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Immediate police investigation, testimony not a prerequisite to OWI prosecution

City of Cedarburg v. Katherine D. Young, 2020AP1848, District 2, 3/17/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Young was prosecuted for an OWI 1st offense that did not arise out of a traffic stop or involve police collecting blood or breath samples or even testifying at trial. Can that be done? Sure, it can. And the evidence that was presented at trial was sufficient to convict her, too.

When Young entered the high school where she worked co-workers immediately suspected she was intoxicated. Her speech was slurred and incoherent speech, her walking was unsteady, she exuded an odor of alcohol—the usual. When the boss told her they’d called her mother to come pick her up, she got upset, hid, and so far as anyone knows, walked home. (¶¶9-17).

The evidence for the operating a motor vehicle element of this crime came from surveillance video. That showed her leaving the school building around 9:45 a.m. and getting into a red SUV; at 11:31 a.m. the red SUV returned and parked in Young’s assigned spot. (¶7). Her encounters with co-workers within minutes of her return led them to believe she was drunk. (¶9)

Police didn’t start investigating till a week later and Young eventually got a citation in the mail. (¶2). The absence of immediate police involvement is the basis for her first argument: that as a matter of law, law enforcement testimony, chemical test results, or like evidence is necessary to prove that an individual was driving while intoxicated. No:

¶5     …. Young has not cited, and we are unaware of, any case law to this effect—nor would such requirement seem logical or necessary under the statutory scheme. Certainly, in the typical case, the prosecution will rely on evidence from law enforcement to establish the elementsof OWI, but the law does not preclude establishing these elements solely from lay witness testimony. As the City correctly notes, any argument that such testimony is less probative or reliable goes to the weight of that evidence, not its admissibility. Accordingly, the question is not whether a defendant in Young’s position can be convicted of OWI as a matter of law, but whether clear and convincing evidence supported this OWI conviction.

And the evidence was sufficient. The surveillance video supported the inference she returned to school in her car and the five witnesses from the school supported the conclusion she was intoxicated when she returned to school. (¶¶7-19).

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