxicated driving. See State v. Post, 2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634 (poor driving around “bar time” lends to the belief that operator is driving while intoxicated). Second, we believe it highly unlikely a sober driver would have the evidentiary combination of smelling of alcohol, driving on an interstate freeway at 2:00 a.m. without headlights on, driving over a curb, and failing field sobriety tests. Additionally, S.G.’s refusal to submit to a breath test and request for a “professional courtesy” both indicate her consciousness of her guilt—that she knew she had consumed an amount of alcohol that might make her operation of the vehicle illegal and she did not want the deputy to discover and pursue this. These facts strongly support the circuit court’s determination that S.G. was intoxicated at the time she operated her vehicle….

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