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COA rejects some interesting challenges to denial of suppression in OWI case

State v. Jennifer A. Jenkins, 2020AP1243-CR, 3/1/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Jenkins, convicted of OWI 2nd, raised some interesting and unusual challenges to the trial court’s order denying her motion to suppress.  (1) The arresting officer’s testimony was incredible as a matter of law. (2) He unlawfully stopped her car outside of his jurisdiction. And (3) her blood draw was painful, inordinately long, and therefore unreasonable. The court of appeals rejected all of them.

According to the criminal complaint, an officer saw Jenkins’ car cross the center line “around” Wisconsin Avenue and Popp Lane in Grand Chute. He did not stop her immediately. Instead, he followed her another mile into Appleton, watched her struggle to stay in her lane, and saw her cross the center line again at the intersection of Badger Avenue and Wisconsin Avenue.

At this point, the officer pulled Jenkins over. After administering FSTs and a preliminary breath test, he took her in for a blood draw. Jenkins asserted that the phlebotomist had trouble finding a good vein and so pricked her multiple times and took an unusually long time to complete the draw.

Jenkins argued that the officer’s testimony that she crossed a center line at Wisconsin Avenue and Popp Lane in Grand Chute is inherently incredible because a screenshot from Google Maps of that area shows a raised, concrete center median between lanes of traffic. She included the screenshot in her brief and argued that it proves it would have been impossible for her to cross the center line.

The court of appeals acknowledged that it has relied on “general distances” obtained from Google Maps in the past. See State v. Smith, No. 2016AP2453-CR, unpublished slip op. ¶3 n.1 (WI App Feb. 13, 2018). However, it noted that street-level images from Google Maps were a different matter. Opinion, ¶14 n.4

Ultimately, the court dodged the judicial notice question. It held that even if it took judicial notice of center median, the trial court’s finding that Jenkins crossed the center line in Grand Chute was not “clearly erroneous.”

In order for testimony to be “incredible as a matter of law,” it must be “in conflict with the uniform course of nature or fully established or conceded facts.” See State v. Vollbrecht, 2012 WI App 90, ¶28 n.18, 344 Wis. 2d 69, 820 N.W.2d 443 (citation omitted). The median was only 200 feet long. The officer testified that he observed Jenkins cross the center line “around” Wisconsin Avenue and Popp Avenue.  If she crossed right after the median, the officer’s testimony still would have been consistent with the screenshot. Opinion, ¶18.

Next, Jenkins argued that the officer violated §175.40(2) which allows an officer “in fresh pursuit” to follow a person anywhere in the state to make an arrest.  See State v. Haynes, 2001 WI App 266, ¶6, 248 Wis. 2d 724, 638 N.W.2d 82. Specifically, he allegedly saw her commit a traffic violation in Grand Chute but waited until she crossed into Appleton to arrest her. This argument failed due to the officer’s testimony. He said he did not arrest Jenkins immediately because he wanted to collect more evidence. Ultimately he followed her only 1.4 miles, including just .4 miles into Appleton. Opinion, ¶¶21-26.

Although the court of appeals could have ended with the holding that the officer had the authority to arrest Jenkins under §175.40, it proceeded to issue some dicta. It held that suppression is not an appropriate remedy for a §175.40 violation. Opinion, ¶¶27-31.

Finally, the court of appeals rejected Jenkins’ argument that the blood draw was unusually long and painful because the only person who testified on this subject was the officer. His testimony did not support her claim. Opinion, ¶¶32-35.

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