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Counsel wasn’t ineffective in OWI/PAC prosecution

State v. Eric Trygve Kothbauer, 2020AP1406-CR, District 3, 5/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Kothbauer challenges his trial lawyer’s representation in a prosecution for operating while intoxicated and with a prohibited alcohol concentration. The court of appeals holds trial counsel wasn’t deficient or, even if he was, the deficiency wasn’t prejudicial.

First, Kothbauer claims trial counsel was ineffective for failing to move to suppress the results of the field sobriety tests and blood draw. He argues those results were the fruit of an unlawful arrest because he was arrested without probable cause before the officer conducted the FSTs. He posits he was arrested when he got out of his car after the officer’s repeated requests and was subjected to an unlawful frisk because the officer actually searched the contents of his pockets. Kothbauer says he knew that kind of search couldn’t be done unless he was arrested and was surrounded by four officers and told he couldn’t leave; ergo, he was under arrest. (¶¶3-5, 18-20).

The court disagrees, noting whether a person is under arrest is judged according to an objective standard, not based on the subjective state of mind of the officer or the suspect, State v. Swanson, 164 Wis. 2d 437, 446-47, 475 N.W.2d 148 (1991). The circumstances here wouldn’t lead a reasonable person to believe he was under arrest. Even assuming the frisk was illegal, it’s still the case Kothbauer wasn’t cuffed, was in public view, and no weapons were drawn by the two (not four) officers at the scene when the search occurred (the other two came during the FSTs).  Also, he didn’t ask if he was free to leave till after the FSTs. Under all the circumstances, Kothbauer was only temporarily detained, not arrested, and there was reasonable suspicion for the stop and the temporary detention. (¶¶19, 21-25).

Kothbauer also faults trial counsel for not focusing more on the illegal frisk during the trial as a way of getting the jury to question other things the officer did, including the handling of Kothbauer’s blood sample. But trial counsel did elicit information about it, and that even if he should have done more his failure wasn’t prejudicial. (¶¶26-28).

Separately, Kothbauer argues that trial counsel was ineffective for failing to move to suppress the results of the blood draw because the officer didn’t conduct the FSTs in accordance with the NHTSA Manual and therefore lacked probable cause to arrest Kothbauer. The court rejects this claim. Wisconsin doesn’t require strict compliance with the NHTSA Manual for the results to be used to determine probable cause to arrest for an OWI-related offense, City of West Bend v. Wilkens, 2005 WI App 36, ¶¶12-16, 22, 278 Wis. 2d 643, 693 N.W.2d 324, and the officer had additional information beyond the FSTs that supported probable cause—odor of alcohol, Kothbauer’s admission to drinking, his slowed speech, and the time of of the stop (2 a.m.). (¶¶29-35).

Finally, Kothbauer argues was ineffective for failing to: (1) question the officer at trial about his failure to follow the NHTSA Manual; (2) present the dash camera video at trial; and (3) put Kothbauer’s medical records into evidence. The jury acquitted Kothbauer on the OWI charge, but he says trial counsel’s use of all three of these avenues would have led the jury to acquit on the PAC charge because they would have demonstrated that he was not intoxicated prior to arrest and thus supported his curve defense—that is, that his 0.127 BAC exceeded the legal limit only after he was stopped and before the blood draw one hour, eight minutes later. The court of appeals finds neither deficient performance nor prejudice for trial counsel’s actions. (¶¶40-52).

The circuit court had denied Kothbauer’s postconviction motion without a Machner hearing, which the court of appeals affirms based on its conclusion that the record conclusively demonstrates trial counsel wasn’t ineffective. (¶¶53-54).

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