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OWI – Additional test for intoxication, § 343.305

State v. Stephen R. Tollaksen, Jr., 2012AP778-CR, District 4, 1/10/13

Court of appeals decision (1 judge; ineligible for publication); case activity

The court of appeals affirms the denial of motion to suppress evidence of blood test results where circuit court found that Tollaksen had not requested an additional test to determine the presence of alcohol in his system. The record supported the circuit court’s acceptance of the officer’s testimony that Tollaksen did not request an additional test, as well as the court’s finding that Tollaksen requested a different test instead of, and not in addition to, the blood draw–especially given Tollaksen’s testimony that he asked the officer if he “could have a urinalysis instead of a blood draw” because he did not like needles (¶¶13-14).

The court also rejects Tollaksen’s claim that the officer deviated from the language of the information the accused form, which confused him and frustrated his right to request an alternative test. Tollaksen failed to raise the argument in the circuit court (¶11), and in any event it probably would have been rejected there because the judge found the officer more credible than Tollaksen and “on this topic, the officer testified that he did not deviate in any way from the standard informing the accused form” (¶12).

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