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Challenges to blood draw, use of OWI prior convictions rejected

State v. Julieann Baehni, 2015AP2263-CR, 4/27/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Baehni was charged with OWI, fourth offense. In the circuit she unsuccessfully sought to have the blood draw test results suppressed because she wasn’t given the alternative test she requested. She also collaterally attacked two of her prior convictions, likewise without success. The court of appeals affirms.

Baehni’s blood test challenge is doomed by the circuit court’s findings of fact that she did not request an additional or alternative test after the blood draw, and that her discussion about a breath test before the blood draw was an attempt to avoid the blood draw entirely, and didn’t amount to a request for an alternative test. (¶¶10-14). While the court agrees with Baehni that the law doesn’t mandate the request be made after the primary test is over, the timing is a relevant factor for the circuit court to use in deciding whether the person in fact made a request for a different test. (¶¶15-16).

Regarding the prior convictions:

  • Baehni collaterally attacked a 1990 conviction, but failed to make a prima facie showing that her waiver of counsel in the case was invalid. She didn’t point to specific facts from that case showing she didn’t know or understand about the right to counsel; instead, she basically didn’t remember what happened, and that’s not good enough, State v. Hammill, 2006 WI App 128, 293 Wis. 2d 654, 718 N.W.2d 747. (¶¶17-24)
  • Baehni also collaterally attacked a 1992 conviction. The circuit court initially found that case had been dismissed, so there was no conviction to attack. The state later turned up an out-of-state driving abstract and argued that document proved there was a conviction, at which point the court denied the collateral attack. When Baehni refused to stipulate to the number of priors the court ruled that would be a question for the jury. But Baehni ultimately pleaded guilty, so the existence of the 1992 conviction wasn’t tried to a jury, and the issue of the admissibility of the evidence to support the existence of that conviction was waived by her plea. (¶¶25-27).
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