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Arrest, conviction of unconscious driver upheld

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.

At 12:30 a.m. an officer found McCaskill in the driver’s seat of a car parked with its lights on. McCaskill’s lights, by contrast were out: He was unconscious and unresponsive. No one else was in the car. The officer called for EMTs and, while awaiting their arrival, McCaskill vomited, enhancing the already-present odor of alcohol. The officer learned the car was registered to a rental agency and discovered paperwork in the car showing McCaskill had rented it. He also could find no indication anyone else had been in the car. McCaskill regained consciousness at the hospital and told the officer he had been drinking at a friend’s house earlier that evening but remembered nothing between that and waking up in the hospital. He was then arrested for OWI. (¶¶3-5, 17-18).

The court holds there was probable cause to arrest, rejecting McCaskill’s reliance on Village of Cross Plains v. Haanstad, 2006 WI 16, ¶¶3-4, 10, 288 Wis. 2d 573, 709 N.W.2d 447, where there was undisputed evidence that the defendant did nothing more than sit in the driver’s seat and never touched or manipulated any of the car’s controls, and that the defendant had been driven to the location of the arrest by a friend, who had left the vehicle running and the headlights on.

¶12    Unlike Haanstad, it is not undisputed in the present case that McCaskill only sat in the driver’s seat of the vehicle and there was no direct evidence that McCaskill had been driven to the location where the vehicle was found by someone else. The State in this case presented circumstantial evidence from which a reasonable inference could be drawn that McCaskill did “drive” or “operate” his vehicle within the meaning of Wis. Stat. § 346.63(1)(b). Specifically, there was evidence that McCaskill’s car was found, with its lights on, parked in front of a private residence that McCaskill had no association with, McCaskill was found in the driver’s seat of the vehicle, McCaskill had rented the vehicle, and McCaskill admitted that he had consumed alcohol prior to being found unresponsive in his vehicle.

¶13     Certainly there is disputed evidence as to whether McCaskill had driven or operated the vehicle in which he was found—the officers could not remember if the car was running or whether the keys to the vehicle were in the ignition, and it is a possibility that someone drove McCaskill to the location where his vehicle was found and McCaskill moved to the driver’s seat after the vehicle was parked. However, there was ample circumstantial evidence from which a police officer could reasonably conclude that McCaskill had driven or operated the vehicle.

McCaskill also gets nowhere arguing that, while the evidence supports a finding that he “could have” driven the car to where it was found and is the most likely person to have done so, “could have” is insufficient to prove beyond a reasonable doubt that he did. If more than one inference can be drawn from the evidence, the reviewing court will follow the inference that supports the jury’s finding “unless the evidence on which that inference is based is incredible as a matter of law.” State v. Poellinger, 153 Wis. 2d 493, 506-07, 451 N.W.2d 752 (1990). McCaskill does not assert that the trial evidence is “incredible as a matter of law,” and the court concludes that the evidence supports a reasonable inference that McCaskill operated the vehicle and is therefore sufficient to support the verdict. (¶¶14-20).

In a related vein, the court rejects McCaskill’s claim that the real controversy wasn’t tried because the jury rendered “inconsistent” verdicts—guilty of PAC, not guilty of OWI. Any “inconsistency” is due to the different elements, as OWI requires proof of impairment while operating; because there was no direct evidence of operation in this case, the jury could rationally conclude that element wasn’t proven. (¶¶27-29).

Finally, McCaskill’s collateral attack on a prior conviction was properly denied. McCaskill claimed that when he waived counsel in the prior case, the court didn’t determine whether he was competent to proceed pro se and didn’t advise him of the maximum penalties he faced. But he doesn’t assert or prove he was incompetent to represent himself. He also never claims that he didn’t know the maximum penalties (and the record of the prior case shows he probably did know them). Thus, he hasn’t demonstrated that he didn’t know or understand information which should have been provided in the previous proceeding and, because of that lack, didn’t validly waive his right to counsel. State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92. (¶¶21-26).

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