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Evidence sufficient despite lack of direct evidence of time of operation

Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.

¶13     Essentially, Busarow is attempting to retry his case on appeal. His arguments merely go to the weight of the evidence, and he fails to identify any unreasonable inferences the circuit court made in reaching its factual findings. After examining the record, we perceive the following evidence as supporting the circuit court’s finding of guilt: (1) [Deputy] Semmerling detected the smell of intoxicants on Busarow’s breath, and observed other physical indicia of Busarow’s impairment due to alcohol; (2) Busarow failed two of the three field sobriety tests that were conducted, as Semmerling testified about in detail and the court observed when it reviewed the squad-car video;… (3) Busarow was unable to control his vehicle, as his vehicle suffered severe damage in the context of a single-car accident occurring on a clear road when he was driving between thirty-five and forty miles per hour; (4) Busarow told Semmerling he had nothing to drink while driving or after the accident, but that he had consumed alcohol up to a half hour before the accident; and (5) as for the distance Busarow walked after the accident, the site of the accident and the Little Rice Resort [where Busarow called police to report the accident] are known points on a map, from which the judge may make reasonable inferences in determining how long it would take Busarow to walk the distance. In addition, the evidence was sufficient to support the circuit court’s finding that the breath test was conducted within three hours of Busarow’s driving, and, accordingly, the court was able to consider that Busarow’s Intoximeter breath test showed his blood-alcohol concentration was .12 at 1:49 a.m….

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