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State v. Brian A. Oetzman, 2009AP2514-CR, District II, 6/9/10

court of appeals decision (1-judge; not for publication); for Oetzman: Kirk B. Obear; BiC; Resp.; Reply

Traffic Stop – U-Turn

¶8     As such, three rules of the road come into play.Under Wis. Stat. § 346.34(1), no person may turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Wis. Stat. § 346.31.Section 346.31(1) says that where there are markers, the operator of the vehicle must follow those markers.A turn to the left, made from the “straight lane” rather than the marked left lane, violated this law.Wisconsin Stat. § 346.33(1)(a) says that an operator of a vehicle shall not turn a vehicle at an intersection controlled by traffic signals so as to head in an opposite direction. Since the trial court believed the officer’s testimony that the turn was made from the “wrong lane” and since this “wrong lane” turn could only have been made at the intersection, from the record we have, the turn was made at the intersection where there were traffic signals. The U-turn violated this law as well.

The court goes on to strongly imply if not hold outright that Oetzman’s driving behavior, even if lawful in its component parts, nonetheless supported reasonable suspicion for the stop (lingering at a green light a full 5 seconds; going from left to right lane; crossing fog lane for 3 seconds; going “significantly under” the speed limit). “These facts, even if lawful in themselves, were building blocks of information, the totality of which was enough for the officer to suspect that the driver was intoxicated,” ¶10.

BAC Test – Admissibility

¶13 …  If a law enforcement officer testifies that he or she read the defendant the informing the accused form, that testimony tells the finder of fact that the officer did her statutory duty. A prima facie case that the procedures have been followed is then made. If the defendant believes that the form read to the defendant was the wrong one or was incomplete in some way, that is the defendant’s burden to prove because the burden of production has shifted to the defendant.  Therefore, it is the defendant’s responsibility to present evidence supporting the defense theory.

¶14 We reach this conclusion based on City of New Berlin v. Wertz, 105 Wis. 2d 670, 314 N.W.2d 911 (Ct. App. 1981). …

¶15 … In the same manner that we explained in Wertz regarding how questions as to the accuracy of the test performed go to the weight of the evidence rather than to the admissibility of the test, we reach the same answer with regard to the accuracy of the informing the accused form. In sum, the police officer testified that she read the informing the accused form to Oetzman. Thus, this evidence of the law enforcement officer having complied with the implied consent procedure was prima facie credible unless or until overcome by countervailing evidence in the eyes of the fact finder. We reject Oetzman’s argument.

Appellate Record – Composition

¶7     … It is the appellant’s duty to make sure that the appellate record contains all matters which this court needs in order to properly review an issue on appeal. State Bank v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986). Absent such evidence, this court may assume that the missing record supports the trial court’s decision.  Id. As far as this court is concerned, the only evidence is that the turn took place at the intersection because that is the only place where there was a “straight lane” that was differentiated by a left-turn lane and right-turn lane. The trial court found that the turn was made from the “straight lane” and therefore impliedly accepted the officer’s account as credible. This finding is not clearly erroneous.

Oetzman sought to argue that an overhead photo of the intersection supported his claim that he could properly make a U-turn; as just seen, failure to make the photo part of the record dooms the claim. (Recall that just yesterday the court sanctioned counsel for, in part, referring to documents outside the appellate record.) Clear enough. Want to refer to a document on appeal? Make sure it’s part of the record. Fine. But look at the problem from a different angle, using U.S. v. Boyd, 475 F.3d 875 (7th Cir 2007) as the lens: there, the court roundly criticized the parties because “no satellite photo (available free of charge from Google) was placed in evidence to indicate the physical surroundings,” given that the depiction was highly relevant to the issue. Didn’t impede the court in the slightest, though, from itself downloading the photo and appending it to the opinion, id., at 879. Where the issue is one of suppression, the rules of evidence don’t apply, §§ 901.04(1) and 911.01(4), which would make consideration of the photo easier still. Indeed, it is certainly possible (if not quite likely) that the “overhead photograph” put into play at Oetzman’s suppression hearing was a Google satellite download). But that raises another question: why can’t a party refer to such a photo on appeal whether or not part of the appellate record (taking into account relaxation of the rules of evidence on a suppression issue)? This, with any luck, is the depiction of the site in question — whether it is or not is a mere detail, though; you get the larger point. Still, it’s not difficult to sympathize with the court of appeals; why should it go out of its way to do your work?

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